Friday, July 10, 2015
With Watered Down Analysis, Eleventh Circuit Holds Florida Can Evaluate Teachers Based on Their Students' Scores In Someone Else's Course
Thursday, July 9, 2015
This release comes from the Campaign for Educational Equity at Teachers College, Columbia University:
In 2014, New Yorkers for Students' Educational Rights (NYSER) filed a lawsuit on the behalf of New York State's public school students charging that the state is neglecting its constitutional duty to ensure that every student receives a "sound basic education." In NYSER v. State of New York, plaintiffs argue the state has failed to implement the school-funding reforms that it committed to adopt in response to the Campaign for Fiscal Equity (CFE) court decisions.
To move the case ahead more quickly, earlier last week, NYSER plaintiffs filed a "motion for summary judgment" that asks State Supreme Court Justice Manuel J. Mendez to bypass a lengthy trial and declare, based on the state's indisputable actions and inactions in recent years, that the state has violated the Court of Appeals' CFE orders and has failed to achieve constitutional compliance.
Late yesterday, the U.S. House of Representative passed a Bill to reauthorize the Elementary and Secondary Education Act. This reauthorization has been a long, wild, and bumpy ride. The Act should have been reauthorized seven years ago. Prior to the financial collapse and changes in Congress, many expected it would. After those events, the odds just grew longer and longer. In 2010, the administration made proposals for reauthorization and the Senate and House moved forward on some bills in 2011, but it was clear that an impasse existed and nothing would happen. Reauthorization was simply dead on arrival. The Secretary of Education used administrative action to deal with the mess that widespread violations of the existing Act was creating. At that point, no one even mentioned the word reauthorization and insiders thought it might be the next administration before anything happened.
Then early this year, the unthinkable happened: bipartisanship. Senators Alexander and Murray decided something must be done and went into closed door sessions to develop a plan. The result was a Bill that sailed through committee with a unanimous vote and is now before the full Senate. That prompted the second unthinkable to happen: the House got serious. The House revived its old bill, which the President had promised to veto, and made a few changes that moved it a little further away from extreme positions. It passed by the slimmest of margins: 218-213. Twenty-seven Republicans voted against it and no Democrats for it.
Wednesday, July 8, 2015
Nikole Hannah-Jones at ProPublica published her take on the cert grant in Fisher v. Univ. of Texas at Austin recently in A Colorblind Constitution: What Abigail Fisher's Affirmative Action Case Is Really About, reminding us of a few facts that ought to influence the Supreme Court's next Fisher decision:
1) because UT Austin's policy of admitting the top ten percent of Texas' high school graduates claimed 92% of in-state freshman seats, Fisher faced stiff competition for admission with all other in-state applicants for the remaining eight percent;
2) while some students with lower test scores and grades than Fisher were provisionally admitted, only five of those students were black or Latino; 42 were white;
3) Fisher's lawyers concede, as they must, that Fisher's race was likely not a significant factor in UT denying her admission.
Instead, Hannah-Jones writes, what Fisher's lawyers want is a referendum on whether the equal protection clause "also prohibits the use of race to help them overcome the nation's legacy of racism." Read more at ProPublica here.
The final education budget adopted, in June 2015, by the Nevada Legislature for the 2015-2017 biennium does little to improve school funding overall and reduces most districts' general operating budgets for the 2015-2016 school year, an analysis by Educate Nevada Now! (ENN!) shows.
Under the "Nevada Plan," which is the state's 1967 school funding formula still in effect, the general operating budget represents the amount of state and local funding available to each district to support the basic education program for all students. A key component of the general operating budget is the amount of state aid and local revenue allocated by the Legislature to each district, known as the Basic Support Guarantee (BSG). The BSG accounts for 75-80% of districts' operating budgets.
An analysis of the budget adopted by the Legislature in June shows a significant decrease in per pupil BSG in the largest district in the state, the Clark County School District (CCSD), which serves about 322,000 children, over 70% of the state's entire student population. CCSD expects to receive $5,512 per pupil, $15 less than the 2014-2015 school year. In Washoe County, the state's second largest school district, funding remains nearly flat. And, some rural districts are also bracing for less per pupil funding in the coming school year.
OCR's Dismissal of Asian Americans' Claim of Discrimination Against Harvard Is Much Ado About Nothing
Yesterday, a number of major new outlets, from the Wall Street Journal and the AP to the Bloomberg and US News & World Report, published stories on the fact that the Office for Civil Rights dismissed the complaint that Asian Americans recently filed against Harvard. The complaint alleged that Harvard systematically discriminates against them in the admissions process. The substance of the complaint and the prestige of the university against which it was filed are both significant. See my prior post on the complaint. That OCR dismissed the complaint, however, is not.
After filing the complaint, the plaintiffs had also filed a lawsuit in federal court. The federal court's jurisdiction exceeds and can preempt that of OCR's. Thus, even if OCR had left the complaint open, the final word would have belonged to the federal court. That OCR, which has a rapidly growing case load, would choose to avoid devoting resources to this complex case makes perfect sense. This not a substantive judgement on the merits of the complaint, as some headlines would leave readers to believe, but just good stewardship of federal dollars. Moreover, if there are issues the federal court does not address, the plaintiffs will be free to revive their complaint with OCR.
Monday, July 6, 2015
An article in the Atlantic, drawing on the research of Pamela Cantor, says we can. Cantor frames the problem as one of childhood trauma. She finds that poverty has effects on brain and other development that mirrors that of other types of childhood trauma.
[Poor children] had all experienced loss, violence, neglect, or other adversity. And no matter what traumatic events they had experienced, the results were similar: they showed up distrustful, easily triggered and distractible. I couldn’t make the adversity they faced go away. But I could and did change how they surmounted that adversity.
What I saw in Washington Heights students were the same manifestations of trauma I had seen in my patients. I saw how adversity gets under the skin, into the brains and bodies of children through the mechanisms of stress. And I saw that when lots of kids experience high levels of stress together, it produces a very specific collection of challenges to a school, to a classroom, and to the students themselves.
The solution she says is to develop interventions aimed at the trauma of poverty, rather than chasing the illusive solution to poverty itself. In a separate paper, she proposes
Friday, July 3, 2015
On Tuesday, California Governor Jerry Brown signed legislation eliminating personal and religious belief exemptions from public school vaccinations. The new law makes California's vaccination law one of the most stringent laws in the country. The new law, taking effect January 1, 2016, mandates all children provide proof of vaccination for communicable diseases in order to attend school in California. The only exemptions are for medical reasons and must be approved by the State Department of Health.
California is only the third state to eliminate religious and personal belief exemptions for vaccinations. The legislation comes in the aftermath of a measles outbreak linked to Disneyland in California earlier this year. Supporters of the new law advocate that it will protect those children too young or sick to be vaccinated, while opponents of the law say it unfairly restricts parental choice.
Thursday, July 2, 2015
The Supreme Court granted certiorari Monday to hear Friedrichs v. California Teachers Association, the case about compulsory teachers' union dues that some observers say will threaten union financing. Friedrichs challenges California's “agency shop” laws, which require public employees to pay union dues as a condition of employment, Friedrichs argues that state's agency shop laws violate the First Amendment particularly when the union's positions conflict with individual teachers' on-the-job interests or personal beliefs. Friedrichs' certiorari petition presents two issues:
(1) whether Abood v. Detroit Board of Education (1977) should be overruled and public-sector “agency shop” arrangements (that require teachers to join the union or pay the equivalent of union dues) should be invalidated under the First Amendment; and
(2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
In Abood, the Supreme Court held that nonunion public sectors employees could not be required to fund political or social activities to which they objected, but employees could be required to fund activities that benefitted all employees related to “collective bargaining, contract administration, and grievance adjustment purposes.” Because Abood controlled the outcome of Friedrich's claims, the Ninth Circuit summarily affirmed the district court's ruling against Friedrich.
Wednesday, July 1, 2015
On Monday, the Supreme Court of Colorado in Taxpayers for Public Education v. Douglas County School District struck down a voucher program in Douglas County, finding that the Choice Scholarship Pilot Program violated separation of church and state doctrine under the state's constitution. The ruling reversed the decision in Taxpayers for Public Education v. Douglas County School District, a 2013 Colorado Court of Appeals decision upholding Douglas County’s voucher program.
The voucher program awarded taxpayer money to students who could use that money to pay for private schools, including some religious schools. The court found that, in doing so, the voucher program facilitated students attending religious schools and amounted to aid of religious institutions. This violates the state constitutional provision that prohibits government aid to “any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school ... controlled by any church or sectarian denomination.” The Supreme Court of Colorado remanded the case, directing the lower courts to reinstate an order permanently enjoining the program.
This holding based on state law is, of course, in contrast to the U.S. Supreme Court holding in Zelman v. Simmons-Harris. There the Court held that voucher program in Cleveland, Ohio, did not violate the First Amendment, notwithstanding the fact that the program almost exclusively sent kids to private religious school. Many state constitutions have provision that are more restrictive of the flow of public money to religious institutions.
Tuesday, June 30, 2015
On June 19, Texas enacted a law, S.B. No. 507, calling for video surveillance of special education classrooms. The law applies to all public schools, including open-enrollment charter schools, that receive a request from a parent, trustee, or staff member, and within those schools to all self-contained special education classrooms and classrooms in which a majority of the students in regular attendance are provided special education and assigned to a self-contained class or other special education setting for at least half of the instructional day. The schools have to retain video recordings for six months. The video is not to be regularly or continually monitored, and the video is not to be used for teacher evaluation or any uses other than promotion of student safety. But the otherwise confidential recordings must be released for viewing on request by school district employees or parents of students involved in an incident for which a complaint has been reported to the district. It must also be released to Department of Family and Protective Services personnel conducting investigations, police, human resources staff members, and several other designated categories of individuals.
Supporters of the law cited physical injuries and abuse of students with disabilities, particularly students who are nonverbal or uniquely vulnerable in other ways, and said video monitoring will deter the incidents. Opponents were preoccupied with costs – the new law does not create a state funding stream for the equipment, its installation, and operation. Given the pervasiveness of video monitoring in modern society, privacy concerns do not appear to have been paramount, though the singling out of special education is troubling. A better solution surely would be video monitoring in all classrooms. After all, video cameras are now found in vast numbers of stores, public transit facilities, and other public places, and students without disabilities are vulnerable to abuse and mistreatment.
Video monitoring has appeared in the special education caselaw in recent years. In Phipps v. Clark Cnty. Sch. Dist., No. 2:13:00002-GMN-PAL (D. Nev. Apr. 23, 2014), the court refused to dismiss constitutional claims brought by a nonverbal child with autism who alleged that he was abused in a classroom in which the school district had installed surveillance cameras and the video showed abuse of the child by teachers, but no school personnel witnessing events live or on video intervened. In B.A. v. Missouri, No. 4:09CV1269, 2010 WL 1254655 (E.D. Mo. Mar. 24, 2010), the court denied a motion to dismiss an action brought under the Individuals with Disabilities Education Act in which a student alleged serious physical and verbal abuse and asked as a remedy that the school install audiovisual monitoring of all classrooms and hallways.
Monday, June 29, 2015
The Supreme Court granted certiorari today in Fisher v. Univ. of Texas to revisit race-conscious admissions policies at the University of Texas at Austin. The Supreme Court remanded the Fisher case in 2013 for the Fifth Circuit to conduct a "searching examination" of whether UT's policies were narrowly tailored to serve a compelling government interest. The Chronicle of Higher Education reports that in addition to the Fifth Circuit's upholding UT's policy, the justices may also consider new evidence that then-UT Austin President William C. Powers Jr. intervened on behalf of well-connected applicants (the elephant in the room for racial diversity policies in college admissions). The Chronicle of Higher Education's story is here.
State Court Holds That Pennsylvania Department of Education Must Investigate Curricular Deficiencies in Philadelphia
In September 2013, a group of parents filed a lawsuit in state court against the Pennsylvania Department of Education, alleging the Secretary of Education violated her mandatory regulatory duties by failing to carry out her duty to “receive and investigate allegations of curriculum deficiencies.” 22 Pa. Code § 4.81. Last week, the trial court in Allen v. Dumaresq issued an opinion agreeing in large part.
The lawsuit arises out of parents previous attempts to have the Secretary intervene in Philadelphia's under-resourced schools. Parents had previously filed 825 complaints with the Department regarding the reduction of thousands of staff positions and expenditures in Philadelphia schools. The complaints ranged from overcrowded classrooms, inadequate counselor staffing, numerous reductions in art, foreign languages, and physical education in the curriculum, and unsanitary toilet conditions. Petitioners claim that these conditions impede the delivery of the curriculum and students’ ability to learn it. The lawsuit claims that the Secretary never responded to many of those complaints. Those to which she did respond revealed a failure to carry out her duty. The Secretary simply sent out letters calling the allegations a “local matter” and that their allegations would be forwarded to the District.
The trial court reasoned that complaints regarding facilities and staff were non-curricular and, thus, the Secretary was not bound to investigate them. But allegations of reduced access to art, foreign language courses, and physical education were curricular matters. Thus, the Secretary was obligated to receive, investigate and correct these allegations if necessary.
On June 24, the New York Times published an op-ed piece by Paul Morgan and George Farkas with the headline Is Special Education Racist? in which the authors argue that although children who are African American are 1.4 times more likely to be placed in special education than other races and ethnicities combined, the high number is not caused by racial bias. Instead, they contend, black children are underrepresented in special education classes when compared to white children who have comparable levels of academic achievement, behavior, and economic resources. They believe a federal standard for overrepresentation would be a bad move, one that would cause children who need special education to miss out on valuable services.
Overrepresentation has been a major topic among writers on special education law in recent years. I tried to take on the topic in a paper called The IDEA Eligibility Mess, which appeared in the Buffalo Law Review in 2009. My view has something in common with that of Morgan and Farkas. I am very concerned that if artificial limits on eligibility under the Individuals with Disabilities Education Act are imposed on the basis of racial disparities, that step will harm children who need both services and the procedural protections the law provides against suspension and other school discipline when the students’ misconduct results from their disabilities. But the critics who emphasize the statistical disparity have an important point: special education in some instances does not represent extra benefits, but rather means being shunted into isolated programs and placements in which services are of poor quality and the expectations for the students are low. African American children are particularly likely to be in special education settings that are self-contained or have low levels of integration into the mainstream. Schools need to act on the premise that special education is a bundle of extra services to help the child succeed, rather than a place to put the child. If they do not, special education will not provide the benefits that it ought to, and the racial overrepresentation will remain a problem to be addressed.
Thursday, June 25, 2015
Study: No Empirical Support for Common Belief that Minorities are Overrepresented in Special Education
A UC-Irvine-Penn State study released this week refutes some conventional wisdom that minority students are overrepresented in special education classes. The federal government currently requires school districts to allocate funds for early-intervention efforts that are designed to minimize overidentification of minorities in special education programs. The recent study, Minorities Are Disproportionately Underrepresented in Special Education: Longitudinal Evidence Across Five Disability Conditions, suggests that the government's special education policy may be misdirected. The study's researchers found that "minority children were consistently less likely than otherwise similar white, English-speaking children to be identified as having (a) learning disabilities, (b) speech or language impairments, (c) intellectual disabilities, (d) health impairments, or (e) emotional disturbances. Language-minority children were less likely to be identified as having (a) learning disabilities or (b) speech or language impairments." The study's authors explain that the seemingly conflicting empirical studies about disproportionate minority representation in special education is often tied to what disability is being measured. The authors partly attribute this contradictory findings to previous studies failing "to account for potential confounding factors prior to estimating minority children’s risk of being identified as disabled," such as low birth weight, poverty, and state of residence. Other significant factors were obstacles resulting in minority families being less likely than White families to make use of special education services; an aversion by minority families to the stigma associated with disability identification; and less health care access. Instead, the authors' conclude that "federal legislation and policies may be inadvertently exacerbating educational inequities by reducing access to special education services for schoolchildren who are racial, ethnic, or language minorities."
The Foundation for Individual Rights in Education has released it annual report on the state of free speech on college and university campuses. The Foundation examined 437 schools and "found that more than 55 percent maintain severely restrictive, 'red light' speech codes—policies that clearly and substantially prohibit protected speech. Last year, that figure stood at 58.6 percent; this is the seventh year in a row that the percentage of schools maintaining such policies has declined." Only five percent of schools, however, actually affirmatively protect speech.
One of the worst offenders was Missouri, where "over 85 percent of schools surveyed received a red light rating." Virginia and Indiana were among the best, with "only 31 percent and 25 percent of schools surveyed . . .receiv[ing] a red light rating." The Foundation attributes Virginia's numbers to recent legislation "designating outdoor areas on the Commonwealth’s public college campuses as public forums. Under the law, Virginia’s public universities are prohibited from limiting student expression to tiny 'free speech zones' or subjecting students’ expressive activities to unreasonable registration requirements."
Wednesday, June 24, 2015
The U.S. Department of Education, responding to a complaint filed by the Education Law Center, has found that New Jersey failed to meet the conditions of its NCLB waiver. Interestingly, the Department does not indicate what if any sanctions will follow from this violation, but it does indicate that this violation will affect the Department's review of New Jersey's pending waiver renewal request. Reading between the lines, this means that New Jersey has placed itself at risk of loosing its waiver and becoming subject to the sanctions originally included in NCLB. Here is the Education Law Center's summary of the background and the Department's findings:
Responding to a complaint filed by Education Law Center (ELC), the U.S. Department of Education (USED) has found the New Jersey Department of Education (NJDOE) failed to comply with requirements of its Elementary and Secondary Education Act (ESEA) waiver by not intervening to improve 28 low performing schools in Newark.
By letter dated June 19, Acting Assistant Secretary Heather Reiman details USED’s investigation of ELC’s complaint that, in 2012, then-Commissioner of Education Chris Cerf improperly gave into a demand from Newark’s State-appointed Superintendent, Cami Anderson, to allow her to retain full control over 28 low-performing schools classified by NJDOE as “priority” and “focus” schools. Superintendent Anderson wanted to prevent qualified staff from the NJDOE’s Regional Achievement Center (RAC) for Hudson/Essex Counties from intervening to improve the schools, as is required for all priority and focus schools statewide under New Jersey’s ESEA waiver and State “school turnaround” regulations.
Things are looking up in Pennsylvania. Earlier this year, I posted on the state forming the Basic Education Funding Commission to study how the state might distribute education funds more fairly across school districts. The Commission released its recommendations last Thursday. It proposed a new funding formula that weighs student and community factors such as poverty levels, number of English language learners, charter school enrollment, school district size, average income per household, and a district’s ability to raise funds. The formula would use a three-year average to account for student population to help account for school district growth as well.
This week, the Senate Education Committee voted unanimously to approval the Commission’s formula. The formula will now move to the Senate for consideration and hopefully a vote. The state is still a long way from the finish line, but in a state that distributed education funds without any formula for years, that repealed a short-lived formula when its newest governor took office, and that has allowed Philadelphia schools to languish with huge budget shortfalls and basic resource needs over the past two years, this is a big step forward. Stay tuned.
Tuesday, June 23, 2015
Last weekend, Texas Gov. Greg Abbott signed legislation ending Texas' criminal penalties for the "failure to attend school" law. The controversial law made Texas one of two states that prosecuted schoolchildren (and their parents) when students skipped school or class without a valid excuse. Last year, for example, Texas reportedly prosecuted 100,000 children and their parents for truancy. Now, instead of treating truancy as a Class C misdemeanor, the new law requires schools to address students’ truancy problems, such as homelessness, illness, or other difficulties, before referring students to court. Additionally, truancy matters will now be referred to civil rather than criminal court. With a coalition led by legislators and Texas Appleseed, H.B. 2398 received broad-based support from Texas Association of School Boards, the Texas Association of Business, the Juvenile Justice Association of Texas, Texas Justices of the Peace & Constables Association, and the Texas PTA. Texas was under investigation by the Department of Justice for the truancy law this spring, and a class action suit was filed challenging the law. Read more about the bill at the Courthouse News Service here and H.B. 2398 here.
Well, it's not quite as simple as the title suggests, but a new study by two graduate students from Rice and Duke finds
"that the legacy of slavery contributes to black-white education disparities through greater public-private school racial segregation". . . . Using regression analysis to explain differences in the degree of attendance disparities across most counties in the South, researchers found a correlation between historical geographic slave concentration and modern day K-12 school segregation. An increase in slave concentration is related to greater underrepresentation of white students in public schools.
In other words, the more slaves who lived in a particular geographic location the more likely white students are to attend private school today.
To be clear, several factors influence white enrollment in private schools, but the correlation between the concentration of African American students and white enrollment in private schools is strongest "in states where slavery was most strongly rooted. . . . The study found that the black population concentration relationship only holds in the original Confederate States, or Deep South: Alabama, Florida, Georgia, Louisiana, Mississippi, South Carolina and Texas." In the Deep South, when African Americans near and cross fifty percent of the student population, white enrollment plummets, with whites' eventually attending private school at more than twice the rate as minorities. The same disparities are not true in the upper south.
Download the full study here.