Tuesday, June 16, 2015
Recent scholarship posted on ssrn includes papers on the DOJ's demand that Wisconsin intervene in the treatment of special needs students who use vouchers to attend private schools; the Title IX implications of the the O'Bannon and Northwestern college athletics cases; and the school-to-prison pipeline crisis for Montana's Native American students.
Wendy Fritzen (Georgia State), The Limits of Federal Disability Law: State Educational Voucher Programs, Journal of Law & Education (2015)
The U.S. Department of Justice is currently investigating the state of Wisconsin with respect to its administration of the Milwaukee Parental Choice Program (MPCP), which provides low-income students with public money to attend private schools. Faced with complaints of disability discrimination by private schools accepting voucher students, DOJ has ordered Wisconsin to oversee and police these schools to ensure compliance with Title II of the Americans with Disabilities Act, which applies to states and their agencies, and § 504 of the Rehabilitation Act, which applies to recipients of federal funding. Although conditioning its directive on the state's coverage under these statutes, DOJ in an unprecedented move also strongly hinted that participating schools may themselves be subject to Title II by accepting voucher students. If correct, this contradicts existing agency precedent, has significant implications for states administering voucher programs, and may impose burdens on private schools far beyond Wisconsin's borders. This article evaluates the legal authority for DOJ's directives to Wisconsin and explores the broader question of whether Title II and § 504 obligations attach to the actions of private schools participating in voucher programs.
Melina Angelos Healey (Loyola Chicago), Montana's Rural Version of the School-to-Prison Pipeline: School Discipline and Tragedy on American Indian Reservations, 75 Mont. L. Rev. 15 (Winter 2014)
American Indian adolescents in Montana are caught in a school-to prison pipeline. They are plagued with low academic achievement, high dropout, suspension and expulsion rates, and disproportionate contact with the juvenile and criminal justice systems. The tragic situation of these children on remote reservations in the Northeast corner of Montana has received far too little attention. This article presents relevant regional data, heretofore largely unexamined, and provides some personal narratives that demonstrate the shocking educational inequities American Indian children suffer in Montana. It also makes recommendations for addressing the problem.
Erin Buzuvis (Western New England), Athletic Compensation for Women Too? Title IX Implications of Northwestern and O'Bannon, Journal of College and University Law
The NCAA has been relying on Title IX requirements to defend its polices prohibiting compensation for college athletics; it argues that paying athletes in revenue sports, coupled with the commensurate obligation under Title IX to pay female athletes, would be prohibitively expensive. As a response to the NCAA’s argument, the Author seeks to advance two positions: first, that Title IX would, as argued by the NCAA, require payment of female athletes using some measure of equality; and, second, that athletes are being exploited by the present system. Ultimately, the Author reframes the application of Title IX to athlete compensation by proposing two alternative outcomes: either college athletics departments could reform their programs by curtailing the ways in which they have become overly commercialized programs and thus avoid the application of antitrust and labor laws, or they could reform themselves by abandoning their connection to education and the subsidy that comes with it.
Monday, June 15, 2015
The Brown Center on Education Policy at Brookings hosted a panel of experts last week to discuss the potential for reauthorization. They were generally optimistic. Watch the panel here. They would also seem to be prescient. On the same day of the panel, the House indicated it was bringing the Elementary and Secondary Education Act back to the floor. The bill had previously died when warring factions within the Republican Party sought to load the bill down with their own ideology for reform and were told that if they voted for a stripped down bill it would count against their on conservative scorecard rating. A new proposed procedural solution would allow them to save face.
A summary of the Brown panel follows the jump.
Friday, June 12, 2015
Over the past year and a half, significant movement has happened at the state level to help expand rights for transgendered students seeking to use restrooms that conform to their gender, but somehow the issue had evaded the federal courts. Most notable at the state level, Nicole Maines fought and won a battle in the Maine Supreme Court, relying on the Maine Human Rights Act.
In January of this year, in an effort to federalize this issue, the ACLU filed an administrative complaint against Gloucester County Schools in Virginia on behalf of Gavin Grimm with the Office for Civil Rights at the U.S. Department of Education, presumably arguing that his exclusion from the boy's bathroom violated Title IX. OCR complaints, however, are private and little more than the notice of the complaint came to light at the time. Apparently, the complaint was not resolved to Gavin's satisfaction.
This does not mean that OCR was not on his side. The administrative process is heavily weighted on voluntary compliance, which recent news reports would suggest the School Board would have been unwilling to provide. Gavin had previously been allowed to use the boys' bathroom, but when religious and other concerned groups discovered this, they came out in heavy opposition, leading to an official school board vote banning his use of the boy's restroom. As a side note, it appears the public discourse surround this vote was despicable in its personalized and dehumanizing nature.
The case is now finally moving to federal court, where it is sure to receive enormous attention and set important precedent. See here for more.
Thursday, June 11, 2015
In 2013, North Carolina achieved, through legislation, what the plaintiffs in Vergara v. State in California are trying to achieve through litigation: the elimination of tenure and the minimization of due process limitations on terminating teachers. Last year, a North Carolina trial court struck down the legislature's attempt. The court held that the changes violated the state constitution's contracts clause. Given the prevailing pressures in the state and the legal theory upon which plaintiffs had prevailed, whether the decision would hold on appeal was far from clear.
A little over a week ago, however, the Court of Appeals of North Carolina affirmed the trial court, agreeing that the elimination of tenure and certain processes violated the state contracts clause. The contracts clause precedent in the state is not necessarily important in an of itself, at least not outside the state. States vary in how and whether they treat tenure as a vested contractual right. (See pages 17 to 18 of this article for more on that point). What is important nationally is the factual necessity analysis that occurs within contract clause analysis, regardless of the state. Even if tenure or due process creates a vested right, precedent still allows states to take the right away if they can establish an important state interest in doing so and that the particular action the state took was reasonable and necessary to achieve that state interest.
This North Carolina court's analysis on this last point-the reasonableness and necessity of eliminating tenure--is a direct repudiation of the theory of Vergara. The North Carolina court accepts that improving teacher quality and education quality are important interests, but rejects the state's argument that eliminating tenure and process are reasonable or necessary means of achieving that end. The court's analysis is sufficient lucid that it bears an extended quote here:
The American Institutes of Research has released a nine-year study, What Happens When Schools Become Magnet Schools? A Longitudinal Study of Diversity and Achievement (Julian Betts, UC San Diego and Sami Kitmitto, Jesse D. Levin, Hans Bos, and Marian Eaton, AIR). The AIR study found that while there was some evidence that the schools were successful in increasing diversity, there was inconclusive evidence of increased student achievement. The AIR reviewed the performance of 21 elementary schools in 11 school districts from 2002-2011. From the AIR's report, here are the key findings:
- The most concrete evidence of conversion’s effects was a decline in the concentration of minority students in traditional magnet schools. On average, neighborhood schools that converted to magnet schools initially served 84.5 percent minority students, compared to an average of 64.1 percent in their district. After conversion, the percentage of minority students at traditional magnet schools remained virtually unchanged (84.9 percent) while the concentration of minorities in the district as a whole rose to 66.3 percent. Thus, the demographics of the magnet school became more like those of the district—one goal of this type of conversion.
- Achievement in traditional magnet schools was higher after conversion, outpacing district achievement in English language arts (ELA), but not in math. Average ELA achievement in traditional schools went up by an average of 8.1 percentile points, while average achievement in the districts went up by an average of 5.6 percentile points.
- Achievement in destination magnet schools lost ground to their districts over the conversion period. After conversion, ELA achievement in the districts increased by 6.9 percentile points while achievement in the magnet schools changed little, rising just 1.4 percentile points. Average math achievement in the districts rose 8.9 percentile points after conversion while achievement in the magnet schools did not change.
Wednesday, June 10, 2015
The Education Law Center's annual report on school funding fairness is now available. For those unfamiliar with the past reports, they provide a sophisticated analysis of all 50 states that breaks school funding into four distinct metrics: the adequacy of the actual funding level in each state; the extent to which a state fairly distributes the funds it has, regardless of the adequacy of those funds; the effort a state exerts to fund education (a poor state can try hard and still produce inadequate funds); and the extent to which public schools are educating all of the states students and, if not, how those students differ from those in private school.
Tuesday, June 9, 2015
Florida Gov. Rick Scott acquiesced in April to complaints that teachers' evaluations were too heavily weighted to how well their students performed on state standardized tests, signing into law a measure to the reduce the percentage that student scores made up of teachers' evaluations from half to one-third. But one Florida county, Polk County, recently announced that student standardized scores would have no impact on its teachers' evaluations this year. Polk County says that it is bound by a clause in a collective bargaining agreement with a teachers union and therefore it cannot follow state law. The clause prevents the Polk County school district from using student scores as a job-performance factor until both the district and the union, the Polk Education Association, mutually agree on the evaluation system. If the contract provision prevails, similar clauses could impact Florida's teacher evaluation system throughout the state. Read the article about the district's stance here.
Monday, June 8, 2015
This weekend the New York published an opinion piece by Lee Siegel in which he says he was confronted with the choice of "giv[ing] up what had become my vocation (in my case, being a writer) and [taking] a job that I didn't want in order to repay the huge debt I had accumulated in college and graduate school. Or I could take what I had been led to believe was both the morally and legally reprehensible step of defaulting on my loans, which was the only way I could survive without wasting my life in a job that had nothing to do with my particular usefulness to society." He "chose life" and defaulted on his loans. He, of course, then goes on to further support his choice.
Aaron Taylor offers this response:
I recently authored a post lamenting the effects of misinformation on the decision making and outlook of student loan debtors. My premise was that most of the commentary on student loans betokens a fundamental misunderstanding of the student loan system, particularly, the scope and extent of income-based repayment options. This misinformation is especially dangerous because much of it is peddled by individuals who position themselves as experts and publications that are viewed as trustworthy.
Friday, June 5, 2015
For the past five or so years, concerned citizens have been in active litigation with the Pitt County Board of Education. The litigation arises out of a longstanding desegregation order, which seems to have to come an end with the most recent decision in the case. In the late 1960s and early 1970s, a district court had found both the county and city school systems to be segregated and ordered them remedy to their constitutional violations. They were slow to do so. In 1986 the districts merged into one county system, believing this might help in the overall management of student assignments. No court ever declared either district unitary.
Fast forward to 2006 when the district adopted a student assignment plan that explicitly considered race and whose purpose was to racially balance the schools. At this point, the district was still under court order. Thus, not only could it have taken such action, Supreme Court precedent in Green v. New Kent County and Swann v. Mecklenberg would have mandated such action.
A private parent association, however, objected to this desegregation plan and employed a strategy similar to the one that had brought an end to desegregation in Charlotte: they moved to have the district declared unitary and, thus, subject the consideration of race to strict scrutiny.
Flagler County Schools (FL) agreed to change its disciplinary practices after being sued for racial discrimination against African-American students, reports the Daytona Beach News-Journal. The Southern Poverty Law Center filed a complaint against Flagler Co. Schools in 2012 for removing and arresting black students more harshly than white students. The complaint alleged in the 2010-11 school year, black students made up 16% of the Flagler Co.'s school population, but were 31% of the in-school and out-of-school suspensions and 69% of expelled students. The complaint also alleged that black students were retained at a disproportionate rate of 22%. Flagler Co. school officials told the media that it will, subject to the school board's approval, reduce out-of-school suspensions and form a citizens’ committee to monitor discipline practices. The district also reportedly agreed to reserve out-of-school suspensions for situations when there’s a safety concern, and require district approval for suspensions lasting five days or more. Starting in August 2016, the district will require approval for any suspension of three days or more and consider eliminating out-of-school suspensions altogether.
Thursday, June 4, 2015
The Department of Education reportedly plans to fund a $1.6 million study to review the effectiveness of online community education, following a number of smaller studies that have found that some students are less likely to complete or to do well in online courses. Last year, the Public Policy Institute of California's study of online community college courses found that student success rates in online courses are between 11 and 14 percentage points lower than in traditional courses. The PPIC's study was noteworthy as California has the nation's largest postsecondary education system. Some good news in the PPIC study found that students who take at least some online courses were more likely than those who take only traditional courses to earn an associate’s degree or to transfer to a four-year institution. More data is available in a 2013 study at Columbia University, Teachers College, Di Xu & Shanna Smith Jaggars, Examining the Effectiveness of Online Learning Within a Community College System: An Instrumental Variable Approach.
After weeks of disagreements, Democratic Governor Mark Dayton and majority House Republicans in Minnesota came to a tentative deal this week regarding the largest unresolved piece of the state budget – education funding. Despite asking for 550 million, Dayton, in order to avoid a July 1 government shutdown, accepted the Republicans latest offer to add another 525 million to the budget for early childhood and high school education (the Republicans also dropped a controversial teacher tenure policy change). Dayton hopes to call a special session for legislative ratification within the next two weeks, but admits that there are some finer details in their agreement to be worked out before the session will be called. Earlier yesterday, before the deal, the Department of Minnesota Management and Budget mailed out layoff notices to 9,451 workers as a contingency plan if budget issues are not completely resolved by July 1. If there is a partial shutdown, like the 2005 and 2011 shutdowns, a Minnesota court may be asked to declare some state functions critical in order to keep them running.
Wednesday, June 3, 2015
A novel class action suit asks a federal court to require the Compton (CA) Unified School District to recognize and accommodate the effects of multiple traumas on its students. The plaintiffs are students who have suffered complex trauma of violence, abuse, and racism that has negatively impacted their school attendance and success. They allege that the Rehabilitation Act and Americans with Disabilities Act require the district to "accommodate students who are being denied benefits of educational programs solely by reason of experiencing complex trauma." They allege that the Compton school district has high concentrations of trauma-impacted students for whom individualized education plans are insufficient. Instead, the plaintiffs maintain, the district should start schoolwide trauma practices to keep students in school, including early and appropriate interventions to teach resilience; training educators about trauma; avoiding re-traumatizing students through the use of punitive discipline; and ensuring access to consistent mental health support. In a LA Times article, plaintiffs' counsel cited a counseling program started by the Los Angeles school district for trauma-impacted students as an appropriate intervention. The lawsuit is Peter P., et al., v. Compton Unified Sch. Dist., 2015 WL 2393294 (C.D.Cal., filed May 18, 2015).
The Education Law Association is currently accepting posters and proposals for roundtable sessions for its annual conference on November 4-7, 2015 at the Marriott Downtown at Key Center, Cleveland, OH. The deadline is July 15. Details are here. Tip of the hat to Edjurist for the reminder.
Quoted from ED.gov: The Department of Education announced in a press release Monday that the Miccosukee Indian School (MIS), the only school of the Miccosukee Indian Tribe, has received flexibility from the Elementary and Secondary Education Act/No Child Left Behind. The waiver allows the tribe to use a different definition of Adequate Yearly Progress than the State of Florida where it is located. The MIS is funded by the Department of Interior's Bureau of Indian Education and educates approximately 150 K-12 students. Secretary Arne Duncan says that the waiver allows the tribe to define its own academic and culturally-relevant strategies to reach students. Although the graduation rate increased four percent for Indian youth in recent years, the ED noted that the BIE school graduation rate is 53 percent, compared with 83 percent nationwide. The ED's efforts supports an initiative of the White House Council on Native American Affairs to restructure the BIE from a provider of education to an education service-provider to tribes.
Tuesday, June 2, 2015
On May 22nd, the district court in Brewer v. District of Columbia Public Schools, 2015 WL 2438069 (D.C. 2015), dismissed a former music teacher and union member’s case against the District of Columbia Public Schools (“DCPS”). The teacher had retired after learning that his position was being eliminated due to a Reduction in Force (“RIF”) employment action by the DCPS. He then brought suit.
Monday, June 1, 2015
Federal District Court Overturns School Policy Allowing Distribution Of Only Student-Written Literature
The Western District Court of Washington overturned a student's suspension on Friday for preaching and distributing Christian literature, the Pacific Justice Institute reports. Cribbing from the Institute's press release: Plaintiff Michael Leal is a senior at Cascade High School, part of the Everett Public Schools system. Leal violated the school district policy several times by preaching and passing out religious materials about his Christian faith to fellow students during the school day. The district's policy limited passing out such materials to times before or after the school day at school building entrances or with permission from school administrators. The district also required that this literature be written or produced by a student. Leal was disciplined and threatened with expulsion for repeatedly violating the policy. The federal district court had stated earlier in the case that the district's time, place, and manner restrictions on such speech were appropriate but was "troubled" by that part of the policy that prohibited students from passing out materials that were not written by students. According to the Institute's report, the district court decided that part of the policy could not stand. The case is Leal v. Everett Pub. Sch., No. 2:14-CV-01762 TSZ, 2015 WL 728651 (W.D. Wash. 2015).
Friday, May 29, 2015
Wisconsin education superintendent Tony Evers criticized budget proposals that could bring big changes to the state's public school system. Evers told media yesterday that the proposed 2016-17 budget "erodes the basic foundation of Wisconsin's public school system." Evers said that proposed budget will not be enough to counter inflation public school funding in the first year; in the second year, much of a proposed increase will go to expand the state's school voucher program. Moreover, much of the voucher money will subsidize private school costs for families whose children already attend private school, Evers said. Evers criticized another late addition to the education budget that allows each school district to set its own licensing requirements for new teachers. Evers says that proposal is "breathtaking in its stupidity," because it could allow people to teach without a degree or even a high school diploma and bar the state from imposing any other requirements, including criminal history or background checks. Listen to more of Evers' comments here.
Thursday, May 28, 2015
Courtesy of Miranda B. Johnson, Associate Director of Education Law and Policy Institute (Loyola) is an announcement about an Education Law Retrospective at Loyola on June 18:
The Education Law & Policy Institute at Loyola University School of Law is holding an Education Law Retrospective on June 18, 2015 from 11-5:30 p.m. The first part of the program will be a retrospective of the long-standing special education class action case, Corey H. v. Board of Education of the City of Chicago. Now that the litigation has concluded, this case involves a special opportunity to hear perspectives from the judge who heard the case, the monitor who reviewed the parties’ progress in implementing the terms of the settlement, and counsel for the plaintiff class. The second half of the program will be the Second Annual “Education Law: A Year in Review” seminar, which will address important developments in the area of education law during the past year. Gery Chico will share his perspective based on his experience as former Chair of the Illinois State Board of Education and President of the Board of Trustees of Chicago Public Schools. Speakers will also address topics that include Title IX compliance in the higher education and K-12 context; best practices in developing effective bullying policies; and recent developments in special education law and in the 2015 legislative session. CLE credit is available, and a reception will follow the program. For the full program and to register, click here.
Tuesday, May 26, 2015
Last week, the U.S. Supreme Court, in a 5-4 decision, declared a Maryland income tax provision unconstitutional. According to Maryland officials, this ruling leaves the state of Maryland with a predicted annual revenue loss of about $42 million and also a debt of approximately $200 million owed in refunds to certain residents. This decision could significantly impact public education in Maryland because the money received through the tax at the county level currently contributes to funding local school systems.