Thursday, September 7, 2017
In case readers missed it in the recent flurry of news about the Deferred Action for Childhood Arrivals (DACA) program, here's the link to UC Davis professor Rose Villazor's op ed in the New York Times, What Do Dreamers Do Now?. The Times also ran its education issue this weekend, featuring an article on the resegregation of American schools in The Resegregation of Jefferson County. Blog editor Derek Black discussed the court order involved in his post this summer, Why Schools Still Can't Put Segregation Behind Them.
Minnesota Court of Appeals Rejects Constitutional Challenge to Teacher Tenure, But Did It Focus on the Wrong Reasons?
Earlier this week in Forslund v. Minnesota, the Minnesota Court of Appeals upheld the dismissal of plaintiffs’ challenge to the teacher tenure statutes in the state. As in Vergara v. California, the Forslund plaintiffs had argued that teacher tenure statutes violate their right to education under the state constitution because they keep ineffective teachers in the classroom. The Minnesota Court of Appeals held that plaintiffs’ claim was non-justiciable. More specifically, the court reasoned that considering plaintiffs’ claim on the merits would require the court to adopt qualitative standards regarding what amounts to an adequate education and ineffective teaching. Judgments regarding those standards, according to the court, were reserved to the legislature, which had yet to set those standards.
In reaching its decision, the court relied heavily on another recent court of appeals case, Cruz-Guzman v. State. In Cruz-Guzman, the court had rejected, as non-justiciable, plaintiffs claim that school segregation violated their right to education. The Minnesota Supreme Court has since granted certiorari in Cruz-Guzman. Before the Supreme Court, education law scholars and the Education Law Center point out in an amicus brief that the court of appeals wrongly decided Cruz-Guzman. High courts routinely adjudicate educational adequacy and equality claims. The Minnesota Court of Appeals refusal to do so in Cruz-Guzman marks it as an outlier. Moreover, Minnesota Supreme Court precedent in Skeen v. State recognized that these types of claims are justiciable in Minnesota as well.
The Court of Appeals in Forsland does identify some potential statutory standards for assessing plaintiffs’ claims, but reasons that they are insufficient. While the court correctly indicates that those statutes do not definitively resolve plaintiffs’ claim, they do provide baselines for the court to rely on. Rather than justiciability, the problem seems to be an unwillingness of this court to engage statutory and constitutional interpretation. But that is the exact type of inquiry that other courts have undertaken.
Putting those justiciability critiques to the side, the court of appeals does deserve some credit. In a few instances, it skirts close to the merits of the case and hints at what I believe is the fatal flaw in teacher tenure challenges: “ineffective teachers will remain in the education system even if the teacher-tenure statutes are held unconstitutional” and “Appellants do not identify what percentage of ineffective teachers would demonstrate an unconstitutional burden on children’s right to an adequate education.”
As I explain in The Constitutional Challenge to Teacher Tenure,
First, plaintiffs lack evidence to demonstrate that tenure is causally connected to ineffective teaching. Ineffective teaching might persist with or without tenure. For instance, labor market forces, segregation, school funding, and school leadership significantly contribute to ineffective teaching. No evidence suggests that tenure supersedes these factors. Moreover, even if eliminating tenure allowed administrators to more easily remove ineffective teachers, eliminating tenure could also produce indirect effects that might undermine the teaching profession overall. If so, the net result of eliminating tenure could be negative, and tenure would not play the causal role that plaintiffs assume.
Second, even if tenure causes ineffective teaching, plaintiffs have not demonstrated that the number of ineffective teachers that tenure protects rises to the level of a substantial and systematic educational deprivation. For instance, one out of a student’s ten teachers may be ineffective, but that teacher does not necessarily undermine the student’s overall educational opportunity to the extent necessary for a court to deem the student’s education inadequate. Even if inadequate, plaintiffs may need to show systematic repetition of the problem. Otherwise, random local variation, rather than state policy, would be the cause of the inadequacy. . .
Third, ignoring these and other serious causal questions, plaintiffs rely on generalized social science about the effects of quality teachers on student outcomes. This generalized research does not address the effects of tenure on student outcomes. Even if it did, generalized evidence of this sort is insufficient to establish the specific state level causation that courts have required in school funding cases.
Yet, on their face, teacher tenure challenges present plausible and justiciable claims. If plaintiffs state plausible and justiciable claims, rules of civil procedure in many states provide them the right to attempt to make their claim in court, even if plaintiffs are probably wrong. Therein lies the quandary in teacher tenure challenges. When they present claims that will almost certainly fail when we dig into the facts, should courts be required to expend their resources on the case? As a matter of practicality, that seems like a bad idea. But given that plaintiffs dispute the facts, some state rules of procedure would allow them to move forward anyway.
The one saving grace for dismissing these cases is that the particular remedy plaintiffs ask for in these cases raise serious separation of powers concerns. As I explain,
Plaintiffs identify tenure as a singular flaw in state law and its elimination as a singular solution. No prior litigation to enforce the right to education has ever narrowed its focus so far, and for good reason. The details of educational policy, including solutions to constitutional violations, rest within the discretion of legislatures. Where more than one solution to a constitutional violation is possible or reasonable, constitutions vest legislatures with the discretion to choose among them.
The potential solutions to ineffective teaching and teacher removal are multifaceted, placing them within the domain of the legislature and making them ill-suited to judicial prerogative. Moreover, plaintiffs assume that some other better alternative to a tenure system exists, but current research and litigation indicate serious practical and constitutional due process flaws in the alternatives. None of the foregoing is to minimize the problem of ineffective teaching. Ineffective teaching demands a solution, but presuming that eliminating tenure through constitutional litigation is a solution, much less the best among many competing possibilities, is dangerous.
Read my full analysis of teacher tenure challenges here.
Tuesday, September 5, 2017
Two articles posted to ssrn.com examine the recent criticism of Title IX procedures for the accused in campus sexual assault investigations. Details are below.
Excerpt from Prof. Buzuvis's abstract: This Article examines the recent spate of disciplined-student cases in an effort to harmonize Title IX compliance with the procedural rights of students accused of sexual assault. The Article argues that neither the fact of litigation by disciplined students nor the examples of their occasional success undermines Title IX and its application to sexual assault. Such litigation is not evidence of a problem with Title IX or a reason to withdraw universities’ responsibility to engage a prompt and equitable response to sexual assault.
Adapted from the author's abstract: College campuses are a site of intractable clash between advocates fighting gender violence and proponents of students’ due process rights – or so the popular press, legal journals, and some recent law suits claim. In fact, these two camps share much, including common ideological commitments to education access, investment in school discipline systems’ actual and perceived legitimacy, and benefit under a rapidly developing legal regime. Despite assumptions to the contrary, federal school sexual assault law provides accused students with procedural rights unavailable elsewhere in federal law for students accused of any other form of misconduct. One might think, then, that advocates for student due process would celebrate the expanded procedural rights available in gender violence disciplinary hearings. Despite these commonalities, critics and advocates maintain a narrative of warring factions, explained in large part by rape exceptionalism and the dominance of criminal law in the public imagination regarding responses to rape and other sexualized harms. This Article maps out the two movements’ overlooked common ground in order to demonstrate the great loss to students that results from the warring factions narrative.
Removing Confederate statues is news again, which reminds me of a high school sports schedule that I saw while traveling in Oklahoma last fall. The schedule was for an Oklahoma high school sports team called the Savages, illustrated with the expected imagery of a Native American face and an arrowhead. As thousands of students start their public education this fall, they will enter schools where mascot names also are considered as slurs for their identity. What matters is the present meaning of these symbols, mascots, and names, where children are educated. In Montgomery, Alabama, students continue to be educated in places named after men who would not have recognized most of the current students as human. Not content with refusing the change the names, the state later preserved Confederate school names into law under the guise of historical preservation, even though many of the Civil War-era school names occurred during the same periods that Confederate statues were erected to resist desegregation and against the wishes of at least one CSA general. While I am often told how bored and resentful Americans are with "identity politics," some of us are content to saddle schoolchildren with those identities. As we take down monuments that no longer reflect our values, let us also revisit the names of the places where our schoolchildren attend each day, when those names neither honor those values nor the children inside.
Last week, in Henry v. S.G., the Supreme Court of Georgia placed a significant dent in the logic of zero tolerance discipline. The case involved a fight between two high school students. In typical fashion, Locust Grove High School automatically suspended both students. After all, there was a video of the fight and both students were involved. "The [school] hearing officer found S.G. guilty of violating the rules with which she was charged 'for being involved in a fight on the school grounds.'”
The problem is that the video strongly indicates that one of the students was the victim. S.G. was chased down by another student and then tried to avoid the fight, going so far as to hold her hands up and walk away. But after she walked away, the other student lunged at her and the fight ensued.
The Georgia Supreme Court found that being a participant to a fight is not enough alone to justify an expulsion. The Court hung its analysis on the fact that a Georgia statute grants individuals the right to use self-defense and that the state board of education has also previously recognized self-defense as an affirmative defense in discipline proceedings. Readers might recall a similar case in Florida involving a student who "stood her ground" after exiting the school bus.
The troubling part of these cases is how heavily they rest on these statutory rights of self defense. In the absence of these statutes, a school might theoretically determine that self-defense is not tolerated. Significant precedent regarding school's discretion would support the schools.
As I argue in Ending Zero Tolerance, some zero tolerance policies are constitutionally irrational and should be struck down on that basis. Of course, when a statutory rationale exists, avoiding constitutional questions is appropriate. One might, however, read these statutory cases as implicitly bolstering the irrationality of zero tolerance. These state legislatures have recognized the impropriety of punishing those who may very well be victims. It is not that the state wants people to fight back, but that punishing them under these circumstances defies logic. The aggressor and the defender are simply not comparable in terms of culpability (assuming the defender does not use the occasion to overreact).
The Minnesota Supreme Court took a step toward this approach last year when it held that a student's intent in a weapons case matters. The student had accidentally left a knife in his backpack that he used for cutting twine on the farm over the weekend. The Court held that this accidental possession of a weapon did not amount to a "willful violation" of school rules.
Together, these cases confirm two points emphasized in my book. First, students seeking to challenge expulsions and suspension generally stand a better chance in state courts than federal courts. Unlike federal courts, these state cases involve courts taking the issues very seriously and trying to reach a decision that respects student rights. Second, courts can and must play a role in student discipline cases. They are the last line of defense for students. Many schools are still willing to hand out what the most extreme forms of punishment that, without courts, will go unchecked.
Thursday, August 31, 2017
Illinois has long been one of the worst offenders in terms of school funding fairness. It is one of the wealthier states in the nation, yet the effort it exerts to fund education has been among the worst. School funding fairness reports have regularly ranked its effort as a D or low C in comparison to other states. The most troubling feature of Illinois school funding, however, has been how unfairly it distributes the meager school funds that it actually generates.
In the 2010 funding fairness report, Illinois ranked 48th in the nation in terms of funding levels in districts serving moderate numbers of low-income students compared to those with almost no low-income students. Districts serving moderate numbers of low-income students received 22% less funding per student than districts with few to no low-income students. The 2017 report showed the same problem. Illinois ranked 47th on this metric and the funding gap had grown to 23%.
The blame for this gap has rested squarely at the feet of the state legislature, which has chosen to place extraordinarily high burdens on local school districts to fund education themselves. With little state support, this districts are left to sink or swim on their own. Too many tread water or simply sink.
The irony is that Illinois' state constitution includes one of the strong education guarantees in the nation. Article X of the state constitution provides:
A fundamental goal of the People of the State is the educational development of all persons to the limits of their capacities.
The State shall provide for an efficient system of high quality public educational institutions and service.
I will refrain from an exegesis of this clause and its history, but would emphasis that it has two explicit phrases that are missing from most other state constitutions: "fundamental" and "high quality." The crucial question under state and federal constitutional law has been whether education is a fundamental right. Illinois states it as a fundamental goal, which adds a distinction, but the all-important word fundamental is there.
The other crucial question in state courts has been whether the state constitution can be interpreted as some sort of quality mandate and, if so, what is that mandate. Illinois' constitutional language leaves no doubt. The word "shall" indicates a mandate and "high quality" directly answers the other question.
Nonetheless, the Illinois courts have done nothing to hold the state accountable for complying with these constitutional mandates. Unlike the majority of other state court systems, Illinois courts have said school funding raises a political question and, thus, is left to the discretion of the legislature. Aggrieved citizens' only recourse, said the Illinois Supreme Court, is the ballot box. Well, it has taken decades, but the politics in Illinois have finally shifted.
On Tuesday, the state Senate passed a new school funding formula. The bill amended and strengthened the house version and the governor has said he will sign it. According to reports, it will drive far more funds toward needy districts and place less reliance on local property tax. This new formula is said to be "evidence based," meaning that it responds to student and district need rather than geographic politics.
It sounds like the state is about to take a major step forward, but I will wait for someone like Bruce Baker to run the numbers and confirm it. I also cannot help but note that the bill included new money for tax credits for private school, otherwise know as neo-vouchers. I did not follow the politics on this, but imagine the deal was held hostage by an ideological stance on vouchers.
Tuesday, August 29, 2017
Five year ago, as part of a civil rights symposium, I reflected on the long history of educational opportunities and rights in the United States. The result was an article titled, Education's Elusive Future, Storied Past, and the Fundamental Inequities Between. I attempted to
situat[e] current educational realities and reforms within a broader historical context and argue[d] we are at the end of a period of retrenchment and currently in a transitional phase that could usher in a new era of opportunity expansion. However, none of the current reform proposals are capable of seizing this opportunity. Each of the current reforms suffers from one of two flaws: a refusal to take seriously the lessons of past reform efforts or an insistence that we do more of the same. The task of educational reform is, first, to appreciate that, based on historical cycles, the opportunity for significant change is possible in the near future and, second, to redouble efforts to develop theoretical frameworks that can animate a new era.
In retrospect, I see both merits and flaws in those thoughts. The flaw was that the failure to fully appreciate how retrenchment would continue to run strong in education. I was simply too optimistic. On the the other hand, by situating the retrenchment in the broader context, I could characterize it as temporary and likely to be overwhelmed by deeper historical forces. While that retrenchment continues in many respects, recent polls showing families increasingly skeptical of market based reforms and more committed to traditional public education suggest that we might be tipping back toward progress.
The primary point of the article, however, was to emphasize the danger in focusing on current events and circumstances in isolation. While the long view of events necessarily entails speculation, the short view is more susceptible to misinterpretation. Below is another essay I recently published that applies that same frame of analysis to the recent events in Charlottesville and briefly draws on education's history:
Charlottesville: A step in our long arc toward justice
The number and exuberance of white nationalists who descended on Charlottesville sent emotional tremors through the nation. Some worried that this was the beginning of an expanding movement that would hearken us back to darker times.
And many felt that President Donald Trump’s comments only made matters worse. The president’s implied moral equivalency between racist elements and counterprotesters emboldened the former: David Duke, a white nationalist leader and former KKK grand wizard, thanked the president for his “honesty” and willingness to “condemn the leftist terrorists.”
As a civil rights scholar, however, this naked display of racism does not dampen my expectations for racial justice. We have been here before.
In the 1960s, Martin Luther King Jr. marched with thousands of people for African-American voting rights and was met by violent opposition. The hostility caused some to doubt whether justice was still at hand, but King believed it was a setback that would be overcome. Quoting the wisdom of a 19th-century Unitarian minister, King famously said, “The arc of the moral universe is long, but it bends toward justice.”
The public outcry over Charlottesville, along with my own reading of the long history of civil rights, only confirms King’s truth. For better or worse, Charlottesville is part of our nation’s long moral reckoning – one that reveals we’re still bending toward justice.
Our greatest racial reckoning began in the Civil War, but it didn’t end there. The three decades that followed the war were, in their own ways, just as radical.
Between 1863 and 1877, the United States literally, politically and ideologically rebuilt itself. In the immediate aftermath of the war, our nation amended its constitution three times: abolishing slavery, granting African-Americans citizenship and guaranteeing equality, fairness and voting rights for all. In 1867, Congress passed the Reconstruction Acts, which required southern states to rewrite their state constitutions in order to be part of the new conceptualized Union.
Southern states conceded, ushering in changes that would have been unimaginable just a few years earlier. In South Carolina, for instance, African-Americans were actually a majority of the delegates at the state’s 1868 constitutional convention. And in 1870, Jonathan Jasper Wright became the first African-American to serve as a state supreme court justice.
South Carolina was no outlier. African-American political participation across the South increased dramatically, leading to progressive public policies in education, voting and civil rights. Within just a few short years, more African-Americans served in Congress than at any other period for the next hundred years.
Despite the incredible progress that was made, Reconstruction’s changes were understandably fragile, maintained only by the presence of Union soldiers. When they left the South in 1877, a new era began: what southerners called “Redemption.”
Through violence, corruption and legal manipulation, southern whites would disenfranchise African-Americans and regain political control. They would then pass an ever-expanding list of Jim Crow laws designed to limit other basic rights. While no longer slaves, African-Americans were, in effect, reduced to second-class citizens.
Yet, Redemption could not entirely rewind the nation to a pre-Civil War state. African-Americans continued to serve as elected officials (though in smaller numbers) and made steady gains in education, business and property.
African-American business and land ownership continued to increase, hitting all-time highs in the early 1900s. Access to education was even more impressive. The most dramatic jump in the African-American school enrollment occurred during Reconstruction, but the enrollment gap between whites and blacks continued to close for the next century. By the time Brown v. Board of Education was decided, fewer than 10 percentage points separated the number of black and white kids enrolled in school.
In short, what Reconstruction built took Redemption decades to tear down. And even then, much of Reconstruction could never be destroyed completely.
Obama, Trump and Charlottesville
Fast forward a century. The Civil Rights movement has achieved numerous successes and the nation has elected its first black president – not once, but twice.
For the optimistic (or perhaps naive), this moment symbolized an end to the long struggle for equality, rather than a landmark in then nation’s ongoing arc toward justice.
For white nationalists, however, the Barack Obama presidency was its own modern Reconstruction and, thus, the election of Trump the beginning of another Redemption.
Any number of data points might confirm white nationalist hopes (and others’ fears): Steve Bannon in the president’s inner circle; Attorney General Sessions’ intent to crack down on drugs and discrimination against whites; and a Republican Party that just cannot quit its president, no matter how far right he tacks on social issues. Of course, these new events come on top of preexisting racial inequalities in nearly every aspect of life.
But I believe the defining moments in our moral arc are the swift, sharp rebukes of this “redemption.” Within a week of the violence in Charlottesville, politicans, business leaders and individuals of all political stripes made it clear that racist ideology and its overt manifestations are no longer acceptable. Equally important, people of good will have taken to the streets to show that they will not quietly abide intimidating and hurtful rhetoric.
White supremacists have seemingly sparked what not even Martin Luther King Jr. could: a supermajority insisting that America will not abandon equality and inclusiveness.
What the future holds
Jim Crow laws dominated everyday life for a century following Reconstruction. That so-called Redemption was so deep-rooted that it took a multi-decade civil rights movement just to eliminate explicit discrimination in the law books. Many of the practical, sociological and psychological effects of slavery and racism, however, are still with us today.
Sadly, there are those who believe we still need a modern Redemption: White supremacists and neo-Nazis came out in force to defend a Confederate statue. Yet, the lesson to take from Charlottesville is not that those ideas persist, but that they are being sharply and quickly rebuked by a moral majority. Unlike times of the past, there is no mainstream constituency willing to overtly defend racism. And so, unlike the years after the Civil War, no actual redemption period will begin, much less live a long life.
Charlottesville also reveals that our moral arc is not unbending. It will flex uncomfortably at times, but it continues to move toward justice.
This is no guarantee of what will happen tomorrow. As King made clear, progress requires that people of good faith struggle against inequality. Our nation’s growing distaste for racism should not be mistaken for the actual will to fight for equality. In many ways, complacency is what made Charlottesville possible in the first place.
The United States is a better place today than it was a hundred years ago, and it can be even better in the years to come. But I believe we can achieve that only if we maintain an open dialogue and stand up for the equality that still proves elusive for so many Americans.
Thursday, August 24, 2017
For the third year in a row, public schools will begin the year with too few qualified teachers to cover their classes. Every state in the country has reported a shortage to the U.S. Department of Education. The shortage appears to have eased in some places and intensified in others. Edweek reports
[Oklahoma] issued a record-setting 1,160 emergency certifications in 2016-17 and 855 by the beginning of August for this academic year. These certifications allow people without a teaching certificate to teach for one year, or allow a certified teacher to teach a new subject before getting recertified.
And in Nevada, the fast-growing Clark County district, which includes Las Vegas and is the fifth-largest in the country, is starting its school year with almost 400 teaching vacancies—significant, though a far cry from the more than 900 openings the district had at the start of 2015-16.
Numbers like these, however, vastly understate the problem in some states. Confronting an unmanageable shortfall, states like California, Arizona, and others have simply changed the law regarding the credentials it takes to step foot in the classroom. California developed a program that allowed interns to become full-time teachers so long as they promised to complete their studies on the weekends. And by intern, I mean someone who is just starting their education studies. This summer Arizona passed a law to allow people without any formal teacher training to enter the classroom, so long as they had a bachelor's degree or five years of experience in a relevant field. In other words, those schools that report a fully staffed faculty may have a group of teachers who are far less qualified than they were in past years.
As I explain in a recent article, this shortage is not simply part of the regular ebb and flow of the market. It is of states' own making. During the recession, they over-gouged public education budgets, went to war on teachers themselves, and took money that could have went to traditional public schools and drove it to choice programs. The effect was to scare new and prospective teachers away from the profession. The teacher pipeline was more than cut in half in California. And when states' revenues rebounded following the recession, states refused to undo the damage they had done. Instead, they simply set a new normal, continuing to fund education at levels lower than before the recession. Even today, roughly half of states spend less in real dollar terms on education than they did in 2008. This is to say nothing of the war on teachers that some states are still willing to wage.
So while I bemoan the struggles that individual districts are facing, the real culprit is their state legislatures. And while court have no direct responsibility for education, they have, at least, enabled these legislatures. In prior decades, courts have forcefully intervened to block these types of assaults on public education and insisted on state legislatures adopting rational policies to carry out their constitutional duties regarding education. Over the last decade, however, courts have increasingly looked the other way.
The abstract to Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education offers this summary of trends as they stood in 2016 and teases a few solutions:
Two-thirds of states are funding education at a lower level today than they did in 2008. Some states are a full twenty percent or more below levels of just a few years earlier. The effect on schools has been dramatic. States have only exacerbated the problem by reducing teachers’ rights and benefits. These attacks on teachers, combined with funding decreases, have scared many prospective teachers away from the profession all together. The net result has been an extreme shortage of teachers nationwide. This past fall, large numbers of public schools opened without enough certified teachers to fill classrooms, relying instead on substitutes and interns on a full-time basis. In other instances, schools simply stopped offering certain classes. Decades of social science demonstrate these funding and teaching policies will have serious academic impacts on students. They will likely widen achievement gaps and impose learning deficits that some students will never overcome.
In the face of analogous threats, courts in the past have regularly intervened to protect educational quality and funding. Yet this time around, courts have almost uniformly refused to intervene and rarely offered a compelling reasoning for the refusal. This judicial passivism regarding education marks a troubling new trend. It suggests that the constitutional right to education may exist only in theory and that students are losing the constitutional leverage to demand that states repair the damage that they have caused. Likewise, nothing will prevent states from pursuing similar retractions again in the future.
This Article offers a doctrinal approach to reverse both educational retractions and judicial disengagement. Current trends, however, cannot be reversed without acknowledging the potential limits of judicial intervention during crisis. In particular, a serious crisis incites fear and political expediency, which can prompt legislatures to ignore court orders that purport to remedy the crisis. This disregard is inherently problematic for both education rights and the basic legitimacy of judicial authority, regardless of the subject matter. In this respect, the solution to the devaluation of education rights is also a step toward strengthening judicial authority. In education, courts must begin to incorporate prospective doctrines and rules that reduce the likelihood of judicial standoffs with legislatures. Simply put, future court orders should seek to avert crises by addressing them before they occur. This Article proposes three specific steps courts can take to achieve this end.
On one level, this may all sound like lofty theorizing, but the point of the paper is far more practical: the immediate crises that schools face are not ones that courts or states can easily fix after-the-fact. Recessions will come no matter what. The risk of shortages will always be present. The solution, then, is to plan ahead.
Schools deliver education not as single year chunks, but as collective thirteen year experiences. States must have processes and plans in place that anticipate problems, allowing them to weather recessions. This is no easy thing to do. The politics are predisposed against it. But I argue in the article that by consistently holding states accountable and adopting a few common sense standards, courts can begin to prompt states toward better decision making. States might protect their teacher pipelines through thick and thin so that they might not need to issue emergency waivers and establish alternative teacher programs every decade or so.
Wednesday, August 23, 2017
Court Finds That Arizona's Decision to Bar Mexican-American Studies Was Motivated by Intentional Discrimination
Yesterday, a federal district court held that Arizona's decision to ban Mexican-American studies and the local district's enforcement of that ban were motivated by intentional discrimination. The court also held that restricting students access to that information violated the First Amendment.
As a matter of substance, the case marks a major victory for multicultural studies and places clear limits on partisan and other illegitimate attacks on them. As a matter of Fourteenth Amendment and First Amendment doctrine and analysis, the case is also noteworthy for professors. The opinion is a textbook example of basic constitutional analysis. Anyone looking to bone up on how to apply intentional discrimination and free speech doctrine should give it a read. Assuming the case stands on appeal, it will make a nice addition to education law casebooks or, in a modified form, a handout for class exercise.
First, the court recites the basic Arlington Heights standard for proving intentional discrimination in violation of the Fourteenth Amendment. The case is now in its 40th anniversary and somehow stood the test of time (notwithstanding how hard to makes it for plaintiffs to win discrimination cases). Under Arlington Heights, plaintiffs must show the defendant acted with a "discriminatory purpose." They can show this through circumstantial evidence, including: 1) the discriminatory impact of the decision; "2) the historical background of the decision; 3) the sequence of events leading up to the challenged action; 4) the defendant's departures from normal procedures or substantive conclusions; and 5) the relevant legislative or administrative history."
As on a law exam, the task here is to avoid looking just for smoking guns and instead walk through each factor in a "sensitive inquiry." The details can add up. That is exactly what the district court did, by the end of its opinion, it had amassed so much circumstantial evidence that the case would seem to stand even if the court botched a few facts. While the court pointed to direct evidence of racial animus in the case, it spent most of its time examining the more subtle details. It pointed out that the history of the program was to counteract the harmful effects of past segregation. It identified two procedural irregularities in how the Arizona statute was passed: a) the statute was targeted at a particular district rather than a statewide issue and b) other measures could have been used to deal with the purported problem with the program.
Next, the court examined the legislative history, inferring illegitimate motivation by many of the statute's proponents. Of particular interest was the court's willingness to look at "code words"--words that on their face might sound neutral, but in context could be used to convey racial animus. For instance, "Raza," "un-American," "radical," "communist," and "Aztlan" were all derogatory terms aimed at Mexican Americans during the debate over the program. These terms were not just attempts to win the debate, but were demeaning and racially charged. A less careful court could have dismissed their important. The court revealed, for instance, that the state superintendent had used "Raza" as a substitute for Mexican American, stating the program was "Raza studies for the Raza kids."
With these motivations laid bare, the First Amendment analysis was easy. The court recognized that the state and its schools have the authority to control the curriculum, but there is a major exception: when the control is exercised for partisan or illicit reasons rather than pedagogical concerns. As the Supreme Court held in Island Trees School District v. Pico, partisan motivations render an otherwise permissible curricular decision unconstitutional. Applying that standard, the trial court found that:
The stated policy of A.R.S. § 15-112 is to reduce racism in schools, see A.R.S. § 15-111, which is a legitimate pedagogical objective. The theory of plaintiffs’ First Amendment claim is that reducing racism is only a pretextual objective, and that the statute was in fact enacted and enforced for narrowly political, partisan, and racist reasons.
The Court concludes that plaintiffs have proven their First Amendment claim because both enactment and enforcement were motivated by racial animus.
Get the full opinion here: Download 468 Order and Opinion
Tuesday, August 22, 2017
In 2003, Justice Antonin Scalia predicted that the Supreme Court’s sanctioning of race-conscious affirmative action in higher education would spark future litigation for years to come. And right he was. From defeated claims of discrimination against the University of Texas at Austin to an ongoing lawsuit against Harvard, colleges continue to come under attack for considering race as a factor in admissions decisions.
The recent report of the Department of Justice’s possible investigation of “intentional race-based discrimination in college and university admissions” demonstrates that the assaults aren’t likely to end anytime soon.
As a professor of law and scholar dedicated to ensuring equal educational opportunities for students of color, I believe now is an important time to earnestly consider other methods for diversifying student bodies. Race-neutral alternatives could effectively consider such factors as socioeconomic status and educational background, while supplementing more traditional affirmative action.
‘Race-based’ vs. ‘race-conscious’
When thinking about affirmative action, it’s important to first define (and debunk) a few key terms, starting with “race-based” and “race-conscious” affirmative action.
“Race-based affirmative action” is a misnomer often used to describe some college admissions policies. “Race-based” implies that an admissions decision is made solely because of or based upon an applicant’s race or ethnicity, which could not be farther from the truth. A university’s decision to admit, deny or waitlist an applicant is based upon myriad criteria, ranging from standardized test scores to state of residency. Race is just one of many admissions factors a university may consider.
This approach is more appropriately termed “race-conscious.”
Schools that employ race-conscious admissions policies do so in order to achieve the educational, social and democratic benefits of a diverse student body.
As the Supreme Court held in Gratz v. Bollinger, race is not and cannot be the determining factor under a constitutional race-conscious plan. Therefore, when people claim that an African-American or Hispanic student was admitted because of race, they’re often not only inaccurate but also dismissive of the student’s other numerous attributes that played a role in the university’s decision.
Opponents of race-conscious affirmative action often assert that such policies are racist or disproportionately benefit privileged minority students from middle- and upper-class backgrounds.
For its part, the Supreme Court is also skeptical of using racial classifications in governmental decision-making. As a result, it has held that institutions of higher education must afford serious consideration to “workable race-neutral alternatives” before implementing a race-conscious policy.
Importantly, the court’s use of the term “race-neutral” does not mean “race-blind.” That is, universities are permitted to think about how alternative admissions criteria could help them achieve their diversity goals. Race-neutral criteria could include socioeconomic background, high school or undergraduate institution, or class rank. In other words, these are factors that may contribute to a school’s racial diversity, but applicants themselves are not considered based on race.
In some cases, it’s proven difficult for race-neutral admissions policies to achieve the same levels of racial diversity as those achieved through direct consideration of race. However, such measures have been useful in helping to diversify student bodies when used in conjunction with or in lieu of race-conscious affirmative action.
The viability of race-neutral alternatives
When coupled with the stark racial disparities that continue to plague some professions, the uncertain future of race-conscious affirmative action calls for a renewed focus on alternatives that look beyond race alone.
Law schools play a unique role in training our country’s next generation of leaders. It is, in fact, vital to the future of our democracy that we continue to provide students from historically underrepresented racial groups with access to legal education. And yet, the legal profession was recently determined to be “one of the least racially diverse professions in the nation.”
To help law schools improve their diversity, we examined the relationship between race and race-neutral identity factors in law school admissions. The project, which was funded in part by a grant from AccessLex Institute, surveyed over a thousand first-year law students at schools throughout the country and asked about various aspects of their identity, such as socioeconomic status and educational background.
Our findings indicated that African-American and Hispanic students were significantly more likely than both white and Asian/Pacific Islander students to have qualified for free or reduced lunch programs in elementary or secondary school, had a parent or guardian who received public assistance when the student was a dependent minor, and received a Pell Grant during their undergraduate studies – all of which are race-neutral factors that schools could consider in admissions decisions.
How admissions could change
Based on the sample of participants in our study, it’s clear that privilege did not catapult all students of color to law school. Many of them had to overcome the structural inequalities of poverty, race and public education to embark on a legal career. Expanding opportunities for these and other minority students will benefit not only legal education and the legal profession, but also society more broadly.
Race-neutral admissions policies could help identify and create opportunities for these students.
To be clear, I do not advocate for the wholesale substitution of traditional race-conscious admissions measures with the factors we studied. Race-conscious policies continue to be the most effective means by which to create diverse student bodies.
However, we encourage law schools and other institutions of higher education to utilize these and other race-neutral admissions factors as a means of complying with the Supreme Court’s affirmative action mandates and testing the viability of policies that take such factors into account.
Doing so will help ensure that traditionally underrepresented students of color will continue to have access to colleges and universities that serve as gateways to career, financial and life opportunities.
Wednesday, August 16, 2017
How a Southern City Achieved Our Nation's Greatest School Integration Success and Then Struggled to Save It
Pamela Grundy’s new book, Color and Character: West Charlotte High and the American Struggle over Educational Equality, offers a detailed and personal look into our nation’s most significant integration triumph and its subsequent disintegration. “From the mid-1970s through the early 1990s, Charlotte-Mecklenburg Schools was the most desegregated major school system in the nation.” The story of that triumph is inspiring and a testament to what is possible when communities and public institutions come together in pursuit of an important mission. She tells this story beautifully. One is left wondering why places like Atlanta, Dallas, Cleveland, and so many others did not share similar success.
At least one important factor is that Charlotte had Julius Chambers—a hometown civil rights advocate who would go onto to be a national leader for decades. But Julius was just Julius back then. He took bold stances and demands in the courts. Julius did not demand that Charlotte just tinker with dismantling segregation; he demanded that it immediately create what one might call perfect integration. His vision was so bold that it shocked both whites and blacks. Ironically, the district court bought it.
But Julius was just one attorney. Real world success depended on the people who would teach and learn in Charlotte’s schools. For that story, Pamela Grundy turns to West Charlotte High—the “undisputed flagship” of Charlotte’s success. Much of that story comes through the first-hand accounts and quotes of students and teachers. The opportunity to hear them speak, rather than a scholar characterize them, grounds the book. In today’s world of distant school statistics and profiles, this stylistic choice is refreshing. Students and teachers tell the reader what West Charlotte High was really about, how it made them feel, and what it made possible for their community, their school, and students of all races. Those students built relationships and communities that gave them meaning.
Charlotte was such a deep-felt success that when President Reagan came to town and criticized forced busing, the city rebuked him. The Charlotte Observer wrote “You Were Wrong, Mr. President” and the yearbook students at West Charlotte wrote: “They said it wouldn’t work. They said it isn’t working. Busing opponents, however, need only take a quick survey of West Charlotte High Schools to see that busing has worked.” They emphasized that student came from across the city to participate in a common project. They “didn’t just make the best of an ‘experiment’ but took advantage of the situation . . . academically, athletically and socially.”
One wishes the story could end there or simply march on as inevitable history. Instead, the second half of the book is a story of loss—one that reveals just how fragile integration and equality can be. In the late 1990s and early 2000s, the desegregation plan would be lifted in Charlotte. Its schools would resegregate. They would become separate and unequal. And officials would embark on a number of deals with the devil—deals that would try to make educational opportunity equal in the context of racial and socio-economic segregation. In effect, they would concede to segregation. West Charlotte would fall from its position of “flagship” and struggle to retain teachers, students, and academic achievement.
The second half of the story reveals the interesting dynamics of local, regional, and national change, which quite frankly, I haven’t spent too much time considering as of late. Everything today seems national today: No Child Left Behind, Race to the Top, the Every Student Succeeds Act and school choice.
The early years of desegregation demonstrated the ability of one community to lead the charge of change when very little else would have suggested it was possible. In other words, politics and change are local. Yet, the second half of the book shows national politics overwhelming Charlotte. Charlotte made plenty of mistakes and maybe had lost its integration spunk, but so much of Charlotte’s loss was not entirely of its own doing. Charlotte, like every other community, was besieged by the negative social and cultural effects of national phenomena like No Child Left Behind, individualism, and school choice. And the Great Recession hit Charlotte as hard as any city. These outside stimuli made resegregation and inequality all the more likely.
Charlotte could, of course, have resisted. Louisville, Kentucky, did. But Louisville, Kentucky, had grown far more conscious about integration and had a different local context. The one lesson Grundy seems to want us to take away is that equality is a continual struggle, never fully won or lost, at least not yet. And she still offers us hope for Charlotte, but I will leave that to your own reading of the book.
Monday, August 14, 2017
Local news reports that a Missouri high school censored the yearbook comments of two openly gay students. The yearbook allows seniors to write a quote or statement under their picture, which becomes part of the published yearbook. One student wrote, “Of course I dress well. I didn’t spend all that time in the closet for nothing.” The other wrote, “If ‘Harry Potter taught us anything, it’s that no one should have to live in the closet.”
Without telling the boys, the school redacted those statements from the yearbook. After being called out, the principal issued this explanation:
District administrators were made aware of concerns regarding the removal of senior quotes from the school yearbook. Each year, graduating seniors are provided an opportunity to pick a favorite quote to be placed in the yearbook. In an effort to protect our students, quotes that could potentially offend another student or groups of students are not published. It is the school’s practice to err on the side of caution. Doing so in this case had the unintentional consequence of offending the very students the practice was designed to protect. We sincerely apologize to those students. All KSD staff understand the importance of inclusion and acceptance especially in an educational setting. We work diligently to help every student feel safe, supported, and included. District staff participate in ongoing training around issues of diversity and support student organizations that do the same. That being said, we acknowledge our mistake and will use it as a learning opportunity to improve in the future.
Two things strike me as off in this statement. First, I see nothing offensive about what the students said. It may be that some students at the school object to homosexuality, but that does not make the students' statements offensive in an of themselves. As one of the gay students suggested, this has little to do with offensive speech. Rather, the district “mak[es] me feel like you’re ashamed of having a gay student.” In other words, it is hard to imagine a legitimate reason for striking these statements in the first place. Who exactly made the decision and why?
Second, what exactly is the district admitting to be a "mistake" and "learning opportunity"? Is the mistake not letting the students know their statements would be redacted or is it the redaction itself? If it is the former, the district is missing the point. If it is the latter, it seems the district can take corrective action now. It can hand out stickers, inserts, or something to be placed in the yearbooks to correct the error. Since they don't suggest that correction, I wonder if they don't see the real mistake. If so, there is still a problem.
I suspect the district misread its cheat sheet on Supreme Court law. The Court decided a school newspaper case, Hazelwood v. Kuhlmeier, in 1988. In it, the Court held that the district could exercise editorial control over the school newspaper, reasoning that the newspaper was part of the school curriculum and represents school-sponsored speech. Thus, the school could exercise style and content control so long as its actions were related to "legitimate pedagogical concerns."
The Missouri school might think that the case fits because both newspapers and yearbooks are both school publications, but the school's concern with these boys' statements doesn't seem to have anything to do with pedagogical concerns of the sort recognized in Hazelwood. There, fact checking, balanced statements, mature subjects, confidentiality, and the like were all at play. Also, this section of the yearbook seems far more like an open forum than speech that might be construed as the school's. The school refers to "offensiveness," but that doesn't sound like pedagogy. Offensiveness falls under the Court's decision in Bethel v. Fraser, but there the speech was deemed to be lewd, vulgar, and plainly offensive. Applying this standard to the boys' yearbook statements is even more problematic. Even if I am wrong and they are offensive under some rationale, there is no way they are "plainly offensive."
Getting the law right is no easy thing for schools, so I don't mean to beat them up too much. But the difficulty of getting it right cannot be an excuse for a school to do whatever it wants and make it rationales and excuses after the fact.
Wednesday, August 9, 2017
Federal Court Finds Texas Teacher Evaluation System Is a "House of Cards," Issuing Ruling That Helps It Fall
The federal district court in Houston Federation of Teachers v. Houston Independent School District handed the “war on teachers” a huge loss this summer, acknowledging the major flaws in the district’s teacher evaluation system. Similar to many other states, Texas operates a Value Added Teacher Assessment system. Under Houston’s implementation policy:
student growth will whenever possible be calculated by a value-added statistical model called the Educational Value–Added Assessment System (EVAAS), developed by private software company SAS and licensed for use by [the district]. The EVAAS system measures teacher effectiveness by attempting to track the teacher's impact on student test scores over time. The details are more complicated, but in general a teacher's EVAAS score is based on comparing the average test score growth of students taught by the teacher compared to the statewide average for students in that grade or course. The raw EVAAS score is generated by SAS's proprietary software and is then converted to a test statistic referred to as the “Teacher Gain Index” (TGI), based on the ratio of the EVAAS score to its standard error. The TGI is sorted into one of five “value-added” effectiveness ratings.
The district then uses those ratings to make employment decisions for teachers, including termination.
Some may recall that lawsuit grabbing headlines when it was first filed. Of particular note was that the district had recognized one of its teachers as award-winning just one year prior to ranking him as low-performing based on his student growth percentile model.
As I detail in The Constitutional Challenge to Teacher Tenure, 104 Cal. L. Rev. 75 (2016), these value added systems, along with their close cousins (student growth percentile models), are riddled with several fundamental flaws: tests that do not match the curriculum, failing to account for demographic variables, instability in ratings across years, arbitrary cut-off scores in the effectiveness ratings, and conflating correlation with causation.
All of these substantive problems in the systems translate into serious constitutional concerns, most notably procedural due process. The constitution entitles teachers to notice and an opportunity to respond when their jobs are placed in jeopardy. Yet, these systems do not provide any notice of a particular problem with a teacher’s instruction and, thus, they are in no position to know who to respond in terms of improving their teaching or refuting the statistical evaluation. Classic examples of due process violations.
One of the biggest jokes was in Florida, where some teachers are rated on the test scores students receive in other classes. To be crystal clear, their evaluation score is based on how students perform in someone else’s class.
Reluctant to stand in the way of reforms sweeping the nation and mandated by the federal government, the Eleventh Circuit Court of Appeals was willing to paper over the problems and reason that Florida’s attempt to improve teaching overall was sufficient to justify the program. (I debunk the outcome in that case here.)
The federal district court in Texas made no such excuses for the state's teacher evaluation system, concluding that “cost considerations trump accuracy in teacher evaluation.” In other words, the district new the system was flawed, but did not want to invest the resources to improve it. As a result, the entire state system was a “house-of-cards.”
[T]he wrong score of a single teacher could alter the scores of every other teacher in the district. This interconnectivity means that the accuracy of one score hinges upon the accuracy of all. Thus, without access to data supporting all teacher scores, any teacher facing discharge for a low value-added score will necessarily be unable to verify that her own score is error-free.
. . .
The EVAAS score might be erroneously calculated for any number of reasons, ranging from data-entry mistakes to glitches in the computer code itself. Algorithms are human creations, and subject to error like any other human endeavor. HISD has acknowledged that mistakes can occur in calculating a teacher's EVAAS score; moreover, even when a mistake is found in a particular teacher's score, it will not be promptly corrected. As HISD candidly explained in response to a frequently asked question, “Why can't my value-added analysis be recalculated?”
Once completed, any re-analysis can only occur at the system level. What this means is that if we change information for one teacher, we would have to re-run the analysis for the entire district, which has two effects: one, this would be very costly for the district, as the analysis itself would have to be paid for again; and two, this re-analysis has the potential to change all other teachers' reports.
For these reasons, the court denied the district's motion for summary judgment.
Monday, August 7, 2017
States' New Plans for Complying with the Every Student Succeeds Act Confirms Just How Little the Law Expects of States
Last fall, in Abandoning the Federal Role in Education, I wrote that the Every Student Succeeds Act "moves education in a direction that was unthinkable just a few short years ago: no definite equity provisions, no demands for specific student achievement, and no enforcement mechanism to prompt states to consistently pursue equity or achievement. The ESSA reverses the federal role in education and returns nearly full discretion to the states." As a result, I predicted the Act would lead to vague state plans, obfuscation, widening inequality, and downright confusion.
Thus far, most of these predictions have come true. Earlier this year, Secretary DeVos, expecting that Congress would repeal the Obama's administrations ESSA regulations, changed the deadline for states to submit their plans and suggested they would have flexibility in their plans. The problem is that states actually need federal leadership. As of today, less than a third of states have their ESSA compliance plans in. And those that have their plans in have done little to dispel my concerns. As a new report by Bellwether Education Partners and the Collaborative for Student Success reveals, the sixteen state plans submitted thus far do not ensure that all students' performance is counted in state accountability plans.
While there were promising elements, our peer reviewers found that most state plans failed to provide significant details about how their systems would work in practice. For example:
• How will schools be held accountable for the performance of all subgroups of students?
• How will schools be identified for improvement?
• What steps will schools identified for improvement need to take, and how will they demonstrate they’ve made sufficient progress to exit improvement status?
A new NPR story points out that this "should raise some red flags concerning kids with disabilities, English language learners and those from low-income families." States have thrown so many measures of school quality into their metrics that the public is unlikely to know what school quality actually means or what schools are required to do to address it.
In the end, these plans reveal the central flaw in the ESSA: its success rests on the extent to which states are willing to engage in good faith efforts to provide equal and adequate opportunities. As NPR writes, parents must simply trust their states. Unfortunately, recent history reveals there is almost no reason to place this faith in states. They have slashed public education budgets, manipulated test scores, and watched school segregation increase.
This is not to say that federal reform has been well-crafted. It has not. But the solution is better federal policy, not giving up.
Read a summary of the ESSA, its flaws, and proposed solutions here.
Wednesday, August 2, 2017
Nora Gordon and Eloise Pasachoff penned a new essay in Edweek. They implore the public to go back to the basics and engage the notice and comment process that dictates the development of federal policy. For all the objectionable things Secretary DeVos has done or promoted since taking the job, the public push back has primarily been in newspapers. While newspapers provide a means for political accountability, the administration is completely free to ignore them. What the administration must, however, address are the comments that individuals and groups make as part of the formal notice and comment period surrounding changes in federal regulations and guidance.
Gordon and Pasachoff remind us that in February, "President Donald Trump called on federal agencies to review their regulations and identify which to cut." DeVos is now digging into that work and has "issued a notice in the Federal Register asking the public to identify 'unduly costly or unnecessarily burdensome' regulations and guidance documents by submitting comments to the Education Department by Aug. 21." This process, however, can be used to do more than target those policies that need to be eliminated, it can be used to focus on things that must be kept (because others will certainly be calling for elimination).
Not only do the comments that the public makes require some response (if if only internal to the Department), they require a "cost-benefit analysis to make sure that rules are for the common good."
Gordon and Pasachoff offer these directions on engaging the process:
The more specific you can make your comments, the better. You can find the Education Department’s existing regulations at Title 34 of the electronic version of the Code of Federal Regulations, and the significant guidance documents are also available online. Explain what you like, referring to specific language. Offer language on desired changes, citing provisions by number. Alternative policy solutions are welcome. You can submit comments on both regulations and guidance online (at docket number ED-2017-OS-0074-0001) by the strict deadline of Aug. 21.
Read the full essay here.
Tuesday, July 25, 2017
Scholarship: Re-Conceptualizing the Response to Campus Sexual Violence in a Closed Institutional System
Campus sexual assault is being discussed in the mainstream media recently following Education Secretary Betsy DeVos's statement that the ED's current guidelines to campuses are not adequately protecting students accused of sexual assault and statements by the acting assistant secretary for civil rights stating that Title IX rules result in false accusations. In their essay, Toward a Civilized System of Justice: Re-Conceptualizing the Response to Sexual Violence in Higher Education, authors Hannah Brenner (California Western) and Kathleen Darcy (Michigan), raise a different aspect of the problem: that the closed institutional nature of higher education settings add to the difficulty of holding people accountable for campus sexual assault. The authors view campuses through the characteristics of prison and the military, and conclude that colleges' quasi-closed system may hinder "crafting better remedies to both prevent and reform the response to sexual violence." The essay is Toward a Civilized System of Justice: Re-Conceptualizing the Response to Sexual Violence in Higher Education, 102 Cornell L. Rev. Online 127 (2017), and is available here.
Wednesday, July 19, 2017
The Association of American Law Schools' Education Law Section has announced a call for papers for its 2018 Annual Meeting session, “Law, Politics, and the Public University,” co-sponsored by the Sections on Constitutional Law and State and Local Government Law. The selected paper will be presented during AALS at a panel addressing topics such as the First Amendment, sanctuary campuses, student debt and higher education financing, for-profit colleges, admissions policies, and the demographics of higher education.
The selected paper will be chosen by the Education Law Section executive committee, and presented during AALS on Thursday, January 4, 2018, from 1:30 to 3:15 pm. The paper selected may have the option of publishing with the Fordham Urban Law Journal, although publication in that journal is not a requirement of participation. Authors interested in this opportunity should so note on their submission. Submissions should be emailed to Professor Eloise Pasachoff at email@example.com by Friday, August 25, 2017.
Monday, July 17, 2017
In my forthcoming article, The Constitutional Compromise to Guarantee Education,
Stanford Law Review, I argue that, contrary to popular belief, our federal constitution does protect a right to education. I base the argument on congressional debates, state constitutional conventions, and the new state constitutional amendments that states passed in the conjunction with ratifying the Fourteenth Amendment to the U.S. Constitution.
On one hand, the right lays in plain sight. On the other, it has been overlooked due to the complexity of the ratification process and subsequent historical events that sought to overturn the substance and effect of the Fourteenth Amendment.
The abstract offers this summary:
Although the Supreme Court refused to recognize education as a fundamental right in San Antonio v. Rodriguez, the Court in several other cases has emphasized the possibility that the constitution might afford some protection for education. The Court, however, has never explained why the constitution should protect education.
New litigation is attempting to capitalize on the Court's sympathy toward education, but convincing the courts will still require a compelling affirmative constitutional theory. This Article offers that theory, demonstrating that the original intent of the Fourteenth Amendment was to guarantee education as a right of state citizenship. This simple concept has been obscured by the unusually complex ratification of the Amendment. But this article, relying on primary sources, reveals that providing public education was a condition of southern states' readmission to Union and was incorporated into the meaning of the Fourteenth Amendment. As a right of citizenship, this Article also theorizes that the Fourteenth Amendment prohibits states from partisan and other illegitimate manipulations of educational opportunity--some of which have continued to this day.
Read the full draft here.
Friday, July 14, 2017
There is a certain irony in the choice of tactics in last week’s lawsuits filed in response to the Education Department’s effort to back away from Obama-era rules that created a process for indebted students to get out of their loan repayment obligations if the institution they attended made false or misleading statements. The 19 states that filed a federal lawsuit in Washington, D.C., are making the same kind of argument that for-profit higher education providers used in their lawsuit against prior efforts to regulate in this area.
In their complaint, the states, which include Massachusetts, California, and New York, charge that the Department’s effort to postpone implementation of the rules violates the Administrative Procedures Act, or APA.
While the Department justified the decision to delay implementation of the rules by citing pending litigation filed by the California Association of Private Postsecondary Schools, the states argued in their complaint that not every rule subject to delay had been targeted in the trade group’s lawsuit.
According to the states, the Department’s delay of the rule must itself be subject to notice and comment, like any new rule, and the Department’s failure to do so constitutes a violation of the APA. Through litigation, the states hope to have a judge order implementation of the rules.
To appreciate the irony, you have to let your mind wander way back to 2011. That’s when the Association of Private Sector Colleges and Universities sued the Education Department to block implementation of the “gainful employment” rules, which among other things would have imposed penalties on institutions if the ratio of their students’ debt to income exceeded a specified level. The trade group’s lawsuit succeeded in delaying full implementation of the rules; if you want the gory details, the trial court decision was Association of Private Colleges and Universities v. Duncan, 870 F.Sup. 2d 133 (2012).
The Department re-developed the rules, which the trade group immediately sued to block. The new version of the gainful employment rules survived a set of legal challenges by the trade group, culminating in an opinion by the D.C. Circuit Court of Appeals (Association of Private Sector Colleges and Universities v. Duncan, 640 Fed. Appx. 5 (2016)).
The irony arises because in both sets of challenges to those rules, what provision of what law did trade group rely on? You guessed it: The same provision of the Administrative Procedures Act.
The trade group argued that each version of the gainful employment rules was “arbitrary and capricious,” the magic phrase from the Act, which at 5 U.S.C. §706(2) requires a reviewing court to “hold unlawful and set aside agency action, findings, and conclusions found to be… (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
The states contend that the delaying of the rules is arbitrary and capricious and otherwise flawed. So to protect a more recent regulatory effort, the states are using the same tactic that was used to attack a prior one.
Whether a new sheriff in town can impose new rules will thus depend on whether the courts find that the new sheriff played by the rules.
Tuesday, July 11, 2017
Scholarship: A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty
Nancy Cantalupo, and William Kidder have posted their article, A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty on SSRN. (Utah Law Review, forthcoming). From the Abstract:
This article represents the most comprehensive effort to inventory and analyze actual faculty sexual harassment cases. This review includes nearly three hundred cases obtained from: (1) media reports; (2) federal civil rights investigations by the U.S. Departments of Education and Justice; (3) lawsuits by students alleging sexual harassment; and (4) lawsuits by tenure-track faculty fired for sexual harassment. Two key findings emerged from the data. First, contrary to popular assumptions, faculty sexual harassers are not engaged primarily in verbal behavior. Rather, most of the cases reviewed for this study involved faculty alleged to have engaged in unwelcome physical contact ranging from groping to sexual assault to domestic abuse-like behaviors. Second, more than half (53%) of cases involved professors allegedly engaged in serial sexual harassment.