Monday, September 8, 2014
Last year brought a spate of North Carolina cases involving charter schools claiming that local districts were denying them appropriate access to the districts' rainy day funds. The charters won and were able to immediately tap into funds that the districts had set aside for long term emergency. Apparently, the response of some districts was to reclassify funds to exempt them from the fund sharing statute implicated in prior cases. That reclassification of funds lead to another new case, Thomas Jefferson Classical Academy Charter School v. Cleveland County Board of Education, 2014 WL 4290557 (N.C. Ct. App. Sept. 2, 2014), in which the Thomas Jefferson charter school alleged that the school board "wrongfully moved approximately $4.9 million from the local current expense fund, which must be shared with the charter schools, to a 'special revenue fund,' which is not shared."
Susan DeJarnatt's new article, Community Losses: The Costs of Education Reform, 45 University of Toledo Law Review 579 (2014), is available. She offers this summary in her abstract:
Philadelphia has been a hotspot for various methods of education reform since 2002 when the Philadelphia School District was taken over by the Commonwealth of Pennsylvania. It now has over 80 bricks and mortar charter schools and sends thousands of students to on line cyber charter schools. Many of the charter schools were formerly traditional public schools that were converted to charters. This article examines how the waves of education reform in Philadelphia have treated public education as a private good, to the exclusion of its role in promoting democratic equality and social efficiency. The article explores how this focus has costs, including the loss of community voice, the loss of effective parental choice for those parents who prefer public schools; economic costs in the negative impact of charter costs on the school district's budget; and loss of opportunities for other methods of education reform that treat public education as a public good.
Parents Sue After High School Students Were Expelled for Social Media Postings Mistaken for Gang Activity
Parents of four African American high school students filed a section 1983 lawsuit last week against an Ohio school district and police officers after the students were expelled for making alleged gang hand signs in online pictures and rap videos on social media. The lawsuit alleges that in April 2014, administrators at Colerain High School in Ohio asked police to detain African-American students for several hours for questioning about the students' social media postings as a “proactive approach by the District to squelch" gang rumors. The school investigation started after media coverage of an unrelated shooting by an African American Colerain student this spring. School administrators received complaints from parents who were "uncomfortable" about images and online rap videos on social media depicting other African-American students who attended Colerain High School, including the four plaintiffs. One of the online rap videos was made by a group of students who called themselves "The Money Gang," which some parents of other students mistook to be an actual gang organization. The complaint states that one of the online rap videos was part of a class assignment for which the student received an A. Responding to pressure from the concerned parents, the school and police gathered the four African American students as part of an investigation into the “Money Gang,” which the suit alleges was "nothing more than the name used by a group of African-American students when performing music videos outside of school hours." The suit, E.H., et al., v. Northwest Local School District, No. 1:14-CV-694 (filed Sept. 2, 2014, S.D. Ohio), requests injunctive relief expunging any record of school discipline given to plaintiffs and compensatory damages.
Friday, September 5, 2014
In 2012, the Washington Supreme Court held that the state was failing in its constitutional duty to make ample provision for education. It gave the state until 2018 to fix the problem. Such a long time line did not portend well when it was issued, as lawmakers tend to drag their feet unless pushed on these issues. Due to the state's failure to make significant progress over the past two years, the plaintiffs asked the court to hold the state in contempt and the court is waking up to general realities. In a hearing before the court on Wednesday, several members of the court seemed prepared to hold the state in contempt if it does not act quickly to pass new funding legislation in its upcoming legislative session. One justice went so far as to suggest the court should go ahead and hold the state in contempt now, remarking of the state's failure to act over the past two years: "Why should we think that you're going to do something different?" Unfortunately, it has taken standoffs and this level of aggressiveness by plaintiffs and courts to spur reform in several other states in the past. For instance, in Arizona, the state was held in contempt for about a month with enormous fines each day before it acted to address inadequate funding for English Language Learners. Signally its seriousness through oral argument may be a good way of getting the state to act without formally escalating the problem.
More on the oral argument and case here.
Thursday, September 4, 2014
Richard D. Kahlenberg and Halley Potter's new book, A Smarter Charter: Finding What Works for Charter Schools and Public Education, will release on September 12. The promotional materials offer this description:
Moving beyond the debate over whether or not charter schools should exist, A Smarter Charter wrestles with the question of what kind of charter schools we should encourage. The authors begin by tracing the evolution of charter schools from teacher union leader Albert Shanker’s original vision of giving teachers room to innovate while educating a diverse population of students, to today’s charter schools where the majority of teachers are not unionized and student segregation levels are even higher than in traditional public schools. In the second half of the book, the authors examine two key reforms currently seen in a small but growing number of charter schools—teacher voice and socioeconomic integration—that have the potential to improve performance and reshape the stereotypical image of what it means to be a charter school.
On Monday, Phi Delta Kappan (PDK)/Gallup released the results of its recent poll of attitudes on public education. Topping the public's concern was funding for public schools. The authors found that "[b]y far, lack of financial support continues to be the No. 1 challenge facing public schools in America. Other challenges most often mentioned were concerns about curriculum standards, student discipline, and getting and keeping good teachers."
Surprising to me was how widespread the support for charters was (70%), although this high number seemed to reflect the general desire for school choice as opposed to charters per se, particularly given that a substantial number did not really understand what a charter school is. Also surprising was how important Common Core has become. It is now part of household or playground discussions. A year ago, very few were aware of it or talking about it, now 80% have heard about it, and 60% oppose it. Over half also oppose standardized testing, as currently implemented.
Twinette Johnson's new article, Going Back to the Drawing Board: Re-Entrenching the Higher Education Act to Restore Its Historical Policy of Access, 45 Tol. L. Rev. 545 (2014), is now in print and available electronically. She offers this summary in her abstract:
This article explores both the historical entrenchment of the Higher Education Act (“HEA” or “the Act”) and ongoing attempts to retrench it. In it, I argue that Congress should return the HEA to its historical roots and enact reauthorizing legislation that will set the course for re-entrenching the Act and its historical policy. This re-entrenching will properly set the focus of the Act on providing widespread higher education access by creating and implementing new pathways (funding and otherwise) to that access.
Wednesday, September 3, 2014
Argyle Independent School District in Texas has started off the school year with a new policy. All liscened teachers and staff are authorized to carry guns at school. My guess is that very few teachers will take the district up on this "opportunity," but some surely will. The district is also putting visitors on notice with signs announcing that its staff and teachers will use whatever force necessary to protect their students. Hopefully the policy is more scare tactic than a new state of reality. More here.
On its face, the title of this post is rhetorical, but the authors of Badass Teachers Unite! would argue it is the key question dividing themselves and "reformers." For those unfamiliar, Badass Teachers is a group--not quite as radical as their name might suggest-- that "is for every teacher who refuses to be blamed for the failure of our society to erase poverty and inequality, and refuses to accept assessments, tests and evaluations imposed by those who have contempt for real teaching and learning." They charge that reformers are taking the position
that schools in depressed areas can be radically improved without doing anything to improve conditions in the neighborhoods they are located in, [which] flies in the face of the common sense of anyone who lives or works in such communities, so much so that it represents a form of collective madness! The idea that an entire urban school system (not a few favored schools) can be uplifted strictly through school-based reforms, such as eliminating teacher tenure or replacing public schools with charter schools, without changing any of the conditions driving people further into poverty is contrary to anyone’s lived experience and has in fact, never been accomplished anywhere in the world. Let me break down for you what the no excuses approach to school reform means in commonsense terms.
Tuesday, September 2, 2014
New Hampshire Supreme Court Reinstates Tuition Tax Credit Program But Avoids Law’s Constitutionality
A unanimous New Hampshire Supreme Court rejected a challenge last week to the state’s tuition tax credit law but side-stepped the issue of its constitutionality. The state supreme court dismissed Duncan v. State of New Hampshire on standing grounds, holding that a recent amendment to the law allowing taxpayer standing was insufficient to confer standing under the state constitution. While New Hampshire’s constitution does not have a corresponding provision to the federal constitution’s Article III standing clause, the court interpreted a provision authorizing the supreme court to rule upon “upon important questions of law and upon solemn occasions” to prohibit issuing advisory opinions to private persons. The N.H. Supreme Court’s ruling reinstates a law allowing businesses to receive an 85 percent tax credit when they donate to private scholarship organizations for students who attend private school, homeschool or an out-of-district public school. A lower court ruled last year that the tax credit program unconstitutionally sent public tax dollars to private religious schools. Right now, the tax credit program is so small that it may be difficult to demonstrate harm in a future legal challenge, Bill Duncan, state Board of Education member and lead plaintiff, told NPR. The state’s first scholarship program raised $250,000 dollars for scholarships in 2013, but $50,000 this year, albeit in the shadow of the lower-court ruling. The state program would allow up to to $5.1 million in tax credits to be claimed this year. Read Duncan v. State of New Hampshire here.
MALDEF secured a major victory in its long running school finance litigation in Texas. For those who have not followed the litigation, this is just one in a long line of victories. Unfortunately, plaintiffs must continually return to the courts in Texas, as its funding system perpetually backslides or fails to afford a full remedy. Below is MALDEF's press release and a link to the opinion.
TRAVIS COUNTY DISTRICT COURT DECLARES CURRENT TEXAS SCHOOL FINANCE SYSTEM UNCONSTITUTIONAL--AGAIN
Current Finance System Violates Students’ Rights to an Adequate and Equitable Education
AUSTIN, TX – Today, Travis County District Court Judge John K. Dietz issued his final judgment, declaring the current Texas school finance system inadequate, unsuitable, and inequitable for Texas school children under Article VII, Section 1 of the Texas Constitution, and in violation of the prohibition on a state ad valorem tax under Article VIII, Section 1-e. “Rather than attempt to solve the problem, the State has buried its head in the sand, making no effort to determine the cost of providing all students with a meaningful opportunity to acquire the essential knowledge and skills reflected in the state curriculum and to graduate at a college- and career-ready level,” Judge Dietz stated in his scathing rebuke of the school system. This long-anticipated ruling follows a three-week hearing earlier this year after Judge Dietz reopened the evidence in the wake of statutory changes made to the public education system during the 2013 Legislative session. On February 4, 2013, he issued a similar ruling from the bench following a three-month trial.
Thanks to Charlotte Garden for sharing the notice below. I would encourage anyone who is even moderately interested to go. One of the biggest mistakes I made early in my career was not taking advantage of great opportunities like these to get feedback.
Twelfth Annual LatCrit-SALT Call for Participation Junior Faculty Development Workshop October 9, 2014 University of Nevada-Las Vegas Las Vegas, NV
LatCrit, Inc. and the Society of American Law Teachers (SALT) are pleased to invite interested participants to the Twelfth Annual Junior Faculty Development Workshop (FDW), immediately preceding the SALT Teaching Conference. This annual workshop is designed for critical, progressive, and social justice oriented pre-tenure professors, including clinicians and legal writing professors, as well as those who may be contemplating a teaching career. However, we also encourage more senior members of the profession to attend, share their experience, and serve as resources and mentors.
Friday, August 29, 2014
Wednesday Gov. Bobby Jindal filed suit against the Department of Education over its requirement that states applying for Race to the Top Funds adopt the Common Core Curriculum. Yesterday, the Department of Education withdrew Oklahoma's No Child Left Behind Waiver because the state repealed the Common Core Curriculum. In short, a lot is happening very quickly in national education policy, and the courts are being called upon to get involved.
My initial read of Jindal's suit is that it is misplaced. First, Congress extended the Department enormous discretion in shaping the types of reforms and programs the Department could pursue through Race to the Top. A blank check describes it best. Second, no states were forced to apply for Race to the Top funds and many did not. Thus, those who did were acting completely voluntarily. The notion that Congress violated state's rights when these states jumped at the money is a hard narrative to make.
Jindal's only colorable claim is in regard to the general education provision statute that indicates that the Department shall not dictate curriculum to states. This provision, however, may be superceded by the discretion afforded in Race to the Top. Even if not, because the curriculum flowed through a competitive grants it does not easily fall in the category of a federal dictate.
Oklahoma, on the other hand, has far more to complain about. As I demonstrate in my new article here, the Secretary lacked the statutory authority to impose new conditions on states in exchange for NCLB waivers. Moreover, the unilateral imposition of new conditions amount to law making power that an agency cannot possess. Finally, the imposition of new waivers ten years into NCLB violates the clear notice rules required by the Constitution. In short, Jindal may not have much to complain about, but Oklahoma (and Washington) certainly do.
Thursday, August 28, 2014
Following Louisiana Governor Bobby Jindal's decision this week to sue the federal government over Common Core, yesterday a central Florida county board of education opted out of all state-mandated testing in what a board member called “an act of civil disobedience," the Ft. Myers News-Press reports. Supporters at the Lee County school board meeting saw the vote as a protest against the Common Core standardized testing standards. Florida’s Lee County became the first school district in the state to boycott state standardized testing, which are called the Next Generation Sunshine State Standards. The Sunshine State Standards are acknowledged to be a rebranded (and lightly-altered) version of Common Core after the state withdrew from the CC standards. Lee County Superintendent Nancy Graham responded to the county school board vote saying, "I am gravely concerned about the decision that was made tonight, and I'll try to make sense of this.” The Florida Department of Education has a number of ways that it can respond to Lee County Board’s noncompliance, including removing board members, pulling funding and rewards programs, not awarding standard diplomas, and ending opportunity scholarships. Because the Lee County school board’s attorney outlined those consequences for the members, it is yet unsure whether Lee County will hold its stance or is simply making a political statement about Common Core. Read more here and here.
Derek posted yesterday about a case that shows how school-related juvenile charges can derail a student's education. The Los Angeles Unified School District announced last week that it is taking steps to alleviate some of those consequences by decriminalizing school discipline. Cribbed from the L.A. Times: L.A. school police will no longer issue citations for minor offenses such as campus fights, petty thefts, and tobacco possession and will instead use alternatives to arrest. The district says that the move is a recognition that zero tolerance polices are not making schools safer but are instead pushing out struggling students who then may drop out and get in more serious trouble. L.A. Unified developed the graphic to the left to guide schools towards internal discipline and when to call the police. Click the graphic to see the full chart and read the L.A. Times story here.
Wednesday, August 27, 2014
Getting to the bottom of what would otherwise be a simple suspension appears to be a complex task in J.A. ex rel. Swain v. Talladega City Bd. of Educ., 2014 WL 4185137 (N.D. Ala. Aug. 15, 2014) because of the statutory and constitutional context in which it arises. The court does not chronologically or clearly articulate the facts, but it appears that J.A. and his Assistant Principal were involved in some type of physical altercation. As a result, J.A. was referred to the police and charged with assault in juvenile court. Pursuant to Alabama statute, a school shall not readmit a student charged with drugs, weapons, physical harm, or threats until the juvenile charges are disposed of. As a result, J.A. was suspended from school and assigned to an alternate school.
J.A. filed suit against the principal and district, alleging the principal assualted him and that he was deprived of his substantive due process rights. He also filed for a preliminary injunction, requesting that he be readmitted. Beyond that, things get complicated. J.A.'s juvenile proceedings are apparently dragging out and, thus, he remains excluded from school based on the statute. He points out the illogic of this statute, as it would permit a student quickly found guilty or delinquent to return to school in short order, but would indefinitely exclude the innocent student who holds out for or requires more complex deliberations. In other words, the readmission is not triggered by substantive facts, guilt, or innocence, but simply the length of time it takes for juvenile proceedings to run.
Tuesday, August 26, 2014
Nashville Schools Ordered to Cease Searches and Examinations by Nurses Until Proper Training and Policy in Place
A school nurse in the Davidson County public schools in Nashville, Tennessee, subjected a female student to a medically unjustified genital examination in the presence of a school official. The girl's parents challenged the examination as a violation of her rights under the Fourth and Fourteenth Amendments. The case went to trial and the jury found for the defendants. The parents moved for a new trial, which the court in Hearring v. Metro. Gov't of Nashville & Davidson Cnty., 2014 WL 3924520 (M.D. Tenn. Aug. 11, 2014), denied. The court, however, did grant the plaintiff an injunction as to future examinations by the district. The court found that the staff were insufficiently trained and the district had adopted insufficient standards to prevent unwarranted invasions of privacy.
ACLU Challenges Massachusetts School District's Policy That Requires Some to Pay to Use School-Provided iPads at Home
The Associated Press reports that the ACLU has filed a complaint with the Massachusetts Department of Elementary and Secondary Education challenging a school's policy that allows allows students identified as qualifying for free or reduced price meals to take school-provided iPads home, but requires other students to pay for the devices if they want to take them out of school. Under the district's reported policy, if parents do not wish to pay for an iPad, their child may only use the device at school. ACLU-Massachusetts deputy legal director Sarah Wunsch told the AP that Massachusetts' Mendon-Upton School District was violating the law by not providing equal access to educational resources. This particular issue is likely to be resolved quickly by the district's changing its policy, but the discrepancy does highlight a recurring problem in public education: pressure on parents to subsidize educational intiatives that school districts cannot truly afford. The ACLU complaint in Massachusetts is part of a longstanding efforts to investigate "two-tiered educational systems": a higher tiers for those who could pay for technology, field trips, course fees, etc., and a lesser one for those who cannot. (See Pay-to-Learn: An Investigation of Mandatory Fees for Educational Activities in California's Public Schools, August 2010.) This issue was highlighted earlier this year in The Hidden Cost of Public Education--a four-part series by education advocate and journalist Trisha Powell Crain. In the series, Crain focuses on Alabama, but the trend of public education fee creep is applicable nationwide. To see Crain's take on schools' "required" dues and fees, go here.
Monday, August 25, 2014
For the past three decades, desegregation litigation regarding the Little Rock Arkansas School District and surrounding districts has made its way through the federal courts. In 2011, the districts in North Little Rock and Pulaski petitioned for unitary status and sought to dissolve the interdistrict desegregation plan in place. The United States District Court for the Eastern District of Arkansas, 2011 WL 1935332, granted the petitions in part, but on appeal in Little Rock Sch. Dist. v. Arkansas, 664 F.3d 738 (2011), the Eighth Circuit reversed, finding significant continuing vestiges of segregation and holding that the State of Arkansas had a continuing obligation to fund the interdistrict desegregation plan. Last week, on remand, the district court approved a settlement agreement between the parties by which the state of Arkansas is no longer a party to the case.
Thursday, August 21, 2014
The determinative facts are hard to confirm at this point, but based on news accounts, a student in Summerville, SC made a series of fictional story posts on Facebook as part of a class assignment just before the school year started. His fictional story was about killing a pet dinosaur and buying a gun to do it. School officials reported him to the police. On the first day of class, the police then detained him and searched his locker and backpack. They did not find anything, but according to the police, the student became irate over the search. News reports indicate he was arrested and charged with disorderly conduct under the state's Disturbing Schools Act, although I have not confirmed the arrest and charge. The school also suspended him for the week. Whether the school suspended him for the facebook posts, the purported disorder, or both is unclear.
Based on the current facts as presented, the case seems to raise free speech, substantive due process, search and seizure, and statutory infraction issues. The devil is in the detail, but it may well be an example of breaching the "Constitutional Limits of Zero Tolerance," which I explain here. For more on the facts of this individual student's case, see here.