Wednesday, February 19, 2014
The state of Washington is now in danger of losing its No Child Left Behind Waiver. The Department of Education has granted waivers on a one year basis, requiring that states reapply in subsequent years to show progress on the conditions in their previous year's waiver. For Washington, that meant using statewide tests in evaluating teacher's and principal's effectiveness. The Washington state senate just voted down a bill that would have implemented that requirement. The no vote came from the Democrats in the Senate and seven Republicans. Democrats charged that the evaluation metrics are just a means to bash teachers. As a result of the state's legislative timing rules, there appears to be no obvious way to come up with an alternative solution before the Department of Education makes its decision on the waiver.
The Olympian reports that
Losing the waiver would mean school districts throughout the state would have to redirect an estimated $38 to $44 million in federal education funding toward private tutoring efforts, rather than spending the money on district programs for poor and disadvantaged students.
It also would mean nearly every school in the state would be labeled as failing, and school administrators would have to send letters home to parents notifying them of their schools' failing status.
It is possible that the Deparment of Education might still extend the waiver based on compliance in other respects, but to do so would also send a negative message to other states regarding their need to comply.
Tuesday, February 18, 2014
When some years ago, the State of Virginia voted to change its state song, Carry Me Back to Old Virginny, after decades of controversy about the song's romanticized view of slavery (the song, incidently, was written by black composer James Allen Bland in 1878), observers joked that it takes three Virginians to change a light bulb - "one to screw in the new bulb and two others to wax nostalgic about the old bulb and how nice it was." Recent names changes to schools across the deep south remind me of Virginia's vacillation over its (now retired) state song. There are dozens of schools throughout the south named for Robert E. Lee, Jefferson Davis, Nathan Forrest, and other fighters for the Confederacy. Attempts to change those names are being met with some antagonism, despite the fact that many of the objectors do not even send their children to the affected public schools.
Some are taking slow steps to change, such as Nathan B. Forrest High School in Jacksonville, FL. Last December, the Duval County School Board in Jacksonville, FL voted unanimously to rename Nathan B. Forrest High School, saying that it voted for the change because of the polarizing connection with the nation's racial history. Forrest's name is particularly divisive as the Confederate Civil War general was also a slave trader and later a founder and first grand dragon of the Imperial Knights of the Ku Klux Klan. The school board cited the makeup of the school as a contributing factor to change the name, as the high school's racial makeup is 22.9% White non-Hispanic, 61.6% Black non-Hispanic, 8.7% Hispanic, 2.6% Asian, 3.9% Multi Racial. 0.3% Native American.
Erika Wilson's new article, Towards a Theory of Equitable Federated Regionalism in Public Education, is forthcoming in the UCLA Law Review. The article is aimed at addressing the longstanding problem of inequity and segregation across school district lines, which were sanctioned by the Supreme Court in Milliken v. Bradley and San Antonio v. Rodriguez. Wilson says the problems are further exacerbated by the "a strong ideological preference for localism" in state education laws that "do not require or even encourage collaboration between school districts in order to address disparities between neighboring school districts." Thus, she calls for a reconsideration of "the wholesale commitment to localism in public education" and argues that, "in some instances, the dissemination of public education should be made on a regional basis rather than a local basis. [Her article] examines how enacting regionalism — a theoretical framework, which advocates for the installment of regional governance structures — might occur in public education. Borrowing from two specific theories of regionalism, equitable regionalism and federated regionalism, [her article] proposes a framework entitled 'Equitable Federated Regionalism' for disseminating public education on a regional basis."
This new article builds on her prior work, Leveling Localism and Racial Inequality in Education Through the No Child Left Behind Act Public Choice Provision, 44 U. Mich. J. L. Reform 625 (2011). Both works are insightful attempts to push us beyond old ways of thinking. They are fit nicely with both positive and negative developments in a few localities. Consider Omaha, Nebraska's cooperative school district zones, which suggests Wilson's proposals are more than feasible. Or consider the current school transfer provision in Missouri that is wreaking havoc on both accredited and unaccredited school districts. Wilson's proposals might offer a far more orderly means of dealing with the problems there. The same is true of the problems that will follow the rise of parent triggers, school closures, and the like in other localities.
Monday, February 17, 2014
Assessment Across The Curriculum
The Institute for Law Teaching and Learning has announced its one-day conference for law teachers who are interested in learning about effective techniques for assessing student learning. “Assessment Across the Curriculum” will take place on Saturday, April 5, 2014, at the University of Arkansas at Little Rock William H. Bowen School of Law in Little Rock, Arkansas. By the end of the conference, participants will have concrete ideas and assessment practices to take back to their students, colleagues, and institutions.
Conference Content: Sessions will address topics such as
- Formative Assessment in Large Classes
- Classroom Assessment Techniques
- Using Rubrics for Formative and Summative Assessment
- Assessing the Ineffable: Professionalism, Judgment, and Teamwork
- Assessment Techniques for Statutory or Transactional Courses
The Missouri statute allowing students to transfer out of unaccredited school districts is continuing to place huge pressures on the districts and the state. (For more background on the statute, see my earlier posts here and here). The Normandy School District has now suffered enough losses that it is facing "financial collapse." If it does, the state will have to reassign the 3,000 students currently enrolled in the district. There are another 62,000 students in the state attending other unaccredited school districts. Normandy could be just the first of many crises the state and surrounding districts will have to manage.
Recognizing this, the state board of education is debating its options. One proposed option, suggested by a consultant, is to hand control of these unaccredited to districts to nonprofit entities, which would presumably be something akin to a charter school operator. Other options include creating a state-run school district comprised of the "failing districts," allowing the local school boards to continue operating their "failing districts," or pushing the state to amend the transfer statute. The nonprofit and state-run options have already drawn strong objections from some board members. I would suspect that the privitization lobby, however, will soon enough pressure lawmakers in the opposite direction. What makes Missouri's situation so interesting and important is that the concept of this transfer provision across district lines offers some good possibilities, most importantly integration and poverty deconcentration. But when the law operates too harshly, its primary effect is to destabilize the entire education system of the state, which is not good for anyone. That seems to be the case now. Hopefully, the legislature or board can come up with a reasonable response to these self-inflicted wound.
For more local reporting on the story, see here.
Tuesday, February 11, 2014
Charter schools were envisioned as small-scale laboratories to test innovative educational programs and to reach struggling students who could thrive with more individualized attention. Minnesota is now deciding how to deal with those charter programs that are chronically underperforming. The state legislature seems to be doing the sensible thing this week by considering legislation to require an evaluation process for the state’s lowest-performing charter schools. The proposed evaluation system could prevent charter operators with underperforming schools from opening new schools. The current proposal may make it easier to shut down 17 of the state's chronically underperforming charters. (Charters that that have a high number English language learners or special education students would be exempt.) Minnesota Public News Radio reports that the head of a 2013 study by the University of Minnesota’s Institute on Metropolitan Opportunity says that that 25-30% of the state’s 150 charter schools are “just really terrible…considerably worse than the public schools.”
In Indiana, Establishment Clause questions are being renewed this week about private schools that receive public funds doing what public schools cannot: teaching Christian-based intelligent design doctrine and creationism with taxpayer-funded vouchers. Indiana's South Bend Tribune reports that the state's Choice Scholarship Program funds nearly 20,000 students to attend private schools with about $81 million of public voucher funds. Some of those private schools expressly state that they do not teach evolution as part of their curriculum, substituting faith-based texts for reading, history, and science classes. A recent article in Slate shows the growing amount of tax-credit scholarship and voucher programs going to schools that teach creationism as an alternative to evolution. Indiana's Choice Scholarship Program has not been challenged under the First Amendment's Establishment Clause, although the Indiana Supreme Court ruled last year that the Choice Program did not violate the state constitutional probihibition against funding religious institutions because the direct beneficiaries of the program were schoolchildren rather than the schools selected, and the state clause did not exclude religious teaching from public schools. Meredith v. Pence, 984 N.E.2d 1213 (Ind. 2013). Meredith's lawsuit challenged the state's voucher system generally (Indiana now has one of the most expansive voucher systems in the country), but Establishment Clause challenges could be coming.
The Education Law Association is hosting its annual conference on November 11-15, 2014, in San Diego California. The topic of the conference is "The Resegregation of Education in America," in celebration of the 60th anniversary of Brown v. Board of Education. I know the Association is interested in more participation from law faculty and encourages them to submit panel proposals. The call for panel proposals will remain open until March 1, 2014. The proposal process is straightforward: a short biographical sketch for each presenter, a title and brief summary of the presentation (not to exceed 25 words), and a 500-750 word description of the proposed session.
More details on the conference and proposals are available here.
Monday, February 10, 2014
A new report by the Foundation for Educational Choice, Interstate Survey: What Do Voters Say About K-12 Education in Six States?, found that heavy majorities in Alabama, Arkansas, Kansas, Mississippi, New Jersey, and New York favor expanding school choice through charters, vouchers and tax-credits. Respondents did not, however, favor all public school alternatives. They opposed virtual schools by even larger majorities. The Foundation uses these results to support its agenda, but these results don't impress me that much. Instead, the overall survey results suggest knee-jerk reactions, or guesses, rather than thoughtful or personally-held positions on the part of many respondents.
For instance, the survey also assessed respondents' basic knowledge of their state's funding levels, graduation rates, and achievement scores. On these objective measures, a large percentage, and sometimes a majority, were way off. Of course, not knowing the facts is not a bar to voting and, thus, policy advocates and politicians probably don't care. But to me, these responses indicate there was a fair amount of guessing going on. Moreover, the guessing may have been influenced by what the guessers thought the questioners or public preferred on the issues of vouchers, charters, and tax-credits. Consider that strong majorities indicated that they favored expanding charters, but only 8 to 14 percent of respondents indicated they would select a charter for their own child.
The other factor is that most respondents' perception of public schools is overly-deflated. A large percent perceiving public schools to be in worse shape than they are, which helps explain why a majority prefers alternatives in various forms. Regardless, striking to me was the percentage, who, if given the chance, would select a private school. I find this striking because, as discussed in an earlier post, public schools on the whole outperform private schools.
*chart courtesy of Foundation for Educational Choice
Yet, there is serious danger in assuming that the majority of parents who prefer school choice and private schools do so for quality reasons. The survey does an abysmal job of sorting this out. The survey asked what the most important factor in selecting a school was and the answers were: standards/curriculum, structure/discipline, test scores, school/classroom size, extracurriculars, religious or philosophical missions, and location. They did not ask, or respondents did not admit, the relevance of demographics in selecting schools, ie, the school's racial and socioeconomic statistics. Three of these states were formerly segregated by law and another two of the northern states have extremely high levels of de facto segregation, past and present. I would not necessarily expect respondents to admit these factors (although I have seen other studies where they did), but leaving these factors entirely out of a survey about school choice hides a key issue.
Friday, February 7, 2014
I am a little behind the times on this one, but a group of nine students, represented by Ted Olsen, are challenging the constitutionality of California statutes that grant teachers permanent employment status after 18 months of service, that create several procedural hurdles to dismissing ineffective teachers, and that elevate seniority above teaching effectiveness in layoff decisions. Their theory is that, per school finance precedent, education is a fundamental right in California and students are guaranteed equal educational opportunity, but statutes that keep ineffective teachers in place violates that right by subjecting students to subpar educational opportunity.
Given the malleability of the concepts of education as a fundamental right or a constitutional right to adequate education, there are few inequities or impediments that are beyond constitutional challenge. I myself have made arguments leveraging that precedent beyond just money (student assignments, school discipline, and the like). This suit, however, goes a bit further in that it assumes the problem is the teachers rather than a system that is incapable of attracting, retaining, training, or developing effective teachers. Their facts just as easily lend themselves to a claim on behalf of the districts with ineffective teacher against the state, charging that they lack the resources to hire teachers that are already effective or improve the ones who are not yet effective. This lawsuit assumes that these are inherently bad teachers and that there are others waiting in the wing to take their place. I am not sure either assumption is true. With that said, I am generally sympathetic to the notion that schools and the state should be more interventionist in controlling the placement, hiring and retention of teachers. I am just not sure that this lawsuit is the best way to get us there.
Thursday, February 6, 2014
In August 2012, the Fourth Circuit Court of Appeals in Moss v. Spartanburg County School District Seven, 683 F.3d 599, (2012), held that a South Carolina statute that allowed public schools to give public school credit for private religious instruction did not violate the First Amendment’s prohibition of establishment of religion. The court reasoned that
The School District employed a model in which primary responsibility for evaluating released time courses lay with accredited private schools, not the public schools. Thus, under this model, an unaccredited entity, such as Spartanburg Bible School, could offer a released time course and assign grades to participating students for transfer to the public school system if it received a stamp of approval from an accredited private school. In this manner, the released time grades are handled much like the grades of a student who wishes to transfer from an accredited private school into a public school within the School District; the public school accepts the grades without individually assessing the quality or subject matter of the course, trusting the private school accreditation process to ensure adequate academic standards.
This model has enabled the School District to accommodate the desires of parents and students to participate in private religious education in Spartanburg County while avoiding the potential perils inherent in any governmental assessment of the “quality” of religious instruction.
A new article by Samuel R. V. Garland-- Moss v. Spartanburg County: How the Fourth Circuit Got it Wrong and What it Means for the Future, 48 Wake Forest L. Rev. 1075 (Fall 2013)--dissects this case. He argues that the Fourth Circuit effectively collapsed the three separate prongs from Lemon v. Kurtzman into a singular conclusory analysis about the statute's constitutionality. Separate consideration of each Lemon prong, or application of the coercion or endorsement tests from other Supreme Court holdings, would have demonstrated that the statute was unconstitutional.
The Second Circuit Court of Appeals in Gulino v. Board of Educ. of New York City School Dist. of City of New York, 2014 WL 402286 (2014), affirmed the district court's holding that the school board “'can be subject to Title VII liability for its use of'” the Liberal Arts and Sciences Test (“LAST”) and that the LAST violates Title VII's disparate impact provisions because it was not properly validated." The district court had also "denied in part the Board's motion to decertify the previously certified class in light of the Supreme Court's intervening decision in Wal–Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011); and (3) held that the defense to claims of disparate treatment under Title VII recognized in Ricci v. DeStefano, 557 U.S. 557 (2009), does not apply to claims of disparate impact." The Court of Appeals also affirmed those holdings. In short, the lawsuit by African American and Latino teachers, challenging the disparate impact that state testing requirements have on them, will move forward, and they can move forward as a class. This holding is particularly satisfying for plaintiffs' attorneys, in general, given the barriers presented by Wal-mart and Ricci to class action discrimination claims. This plaintiffs' class survived both.
Wednesday, February 5, 2014
The Eleventh Circuit ruled today that members of Alabama’s powerful teacher union cannot pay their dues through automatic payroll deductions, thus affecting the union’s largest funding source. In 2010, the Alabama legislature passed a law prohibiting government employees from having membership dues automatically deducted from their paychecks if the money went "to a membership organization which use[d] any portion of the dues for political activity." The Alabama Education Association (AEA), later joined by the Alabama State Employees Association and the International Association of Fire Fighters, contested the law saying that the term “political activity” was over broad and an infringement on free speech. The 11th Circuit disagreed, finding that the law’s language “prohibits only the use of state mechanisms to support politically active organizations. The Act does not prohibit “ ‘ private forms of payment, i.e., forms of payment not facilitated by the government. ‘ ” The circuit court concluded, “the Act only declines to promote speech, rather than abridging it, and that the Act does not implicate any constitutionally protected conduct[.]” The 11th Circuit also rejected the AEA's argument that Republican lawmakers passed the law to punish the teachers’ union, whose members largely support Democratic candidates. Read the opinion in Alabama Education Association v. Bentley, No. 11-11266 (11th Cir. Feb. 5, 2014), here.
Wendy Parker’s new article, Recognizing Discrimination: Lessons from White Plaintiffs, 65 Fla. L. Rev. 1871 (December 2013), offers a unique perspective on the Court's holding in Parents Involved and other recent race cases. In particular, she frames the cases in such a way that they could be of benefit to civil rights advocates rather than just hindrances. Parker argues that the majority in Parents Involved changed the meaning of discrimination from substantive discrimination, which originated with the Warren Court, to process discrimination. Process discrimination occurs “from the process of different treatment, without proof of any attending substantive harm.” She also emphasizes that Fisher v. Texas was premised on process rather than substantive discrimination.
She theorizes that process discrimination, as an aggressive colorblind principle, can ultimately help plaintiffs of all races in discrimination suits because it allows plaintiffs to more easily show that their race was part of the decision that caused them harm. Prof. Parker illustrates this with a hypothetical:
Consider a manager, working for a state, who fired a Latino worker with one single utterance negative to his Latino heritage. Any attending lawsuit would traditionally ask whether the worker was fired because of ethnicity. That single utterance would do little in demonstrating why the worker was fired. Instead, the issue would be whether the Latino worker deserved to be fired, or whether the plaintiff's ethnicity caused the firing. Parents Involved shifted the focus away from the firing issue to a process question: Did the manager treat the Latino worker differently than a non-Latino worker during the firing process? Would the manager have made the statement to a white worker? If not, then the manager was discriminatory under the reasoning of Parents Involved. Likewise, the question in Fisher is now whether Ms. Fisher was treated differently during the admissions process-not whether she would have been admitted if she were African-American or Latino.
My forthcoming article in a Fisher symposium frames Parents Involved and Fisher as a triumph of form over function, and bears a lot of similarity to Parker's. What she calls "process" I call "form," and what she call "substance" I call "function." In other words, we read the cases the same, but put different labels on them. The current conclusion of my paper, however, takes a different route than Parker. I conclude that the focus on form benefits whites and disadvantages minorities, primarily because the harm that typically falls on minorities is not explicit. Instead, the harms minorities suffer are often the result of the way the system functions. This type of harm escape judicial scrutiny under an analysis heavily weighted toward form.
Parker's article, however, would indicate that form over function is not all bad. Minorities just have to embrace the new paradigm and marshall it to their benefit in the same way opponents of affirmative action have--an extremely important and insightful point that I overlooked in my pessimistic analysis of the cases.
An earlier version of the paper is available here on ssrn.
Tuesday, February 4, 2014
Opening arguments began Monday in a Caliornia case that challenges the state’s teacher tenure laws. Nine California students, in litigation financed by Students Matter, an advocacy organization headed by Silicon Valley entrepreneur David Welch, are asking a state court to declare that California’s teacher tenure and seniority statutes, among others, violate the equal protection provision of the state constitution. The plaintiffs argue that the statutes protect “grossly ineffective teachers who cannot prepare students to compete in the economic marketplace or participate in a democracy.” The statutes have a disproportionately adverse effect upon minority and economically disadvantaged students, the plaintiffs maintain, because those students are at greater risk of being assigned ineffective teachers. That risk compounds the damage of disproportionate school budgets in lower-income school districts. The plaintiffs seek a permanent injunction against laws that protect teachers' jobs and thus lower the quality of education for children in California. Read the 2012 complaint in Vergara v. California here.
For anyone who have not seen it yet, Claire Lundberg has an interesting article in Slate that describes her experience with France's Pre-K system. She explores its 180 history, its pedagogy and effectiveness. While she cites flaws in it, the national commitment to universal Pre-k and its educational importance begs the question of what the big debate is about here in the U.S.
Alan Houston, an African-American middle school principal, alleged he was removed from his position in retaliation for racial complaints made by Houston and his wife. Houston alleged this action violated Equal Protection, the First Amendment, and state tort law. The District Court, in Houston v. Indep. Sch. Dist. No. 89 of Okla. Cnty., 949 F.Supp.2d 1104 (W.D. Okla. 2013), dismissed Houston’s equal protection and state claims, but held that he could amend his equal protection claim. The equal protection claim was not fully fleshed out, but my reading is that the better claim would have been a Title VI or Title VII complaint, in which he alleged retaliation for his complaints regarding discrimination. The Supreme Court in Jackson v. Birmingham explicitly recognized such a claim for complaints of gender discrimination under Title IX and lower courts have extended the holding to Title VI.
The First Amendment claim is particularly interesting. The court takes up the Garcetti and Pickering analysis and combines them into a 5-factor test, focusing heavily on whether the speech was of public concern and made in the plaintiff's official capacity. The district court also applies the Twombly/Iqbal pleading standards. In short, the case is a professor's playground for new, controversial and intersecting Supreme Court precedent. Unfortunately, the district court's opinion is relative short.
Monday, February 3, 2014
I admit to being ignorant of the backstory, but the Taxpayers United of America suit against an Illinois school district for pushing a referendum to raise additional school funds strikes me as absurd. The referedum failed, so it is unclear to me why the plaintiffs would have continued to press the case, except to teach the district a lesson about raising education revenues.
The Taxpayers United of America alleged that “defendant and its members proceeded with the referendum knowing that it was misleading and understated the amount of the property tax increase, and that they engaged in illegal electioneering to promote an affirmative vote on the referendum.” Peraica v. Riverside-Brookefield High Sch. Dist. No. 208, 999 N.E.2d 399, 403 (Ct. App. Ill. 2013).
The trial court dismissed the plaintiff’s complaint, and the court of appeals affirmed. The court of appeals held that the plaintiffs failed to establish a violation of §1983 of the Civil Rights Act because they failed to recognize any violation of their constitutional rights. Instead, ““the crux of Plaintiffs' constitutional claim appears to be that they ‘were forced to struggle against the public funds' that defendant supposedly spent in support of the referendum.” Id. at 406. The court, relying on Kidwell v. City of Union, 462 F.3d 620,626 (6th Cir. 2006) noted that “The natural outcome of government speech is that some constituents will be displeased by the stance their government has taken. Displeasure does not necessarily equal unconstitutional compulsion, however, and in most cases the electoral process—not First Amendment litigation—is the appropriate recourse for such displeasure.”
Friday, January 31, 2014
Maine Supreme Court Issues Monumental Decision in Favor of Transgendered Student's Right to Use Bathroom of Choice
A student in Maine has secured a huge victory for transgendered students. Susan Doe, a transgendered student, who is biologically male, but identifies as female, had been denied access to the girl's bathroom at her middle school. The Maine Supreme Judicial Court has held that she has a right to use the girl's restroom. The decision is based on Maine's Human Rights Act, which provides:
It is unlawful public accommodations discrimination, in violation of this Act . . . [f]or any public accommodation or any person who is the . . . superintendent, agent, or employee of any place of public accommodation to directly or indirectly refuse, discriminate against or in any manner withhold from or deny the full and equal enjoyment to any person, on account of . . . sexual orientation . . . any of the accommodations . . . [or] facilities . . . of public accommodation . . . .
The court, however, was careful to write a decision that was tailored to Susan's specific facts, which included a clearly documented gender identity and a past acceptance by the school of that identity. The Court wrote:
we emphasize that in this case the school had a program carefully developed over several years and supported by an educational plan designed to sensitively address Susan’s gender identity issues. The determination that discrimination is demonstrated in this case rests heavily on Susan’s gender identity and gender dysphoria diagnosis, both of which were acknowledged and accepted by the school. The school, her parents, her counselors, and her friends all accepted that Susan is a girl.
Thus, we do not suggest that any person could demand access to any school facility or program based solely on a self-declaration of gender identity or confusion without the plans developed in cooperation with the school and the accepted and respected diagnosis that are present in this case. Our opinion must not be read to require schools to permit students casual access to any bathroom of their choice. Decisions about how to address students’ legitimate gender identity issues are not to be taken lightly. Where, as here, it has been clearly established that a student’s psychological well-being and educational success depend upon being permitted to use the communal bathroom consistent with her gender identity, denying access to the appropriate bathroom constitutes sexual orientation discrimination in violation of the MHRA.
While carefully crafted, this language seems more directed toward warding off open access to bathrooms for anyone who wants it, rather than limiting the rights of other transgendered students facing problems like Susan's.
Many other districts across the nation have similarly been struggling with how to accomodate transgendered students. This decision should provide a helpful example.
Thursday, January 30, 2014
Robert Marucci, an 18-year-old high school student, in Florida was allegedly suspended for his participation in gay pornography. Marruci states that he started working in the industry to help his mother pay the bills. Apparently, the family has fallen on hard times and his work does not violate any law. Regardless, when other students at his school learned of his work, he indicates he was bullied and threatened. If the school knew of and did not respond to this bullying, it violated Title IX's prohibitions on sexual harassment. See Davis v. Monroe County, 526 U.S. 629 (1999). Marucci's mother says that this is exactly what the school did. Strike one against the school.
What the school did do was suspend Marucci for ten days. His mother says he was "expelled due to his explicit lifestyle career.” The school indicates that it suspended him for "possible threats" he had made. The devil is in the detail, but "possible threats" sounds vague. If it is only "possible" that he has made threats to other students, the school lacks a basis to suspend him. At best, if the threats were extremely serious, the school could have removed him temporarily to investigate (per a narrow exception in Goss v. Lopez). This does not appear to be the school's claim. Sounds like strike two against the school.
If the school, in fact, removed him for his off-campus lifestyle choice, it may have engaged in another Title IX violation, as well as Free Speech. Strike three (and four, I suppose).