Monday, April 17, 2017
Ninth Circuit Finds School District Must Pay Attorney Costs For Student Formerly In Juvenile Detention
The Ninth Circuit held last week that a school district must pay attorney fees in a suit resolving which state agency bears the responsibility to pay for special education services for students in juvenile detention. In 2013, the Ninth Circuit held in the case that a school district had to pay for education services under under the Individuals with Disabilities Education Act (“IDEA”) for student K.G., who was formerly in juvenile detention. K.G. then sought attorney's fees to recover the costs of the suit. The district court below denied K.G.'s request for attorneys’ fees, finding that he was not a “prevailing party” under the IDEA because his victory—determining which agency would fund the free appropriate public education (FAPE) required by the IDEA—was “technical or de minimis.” The district court further found that K.G.'s argument was the same as the school district's--that the State was responsible for K.G.'s education rather than the school district. The Ninth Circuit rejected both grounds. The circuit court noted that K.G. had to prove that some state agency was responsible for his education, and his presence in the litigation was necessary even though he and the school district shared similar positions. However, the Ninth Circuit remanded part of the case for the district court to determine whether K.G. was entitled to any attorney fees for litigation after his graduation--that was presumably after he had gotten the education due him. The case is Irvine Unified Sch. Dist. v. Cal., No. 14-56457 (9th Cir. Apr. 13, 2017).
D.C. District Court Rules That Student Painting Of Ferguson Shooting Was Properly Removed From U.S. Capitol Display
The D.C. Circuit denied a congressman's and a high school student's request to restore the student's artwork protesting the police shooting of Michael Brown to an art display at the U.S. Capitol. The federal court concluded that although the student's painting was removed because of its political expression about the Ferguson, Missouri police shooting and subsequent protests, an art display in the Capitol could be deemed government speech over which Congress has editorial control. In 2016, student David Pulphus won a place in the Congressional Art Competition to represent Missouri’s First Congressional District with his painting about the Ferguson police shooting incident. Pulphus's painting was selected to represent Rep. William Clay's district (Clay was a co-plaintiff in this case). But several members of Congress unilaterally and repeatedly took the painting down from the wall, objecting that the painting was “anti-police.” (In the painting, which NPR.org has posted here, a police officer is depicted with a warthog head and is pointing a gun at a young man who has a wolf's head and a tail.) Eventually, the Architect of the Capitol (who oversees the student art competition), permanently removed the painting for failing to meet the competition’s content suitability guidelines, which bans artworks that depict a "contemporary political controversy," or is sensationalistic or gruesome. Pulphus claimed that removing his painting was viewpoint discrimination in violation of the First Amendment. The district court agreed that the painting was banned because of its stance, but that because Congress sponsored the competition and each artwork was labelled with the congressperson's name and district and displayed in the Capitol, the art's content would likely to be perceived by the public as government speech. Because Congress maintains editorial control over that speech through the House Office Building Commission (HOBC), which is composed of the Speaker and the majority and minority leaders of the House, the student had no First Amendment right at issue. The court also found that Pulphus could not show sufficient irreparable injury or public interest to warrant a preliminary injunction. The case is Pulphus v. Ayers, No. 2017-0310 (D.C. Apr. 14, 2017).
Friday, April 14, 2017
New Report Paints California's Charter Schools As Economic Boondoggle That Has Little to Do with Student Need, Cost Efficiency, or Quality
A new report on California's charter schools may be one of the most scathing to date--in part because it does more than examine student achievement. Achievement studies inevitably raise methodological and interpretation debates. More simply, it is often unclear whether the studies are comparing apples to apples. This new study, however, filters charter schools through other more straightforward data and factors: locality need, cost efficiency, and legal compliance. On these measures, the report suggests that California's charter school expansion is a financial boondoggle. To use a baseball analogy, the disappointing quality of many of these schools is really just the fourth strike against a policy that should have already been called out. The report's introduction states:
From less than 200 schools in 1998, the California charter school industry has grown by more than 600%, to over 1,200 schools serving nearly 600,000 children, or nearly 10% of the state’s students. One of the sources fueling this growth is an extensive network of government programs that provide public funding or tax subsidies for charter school buildings. Over the past 15 years, California charter schools have received over $2.5 billion in tax dollars or taxpayer subsidized funds to lease, build, or buy school buildings. This report finds that this funding is almost completely disconnected from educational policy objectives, and the results are, in turn, scattershot and haphazard. Hundreds of millions of dollars are being spent each year without any meaningful strategy. Far too much of this public funding is spent on schools built in neighborhoods that have no need for additional classroom space, and which offer no improvement over the quality of education already available in nearby public schools. In the worst cases, public facilities funding has gone to schools that were found to have discriminatory enrollment policies and others that have engaged in unethical or corrupt practices.
The reports key findings include:
- Over the past 15 years, California charter schools have received over $2.5 billion in tax dollars or taxpayer subsidized funds to lease, build, or buy school buildings.
- Nearly 450 charter schools have opened in places that already had enough classroom space for all students—and this overproduction of schools was made possible by generous public support, including $111 million in rent, lease, or mortgage payments picked up by taxpayers, $135 million in general obligation bonds, and $425 million in private investments subsidized with tax credits or tax exemptions.
- For three-quarters of California charter schools, the quality of education on offer is worse than that of a nearby traditional public school that serves a demographically similar population. Taxpayers have provided these schools with an estimated three-quarters of a billion dollars in direct funding and an additional $1.1 billion in taxpayer-subsidized financing.
- Even the worst charter schools receive generous facility funding. The California Charter Schools Association identified 161 charter schools that ranked in the bottom 10% of schools serving comparable populations last year, but even these schools received over $200 million in tax dollars and tax-subsidized funding.
- At least 30% of charter schools were both opened in places that had no need for additional seats and also failed to provide an education superior to that available in nearby public schools. This number is almost certainly underestimated, but even at this rate, Californians provided these schools combined facilities funding of over $750 million, at a net cost to taxpayers of nearly $400 million.
- Public facilities funding has been disproportionately concentrated among the less than one-third of schools that are owned by Charter Management Organizations (CMOs) that operate chains of between three and 30 schools. An even more disproportionate share of funding has been taken by just four large CMO chains— Aspire, KIPP, Alliance, and Animo/Green Dot.
- Since 2009, the 253 schools found by the American Civil Liberties Union of Southern California to maintain discriminatory enrollment policies have been awarded a collective $75 million under the SB740 program, $120 million in general obligation bonds, and $150 million in conduit bond financing.
- CMOs have used public tax dollars to buy private property. The Alliance CollegeReady Public Schools network of charter schools, for instance, has benefited from over $110 million in federal and state taxpayer support for its facilities, which are not owned by the public, but are part of a growing empire of privately owned Los Angeles-area real estate now worth in excess of $200 million.
Thursday, April 13, 2017
Fourth Circuit Vacates the Order Protecting Gavin Grimm, But Casts Him As a Modern Human Rights Leader
The Fourth Circuit has vacated the injunction that was securing Gavin Grimm's access to facilities consistent with his gender in Gloucester County Schools. Less than a year ago, it seemed Grimm's case was set to open doors for others across the country. He had the federal government and an appellate federal court on his side. While Grimm's bravery and persistence has had positive impacts, the federal government and courts took two steps forward just to take two, if not three, steps backward. At least two judges on the Fourth Circuit lamented this result, but cast Grimm as the victory in the broader scheme of things. In a concurrence to the order vacating Grimm's injunction, Judges Davis and Floyd wrote:
G.G., then a fifteen-year-old transgender boy, addressed the Gloucester County School Board on November 11, 2014, to explain why he was not a danger to other students. He explained that he had used the boys’ bathroom in public places throughout Gloucester County and had never had a confrontation. He explained that he is a person worthy of dignity and privacy. He explained why it is humiliating to be segregated from the general population. He knew, intuitively, what the law has in recent decades acknowledged: the perpetuation of stereotypes is one of many forms of invidious discrimination. And so he hoped that his heartfelt explanation would help the powerful adults in his community come to understand what his adolescent peers already did. G.G. clearly and eloquently attested that he was not a predator, but a boy, despite the fact that he did not conform to some people’s idea about who is a boy.
Regrettably, a majority of the School Board was unpersuaded. And so we come to this moment. High school graduation looms and, by this court’s order vacating the preliminary injunction, G.G.’s banishment from the boys’ restroom becomes an enduring feature of his high school experience. Would that courtesies extended to others had been extended to G.G.
Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals—Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few—who refused to accept quietly the injustices that were perpetuated against them. It is unsurprising, of course, that the burden of confronting and remedying injustice falls on the shoulders of the oppressed. These individuals looked to the federal courts to vindicate their claims to human dignity, but as the names listed above make clear, the judiciary’s response has been decidedly mixed. Today, G.G. adds his name to the list of plaintiffs whose struggle for justice has been delayed and rebuffed; as Dr. King reminded us, however, “the arc of the moral universe is long, but it bends toward justice.” G.G.’s journey is delayed but not finished.
G.G.’s case is about much more than bathrooms. It’s about a boy asking his school to treat him just like any other boy. It’s about protecting the rights of transgender people in public spaces and not forcing them to exist on the margins. It’s about governmental validation of the existence and experiences of transgender people, as well as the simple recognition of their humanity. His case is part of a larger movement that is redefining and broadening the scope of civil and human rights so that they extend to a vulnerable group that has traditionally been unrecognized, unrepresented, and unprotected.
G.G.’s plight has shown us the inequities that arise when the government organizes society by outdated constructs like biological sex and gender. Fortunately, the law eventually catches up to the lived facts of people; indeed, the record shows that the Commonwealth of Virginia has now recorded a birth certificate for G.G. that designates his sex as male.
G.G.’s lawsuit also has demonstrated that some entities will not protect the rights of others unless compelled to do so. Today, hatred, intolerance, and discrimination persist — and are sometimes even promoted —but by challenging unjust policies rooted in invidious discrimination, G.G. takes his place among other modern-day human rights leaders who strive to ensure that, one day, equality will prevail, and that the core dignity of every one of our brothers and sisters is respected by lawmakers and others who wield power over their lives.
G.G. is and will be famous, and justifiably so. But he is not “famous” in the hollowed-out Hollywood sense of the term. He is famous for the reasons celebrated by the renowned Palestinian-American poet Naomi Shehab Nye, in her extraordinary poem, Famous. Despite his youth and the formidable power of those arrayed against him at every stage of these proceedings, “[he] never forgot what [he] could do.”
Wednesday, April 12, 2017
The Kansas Supreme Court once again stood firmly on established precedent when, on March 2, the Justices declared Kansas school funding inadequate to support the actual cost of educating students to meet the state' s academic standards.
The ruling in Gannon v. State addresses head-on Governor Sam Brownback' s drastic reductions in public school funding, pushed through to pay for his massive tax cuts.
The Supreme Court has given the Legislature to June 30 to remedy the constitutional violation.
The latest Gannon ruling flows from the Kansas Legislature' s waffling on restoring Governor Brownback' s formula aid cuts. In 2014, the Legislature took steps to increase school aid, but reversed itself a year later.
The Gannon student and district plaintiffs, represented by Wichita attorney Alan Rupe and Newton attorney John Robb, turned again to the Supreme Court for relief. The Court bifurcated the issues in the case into equity and adequacy and sent the case to a lower court to develop an evidentiary record.
In February 2016, the Supreme Court ruled that the funding system was inequitable and ordered a remedy by June 30, 2016. The Legislature complied by the deadline.
In its March 2017 decision, the Supreme Court affirmed the lower court' s finding that Governor Brownback' s school aid cuts rendered the finance system constitutionally inadequate. The Court concluded that "every witness, including experts...confirmed that the costs of educating Kansas students and the demands on Kansas education had only increased since 2007...creating a gap between demands and resources in Kansas public education."
The Court relied on exhaustive evidence of severe deficits in essential resources in Kansas schools, including full-day kindergarten, extracurricular activities, and professional development. The resource deficits also included librarians, speech therapists, coaches, nurses, counselors and other staff, along with foreign language and art and music programs.
The Court also affirmed evidence of poor student outcomes, citing the unacceptable performance on state assessments of Kansas students overall, and students of color and low-income students in particular. The Court noted that, when the number of underperforming African American and Latino students is combined, the total equals all of the students "in every school district in every county with an eastern boundary beginning west of Salina-more than one-half of the state' s geographic area."
The Court also affirmed the lower court' s finding of a correlation between inadequate state funding and the decline in student achievement. The Court cited the "substantial evidence" that when funding increased after a previous school funding decision, student achievement also increased, and when funding was cut, student achievement also fell.
The Court concluded "the impact of the loss of funding" under the Brownback Administration was "endemic, systemic, and statewide."
The Gannon ruling follows the path taken by the New Jersey Supreme Court in Abbott v. Burke in 2011, when, based on a trial record of reductions in essential resources, the Court invalidated Governor Chris Christie' s $1.1 billion cut in formula aid and ordered the aid restored to urban districts.
But Gannon also stands in stark contrast to recent decisions by the Texas and Colorado Supreme Courts. Those Courts overturned trial court rulings of inadequate and unconstitutional school funding, ignoring both the overwhelming weight of the trial evidence and their own prior court precedents.
Unlike the Texas and Colorado Supreme Courts, the Kansas high court has stood steadfast in applying its precedent to vindicate the constitutional rights of the state' s school children to the resources needed to achieve Kansas's academic standards. The Kansas Supreme Court, in the face of deep recalcitrance by the Executive and Legislature, has demonstrated the institutional integrity that is the hallmark of an independent judiciary. And, by doing so, the Kansas Court has once again proved to be a true champion of equity.
Monday, April 10, 2017
It comes as no surprise that some of the most important jobs public-spirited graduates want to pursue do not offer high salaries. To make these careers feasible for indebted students, Congress in 2007 approved the Public Service Loan Forgiveness program, or PSLF, which provides for forgiveness of student debts of those who make payments on their loans for ten years and work for a qualifying public interest employer.
The trouble is, according to a lawsuit filed in December, the Education Department may be tinkering with the definition of qualifying employer.
The ten-year period will end this fall for early adopters, and now some of those student borrowers who counted on forgiveness say they have been told that they are no longer eligible after all. Last week, The New York Times ran a disheartening story about disavowals of forgiveness by the Department.
The subject started to get coverage after the American Bar Association filed a lawsuit against the Department in December on behalf of the students who were first told they could benefit from forgiveness, then were told later that they could not.
The lawsuit, filed in federal court in Washington, D.C., is worth watching. Changes to PSLF, codified at 20 U.S.C. §1087e(m), could have an impact on the lives of millions of students who rely on its availability when they make hard decisions about all aspects of their lives. Consider how the possibility of loan forgiveness influences choices about careers to pursue, retirement saving, major personal investments, marriage, children, and where to live.
No wonder the apparent decision by the Department to move the goalposts resulted in litigation.
According to the complaint filed by the American Bar Association (“ABA”) challenging the Department’s apparent decision that some student borrowers’ employment did not qualify them for forgiveness, some borrowers’ loan balances actually grew while they worked in what they thought were eligible public interest jobs. They used an income-dependent repayment plan and their payments did not make a dent in the principal.
The student borrowers believed that they would benefit from loan forgiveness because they filed “employment certification forms” and received confirmation that their employment qualified.
Then, after years of making payments, they received notice that their employment did not qualify – and that this finding applied retroactively, such that payments they had already made would not count toward the ten-year requirement. The law does not specify an appeals process, the ABA notes.
Why is the ABA suing the Department? Well, “high caliber employees” will leave or may not work for the organization if such employment does not qualify for loan forgiveness, according to the complaint.
The Department’s answer asserted that the Department had “ultimate authority to review” actions taken by the company that serviced the loans, suggesting that the Department considered no prior finding of eligibility for forgiveness to be binding. The Department’s response suggests also that perhaps the servicing entity did not have authority to make the eligibility findings that it had.
Further, the Department “does not make a final decision on whether a borrower has been employed by a qualified organization until the borrower submits an application for loan forgiveness,” suggesting that any interim confirmation of eligibility for PSLF is meaningless.
While the outcome matters greatly to students, the battle is also significant because it implicates the larger question of the extent to which the federal government will subsidize accessibility of higher education. Loan forgiveness to students in repayment reduces the cost of college, it just does so ex post rather than ex ante as a scholarship would.
Critics of PSLF warn of the program’s potential cost, at least implying that this subsidy is dangerous because of its expense. And perhaps a debate over national willingness to put higher education within reach of students ready to work in the public interest is one we should have.
In such a debate, we should take note of the distributive effects of PSLF: students with higher debts, often students who had less in the way of financial resources to begin with, are the ones who will be most affected by restrictions on the availability of forgiveness. The forgiveness program constituted a legislative effort to turn indebtedness into an incentive to go into fields that otherwise students might view as unaffordable.
But regardless, those students who have acted in reliance on PSLF deserve to have the promise of the 2007 legislation honored. They are, after all, working in the public interest.
Amanda McGinn makes a case for courts to establish a clear constitutional standard for excessive-force claims against school resource officers in her recent article, School Discipline Practices That Will Shock You, Literally: A Reevaluation of the Legal Standard for Excessive Force Against Students, 54 Am. Crim. L. Rev. 627, 629 (2017). In her note, McGinn writes that courts should apply the Fourth Amendment's objective-reasonableness test to school discipline and take into account a school's interest in developing citizens, not just in maintaining control and safety. Not only does the use of force and restraint result in physical and psychological harm, but research shows that physical punishment makes it more, not less, likely that children will be defiant and aggressive in the future. Ultimately, McGinn calls for most forms of restraint, such as stun guns, pepper spray, and handcuffs, would be found to be objectively unreasonable.
Friday, April 7, 2017
According to the AP, Arizona just passed a bill that will make every student in the state eligible for voucher. It may become the biggest voucher program in the nation. The "program allows parents to take between 90 percent and 100 percent of the state money a local public school would receive to pay for private or religious education. The average student who isn't disabled will get about $4,400 a year, but some get much more." The funding mechanism and its expected cost to the state is murky. "The original Arizona plan was estimated to cost the state general fund at least $24 million." Now, a revised plan and estimate are supposed to save the state $3.4 million by 2022.
What is clear, however, is that Arizona's per pupil funding for public schools currently ranks 47 out of 50 states. To make matters worse, it distributes those meager funds unequally. The Education Law Center's 2017 School Funding Fairness Report grades Arizona's funding distribution as an "F." Schools with moderate levels of student poverty receive only 88 cents on the dollar in comparison to schools with no student poverty. The comparison is even worse between high poverty school districts and low poverty school districts. In other words, Arizona spends the least on students who need the most.
That same report also shows that Arizona is doing almost nothing to fix its low funding levels or unequal distribution. Arizona ranks 49th in the nation in terms of the level of fiscal effort it exerts to fund its schools.
These background facts place Arizona's new voucher program in a troubling light. These cold hard facts show that the state is not really interested in supporting adequate and equal education for its students. Thus, it is no surprise the state would double down and make matters worse. If gross inequity and inadequacy in public schools does not bother the state as a general principle, why would robbing those schools of more money be a problem? Why not just cap the state investment in a students' education, send that student to private school, and tell the family and or the private school that they need to make up the difference? If things do not work out in the future, that is on the family and the private school.
These background facts also mean that the rhetoric of political leaders lacks credibility. Speaking of the voucher program, the Governor tweeted: "When parents have more choices, kids win." If one understands the facts, one understands that this voucher program is not about helping kids in Arizona "win." It is about raw politics and continuing the longstanding trend of depriving public schools of the resources they need to succeed. If parents in Arizona want vouchers (or charters), it is not because those policies are normatively appealing. It is because the state has been robbing them of the public education they deserve. Many families now surely believe they have no other realistic option. In short, the state has created the factual predicate of failing public schools to create the justification for its own pet project of privatizing education. The kids caught up in the mess simply do not matter.
Thursday, April 6, 2017
Ever since the Betsy DeVos was nominated as Secretary of Education, school choice advocates have been salivating over the possibility that the privatization of education would enter a new expansive era. Last week, the USA Today interviewed some of the nation's leading advocates of school choice and vouchers who are raising new concerns. Mike Petrilli of the Thomas B. Fordham Institute and Richard Hess of the American Enterprise Institute warn there is a downside to this expansion: the federal government will begin to regulate private schools more. Hess remarked "when you get a Democratic administration, an Elizabeth Warren administration, and they decide that eligible schools ... need to have anti-bullying programs and other accommodations? We will very quickly wind up and wonder, ‘What were we thinking?’” Petrilli said many private schools would forgo the funding if they have to abide by these types of regulations. “They just won’t participate,” he said. “And then what’s the point? You don’t have a program.”
Is this a sign of an evolving school voucher position that not only should the public fund private education, it should fund it with no strings attached?
That choice advocates could take such a position shows just how far the ground has shifted in a few short months. This position is incredible on any number of levels.
First, it assumes an entitlement to public funding for private choice. The problem is that there is no such entitlement. If the federal or state government is giving money to private schools or facilitating private choice, it goes without saying that it has the right to regulate that money. In fact, conditioning federal money is the real reason for giving out federal money to begin with. The federal government knows that its ability to regulate state and private actors is relatively small. Thus, it achieves its policy objectives by exchanging money for conditions. We do this in everything from health care to education.
Second, state and federal government has funded public education for the past century and a half because it is public education. The state and federal interest in funding private education is extremely small at best. The only interest in funding private education is to offset certain costs that might otherwise fall on public education. In other words, there is no independent reason to fund private education.
Third, federal funds for public schools come with a long list of conditions. Why we would condition funds in public schools but allow private schools to take them free of conditions? The only obvious rationale I see is a normative preference for private schools over public schools. Few, however, are willing to publicly fess up to that rationale. If they did, it would be contrary to the second point. In effect, the justification for funding education at all would begin to collapse if we preferenced private education over public education.
Finally, public education is premised on a set of cultural and constitutional norms--non-discrimination, fair process, equal opportunity, social cohesion, and freedom from religious coercion. As a general principle, private education is neither premised on nor committed to any of these norms. Without regulation, they would not accept them. And if they did not accept them, the federal government could not in fairness give them public money. One might even seriously question whether a new set of constitutional concerns would arise if the federal government did so.
While the Supreme Court has upheld vouchers for private religious schools, the Supreme Court has also held that the federal government cannot achieve unconstitutional ends indirectly. For instance, the federal government clearly cannot segregate schools itself. Could it indirectly achieve segregation through its spending power and have private or state entities do it for the federal government? The Court has said no.
Of course, just because private individuals might use public money to segregate or pursue religious ends does not meant that is the federal government's design--hence the prior decision upholding vouchers. But if we converted into a system dominated by private choice and entirely free of constitutional and cultural norms, the question of whether the government was pursuing a new impermissible design could rise to the fore.
Wednesday, April 5, 2017
Last year, I wrote that the Every Student Succeeds Act “ESSA reverses the federal role in education and returns nearly full discretion to the states.” I predicted that the flexibility afforded to states in devising their new ESSA accountable schemes would make “educational opportunity a random occurrence rather than a legal guarantee.” States would manipulate their accountability schemes and rely on a convoluted set of factors that effectively make it impossible to get a sense of school performance.
Early looks at these accountability systems suggest my prediction was correct. A recent analysis of California’s new ESSA system found,
Nearly 80% of schools serving grades three through eight are ranked as medium- to high-performing in the new ratings, earning them positive colors on report cards sent to parents. Last year in state testing at those same schools, the majority of students failed to reach English and math standards. More than 50 of those schools whose average math scores fell below proficiency receive the dashboard’s highest rating for math.
At the same time, Maryland is also considering legislation that would severely restrict the weight the state board of education could place on student achievement. The Washington Post reports, “Among the restrictions being advanced by lawmakers: limiting measures of actual school effectiveness (student achievement, student growth and graduation) to 55 percent of a school’s accountability rating, in favor of factors such as teacher satisfaction; . . . and barring the state from taking significant actions to reform the worst-performing schools, even after districts have had years to set them straight.”
State flexibility is not, as Betsy DeVos claims, being use to unleash the creativity and good faith efforts. It is being used to hide the fact that states are and have been doing a poor job providing equal and quality educational opportunities. To be clear, this does not mean that the No Child Left Behind took the correct approach or that standardized tests should drive school quality. But a common and transparent yardstick for school accountability is important. ESSA is allowing states to devolve into a system of apples, oranges, pears, watermelons, and lemons. By doing so, it deprives us of the ability to compare schools in any meaningful respect. For that reason, the new accountability systems are not simply hard to interpret, they are a complete waste of time.
Rather than devise a convoluted accountability system, Congress should have just fessed up to the fact that it was abandoning the federal role in education. Instead, it sought to keep up the ruse by requiring states to waste a lot of time and effort on these new systems.
For my full analysis of how the Every Student Succeeds Act abandons the federal role in education and what else is likely to come, see here.
Tuesday, April 4, 2017
Minnesota Court of Appeals Holds that Education Quality Suit Raises Nonjusticiable Political Question.
In a case of first impression in the Minnesota appellate courts, the state court of appeals recently reversed a trial court's refusal to dismiss to dismiss a class-action lawsuit that claimed that economic and racial segregation led to students being denied their state constitutional right to an adequate education. The Minnesota Court of Appeals found that the suit's claims required the court to define what was an adequate education, which in the court's view presented a nonjusticiable political question. The class action plaintiffs alleged that hyper-segregated schools” throughout Minnesota is a per se violation of the Minnesota State Constitution's Education Clause (article XIII, sec. 1) and that children of color and children in poorer districts receive an inadequate education by "any objective standards." The district court below refused to dismiss the plaintiffs' claims on the merits. In reversing that decision, the court of appeals wrote that the definition of adequate education is a standard specifically assigned to the state legislature and would require the court to make an initial policy decision in an area under legislative control. Citing precedent, the appellate court noted, "we deem judicial review of educational policy inappropriate." The case is Cruz-Guzman v. State, No. A16-1265, 2017 WL 957726 (Minn. Ct. App. Mar. 13, 2017).
Thursday, March 30, 2017
The Washington Post reports that the Department of Education has killed funding for one of its few voluntary integration programs. The rationale is pretty flimsy. According to the Post, an official said it was not a good use of money because the funds were for planning rather than implementation. What? Doesn't planning often lead to implementation? Aren't planning grants predicated on promises that districts will implement the plan? I hope this is just a poor excuse and not a guiding principle for future policy: act first, plan later. But if this is just a poor excuse, it begs the question of why the Department is killing this program. Is it anti-integration?
In a letter earlier this month, the National Coalition on School Diversity urged DeVos to retain the program. In the letter, it wrote:
[W]e write to express our support for the Opening Doors, Expanding Opportunities program (“Opening Doors”), and urge you to make the awards under this program as expeditiously as possible. As evidenced by the large number of districts from all over the country that expressed their intent to apply for the program, there is tremendous interest in this program and what it seeks to do—namely to use school choice to achieve diversity and increase equity in our nation’s public schools. This program gives parents more options, and will help to expand innovation and educational opportunity.
We were excited to hear your recent comments regarding the importance of diversity in American schools. During the Magnet Schools of America 2017 National Policy Training Conference, you eloquently spoke of the “the vital role [magnet schools] played to improve the lives of … students, combat segregation, and provide a quality option to parents and kids alike.” Opening Doors seeks to advance the same goal: combating segregation in our nation’s public schools, for the benefit of our children and future generations. Furthermore, during your confirmation process, you wrote in response to a question by Senator Murray (D-WA), stating: “I believe government policies should not be established to intentionally create racial isolation, especially in our elementary and secondary schools.”
Opening Doors will help combat the rising resegregation we are seeing take hold in many public schools across the country. As the Government Accountability Office noted last year, while schools serving primarily Black and/or Hispanic students represented only 16 percent of all K-12 public schools, they accounted for the majority (61 percent) of high-poverty schools in 2013-14. Diversity is beneficial to all students, regardless of socioeconomic background or race. As you likely know, research shows that students attending socioeconomically and racially diverse schools have better test scores and higher college attendance rates than peers in more economically and racially segregated settings.
For these reasons, we urge you to award the Opening Doors grants to qualified applicants as soon as possible. Doing so will provide school districts with locally-developed tools that will foster diversity, which will benefit all students and our society as a whole.
The State of Illinois responded last week to the Chicago Board of Education's funding lawsuit, asking the state court to dismiss the Board's claims that the state's education budget maintains a "separate and unequal" system for funding school districts and pension obligations. In its dismissal motion, the State argued that the Chicago Public Schools (CPS) will not suffer irreparable injury from its budget shortfall after Gov. Bruce Rauner vetoed a bill that would have sent $215 million to CPS to cover its pension obligations that will come due this summer. The Governor reportedly rejected the bill because it did not include pension reforms that the Governor wanted. The State further argued in its dismissal motion that the state's civil rights law creates no grounds either to force the governor to sign a funding bill or to provide money that is not previously established by law. The lawsuit was filed by the Board in February on behalf of five African-American and Hispanic families (whose children attended CPS schools), alleging that the Illinois's failure to allocate money equitably to meet CPS's budget violated the state civil rights of minority children in its district (about 90% of CPS' students are minority).The state’s civil rights law provides that “if the burdens of a state policy fall disproportionately on members of particular racial groups, the state must advance a weighty justification.” As grounds, the Board alleged that the legislature allocated about 15% of the state education budget to Chicago, but the city enrolled nearly 20% of Illinois' schoolchildren in 2016. The Board's suit also challenged the state has created an unequal teacher pension system that requires Chicago to spend much more per student on teacher pensions than schools in the rest of the state. That disparity in teacher pension contributions meant that CPS had $9,779 to spend per student, whereas the average non-CPS state school district had $12,174 to spend per student. Without the $215 million, the Chicago Board will cut schools' budgets mid-year and has told the court that it may have to end the school year three weeks early and cancel summer school. (To avoid such measures, Gov. Rauner has proposed dealing with CPS' budget and its pension obligations in separate legislation.) The lawsuit is before the Circuit Court of Cook County Chancery Division.
Wednesday, March 29, 2017
Difference creates challenges. Treating people who are different the same can be unfair; treating people who are similar differently can be unfair. The trick is determining what fairness requires under given conditions.
Special education inevitably demands this determination. Under federal law, the Individuals with Disabilities Education Act (20 U.S.C. §1400 et seq.) or “IDEA,” schools that receive federal support must provide a “free appropriate public education” or “FAPE” to students with disabilities. But just what is “appropriate” – how much a school must do to support a disabled student – has been a subject of controversy for many years.
Last week the Supreme Court waded into this area for the first time in decades in Endrew F. v. Douglas County School Dist. RE-1. The unanimous opinion was cogently analyzed in a prior post produced virtually instantly by Professor Mark C. Weber at DePaul University College of Law; this follow-up reflects on the implications of the Court’s words.
The justices decided explicitly for the first time that students whom IDEA aims to assist must receive a benefit that is more than “minimal.” The Court held that the lower courts, which had ruled that the public school defendants had provided an adequate education to the plaintiff because he had made “some progress” – i.e., any progress – had used the wrong standard to reach their conclusion.
The correct standard, according to the Court, is this: the school must provide an individualized education plan that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
Perhaps because Endrew F. could have come out very differently, Education Week reported that advocates for children with disabilities viewed the Court’s opinion as a “clear win.” The Court could have espoused the view that any amount of progress, however small, constituted progress and thus would satisfy the FAPE mandate. Certainly that is the direction the majority opinion in Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), the Court’s last tussle with IDEA, pointed.
In Rowley, a majority of the justices rejected the notion that IDEA required states to “maximize the potential of handicapped children ‘commensurate with the opportunity provided to other children.’” 458 U.S. 176 at 189-90 (internal citations omitted). The opinion, authored by Justice Rehnquist, instructed that schools had to provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”
From this language, it is easy to see how the lower court judges who heard Endrew F.’s case might have thought that any benefit at all satisfied the Rowley standard.
While the Court’s opinion in Endrew F. provides clarification and reassures that a standard higher than de minimis does apply, it does a bit more besides. Most importantly, the justices appear to have accepted Rowley’s limited aspiration; the Court has accepted that requiring perfect equality of opportunity is too much to ask.
There are practical reasons not to require schools to take whatever steps, provide whatever support, is necessary to give a child with a disability or multiple disabilities the same opportunities as a student who lacks them. The Court could have alluded to this practical constraint, instead of suggesting that the (unattainable) target sought through the law should be lowered, and then struggled with the question of how close schools must get to the ideal. The justices did not take this path.
The path that they did choose looks like it may give schools more say in determining when a student receives an adequate education. Why? Because officials at the school are best placed, the Court instructs, to assess what progress is appropriate in light of a child’s circumstances.
The Court, in the penultimate paragraph of its decision, speaks of “deference... based on the application of expertise and the exercise of judgment by school authorities,” and suggests that a “reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions.”
If lower courts hearing parents’ challenges to schools’ proposed individualized education plans do show schools greater deference, it seems likely that those challenges will become more difficult and more expensive. Children whose parents are less sophisticated, less well-off, and/or have less access to expertise may be correspondingly less able to mount a successful challenge.
However, the efforts of relatively empowered parents will have “ripple effects” that improve the educational experiences of other students, too, as Professor Weber has pointed out. Educational opportunity is not necessarily in limited supply, whatever the Court’s limited conception of “adequacy.”
Now we will see what the lower courts do with Endrew F. on remand.
Tuesday, March 28, 2017
In a major victory for parents, a New York appeals court has ordered the State Division of Budget to immediately release over $37 million in improvement grants to 20 needy schools across the state. A year ago, the grants were frozen by Governor Andrew Cuomo's Budget Director, Robert Mujica, triggering a lawsuit by parents of students in three of the affected schools.
"I am most happy for the children who would benefit from these funds as it shows them that there are people other than their parents who care about their future," said Curtis Witters, a parent plaintiff in the lawsuit. "I hope the schools will utilize these funds to help our students be as successful and progressive as possible."
Education Law Center represents the parents of students in the three schools: Hackett Middle School in Albany, Roosevelt High School in Yonkers, and JHS 80 Moshulo Parkway Middle School in the Bronx.
In an order issued today, the appeals court "vacated," or lifted, a "stay" of a December 28, 2016, decision by Judge Kimberly O'Connor in Albany finding Mr. Mujica had acted illegally in withholding the grants. Judge O'Connor directed the Budget Director to immediately release the impounded grant funds.
An appeal of by the Cuomo Administration triggered an automatic stay of Judge O'Connor's ruling. The parents then asked the appeals court to lift the stay, citing the urgent need to release the funds so needed programs could be implemented in the upcoming (2017-18) school year. Today's order clears the way for the funds to be released so the schools can begin their planning process.
"We are pleased the Appellate Division ordered the immediate release of the grant funds," said Wendy Lecker, ELC Senior Attorney. "These grants were frozen illegally, forcing the schools to discontinue vital academic and support services in the current school year. These schools can now plan to restore these programs to improve performance and help their students succeed."
"Mr. Mujica had no legal basis for impounding these grants in the first place," said ELC Executive Director David Sciarra. "It's tragic that the Cuomo Administration would waste time and money to defend their illegal action in court, rather than working cooperatively with local educators to improve outcomes for vulnerable children."
In addition to vacating the stay, the appeals court also granted the parents' motion to expedite consideration of the merits of the appeal, placing it on the court's May 2017 calendar.
For more information about Cortes v. Mujica, visit these pages on the Education Law Center website.
Washington State's University Place School District settled a lawsuit filed by three black students who alleged racial discrimination by teachers at Curtis High School, reportedly for $450,000. The student-plaintiffs in the suit alleged in 2015 that they were subjected to racial name-calling by students and discriminatory grading practices and other forms of harassment by teachers and staff. In one instance, one of the students was called racial epithets in the school's hallway, and when he reported the abuse to teachers, he was told that it "would make him stronger." Another student alleged in the lawsuit that when a teacher gave her home address (during a sign language lesson) and students joked that they might egg the teacher's house, the teacher replied that “no one would do that, except for [the plaintiff], because he’s black.” according to court documents. The district denied the allegations in the suit and pointed out that the teacher who made the remark about the black student has resigned from the school. Tacoma's News Tribune reports that just under 10 percent of Curtis High's 1,400 students are black.
Monday, March 27, 2017
Recently posted articles on SSRN this month address First Amendment concerns in crafting anti-bullying laws and surveys anti-gay anti-gay provisions exist in the curriculum laws of twenty states, and in several provisions of a federal law that governs the distribution of $75 million in annual funding for abstinence education programs. Links to the articles and descriptions are below:
Emily Suski (South Carolina), A First Amendment Deference Approach to Reforming Anti-Bullying Laws, Louisiana Law Review (2017):
This Article explores the problems associated with school exclusion as a response to bullying in light of the complicated nature of the problem and the attendant First Amendment concerns. It argues in favor of drawing on First Amendment jurisprudence, particularly by deconstructing rationales for the deference afforded schools to suppress student speech, to develop better, more comprehensive legal approaches to combatting bullying that also address those First Amendment concerns. In doing so, it also seeks to fill a gap in the literature on bullying by exploring the complicated nature of the problem, the interventions called for in response, [and] by examining the rationales for public school deference to suppress student speech.
Clifford Roski (Utah), Anti-Gay Curriculum Laws, Columbia Law Review (2017):
Now that anti-gay sodomy and marriage laws have been declared unconstitutional, anti-gay curriculum laws look anachronistic—remnants of a bygone era in which official discrimination against LGBT people was both lawful and rampant. Yet these laws remain on the books, they are still being enforced, and no court has had an opportunity to determine whether they are constitutional. This article develops the framework for a nationwide campaign to invalidate them. This article [also] introduces a new term to clear up the confusion surrounding this subject: anti-gay curriculum laws. In particular, this article identifies two types of anti-gay curriculum laws that scholars and advocates have overlooked: “promo hetero” laws and “abstinence until marriage” laws. The article concludes by explaining why LGBT advocates have waited until now to launch a campaign against anti-gay curriculum laws—and why they should not wait any longer.
Friday, March 24, 2017
While school suspension rates have fallen sharply in recent years in California, the racially disproportionate impact of this form of punishment has persisted. That is the headline conclusion of the latest report on education in the United States from the Brookings Institution’s Brown Center on Education Policy. The important and difficult questions are why and what can be done.
The study, one chapter in the final volume of a multiyear series, examined possible relationships between rates of suspension and (1) size of the school, (2) poverty at the school, and (3) share of the student body that is African American, among other variables. Overall, the rate of suspensions of black students is higher at larger schools than at smaller schools; higher at schools attended by more students receiving free and reduced price meals, and higher the larger the share of the student body that is black.
California presents a useful case study because state lawmakers have acted to reduce use of suspension, defined for purposes of the study as suspension off-campus. In 2014 the legislature passed Assembly Bill No. 420 (“AB 420”) which prohibited schools from expelling students because they engaged in acts of “willful defiance.” That catchall term was the most common offense leading to suspension, especially for minority students.
Rates of suspension were already declining when AB 420 was enacted and such decreases have continued. Between 2013 and 2015, suspension rates fell by nearly one-third for all students and for each major racial/ethnic group (the categories are white, black, Hispanic and Asian).
But the rate for black students remains more than triple that of Hispanic students, who constitute the group suspended at the next-highest rate. In 2015, for every 1,000 black students in California schools, black students received 178 out-of-school suspensions, while the comparable number for Hispanic students was 52; for white students, 44; and for Asian students, 12.
The report breaks schools into two groups, those with high rates of suspension of African American students, and those with low rates of suspension of African American students, and then examines characteristics of the schools to identify correlates of suspension rates. In 2015, there were 1,930 schools with high suspension rates, defined as a rate of 5 percent or more, and there were 3,546 schools with low suspension rates, defined as a rate below 5 percent.
Although there were fewer schools with high rates, those schools imposed 35,424 suspensions, compared to 139 at the low rate schools. (I am leaving out, although the report discusses them, the schools that did not report precise numbers.)
Then the water gets murky because it is difficult to determine the dynamics at work. Although larger schools tended to have higher suspension rates, larger schools also tended to be middle and high school, and institutions serving adolescents are “prone to more suspensions” relative to schools serving younger children.
Although higher poverty schools tend to have higher rates of suspension, that only holds until 89 percent or more of students qualify for free and reduced priced meals. The report concludes that poverty is a weaker correlate than school size.
Finally, suspension rates are higher at schools where black students form a greater share of the student body – which, in precise terms, means schools where black students are more than 16 percent of the total student population. This suggests that racial isolation itself is not driving the rate of suspension, because 16 percent does not seem like such a high share of the student population.
Drawing firm conclusions about causation is not easy and the report is cautious. But it does appear that smaller schools and schools serving younger students manage discipline differently from larger schools serving older students, that poverty plays a role in the frequency of suspension, and not surprisingly, that race continues to be powerfully salient.
Thursday, March 23, 2017
A new study by Chris Candelaria and Ken Shores adds another major finding in the debate over school funding. In their paper, Court-Ordered Finance Reforms in the Adequacy Era: Heterogeneous Causal Effects and Sensitivity, they find that school funding remedies have a significant impact on graduation rates in high poverty districts. In those districts, a ten-percent increase in per-pupil funding "causes a 5.06 percentage point increase in graduation rates." As I calculate it, that means that if a southeastern state spending about $7,000 per-pupil in a high poverty district bumped funding to $7,700, it would likely bump its graduation rate from 65% to 70%. In a high school with 1200 students, that means it would graduate 210 students each year rather than 195.
This finding comes on top of Kirabo Jackson and his colleagues' recent finding that a twenty percent increase in per pupil funding, if maintained over the course of students' education careers, results in low income students completing .9 more years of education. This increased learning wipes out two-thirds of the gap in outcomes between low- and middle-income students.
Not too shabby for a little extra money. Incredibly impressive when compared to what data tells us about vouchers and the average charter school.
These studies should give Congress serious pause when they look over Trump's proposed budget, which would leave funding for low-income students flat, save the $1 billion aimed at prompting school choice, charters, and vouchers.
These studies should also give the public heartburn in the 30 states that, in real dollar terms, continue to fund education at a lower level today than they did before the recession. As I detail here, many states issued cuts of 10 to 20 percent in education funding during the recession and have still yet to fully replace the funds. The above studies would strongly suggest these states are driving down student achievement and graduation rates; it will just take a few years for the data to bear it out.
Supreme Court Requires Opportunity for Special Education Students to Make Progress, Not Just Receive Minimal Benefits by Mark Weber
On March 22, the Supreme Court decided Endrew F. v. Douglas County School District RE-1. The Court overturned a lower court decision that had applied a “merely more than de minimis” test to the duty to provide appropriate education to children with disabilities in public schools. The case involved a child with autism whose parents placed him in a private school because they were dissatisfied with the progress he was making under his fourth grade individualized education program (IEP) and thought he was unlikely to achieve much more under a similar IEP proposed for fifth grade. He continued to have severe behavior problems in his public school setting, including screaming in class, climbing over furniture and classmates, and running away, and manifested extreme fear of commonplace aspects of his environment. His parents believed his academic progress had stalled. In the private school, he made rapid progress with a behavioral intervention plan, and the improved behavior allowed him to make academic gains. His parents sought tuition reimbursement, as permitted under the Individuals with Disabilities Education Act (IDEA), which requires that states receiving federal funds for special education guarantee each child with a disability a free, appropriate public education. The administrative law judge, the district court, and the Tenth Circuit all ruled against the parents. The Tenth Circuit interpreted the Supreme Court’s sole case on the appropriate education standard, Board of Education v. Rowley, 458 U.S. 176 (1982), to require simply that the child be offered some educational benefit, interpreted as merely more than de minimis.
The Supreme Court vacated and remanded. In a unanimous opinion by Chief Justice Roberts, the Court read Rowley as steering a middle course between no enforceable appropriate education standard at all and the standard endorsed by the lower courts in that case, an education affording the child an opportunity to achieve her full potential commensurate with the opportunity provided children without disabilities. The Endrew Court stressed Rowley’s language requiring a substantively adequate education as well its proviso that its analysis was limited to the facts of that case and did not establish a universal test. Endrew said that Rowley pointed to a rule that the school has to offer an IEP reasonably calculated to enable the child to make progress in light of the child’s circumstances. Though this focuses on the reasonable, not the ideal, the standard keys into student progress; moreover, the program must be individualized to afford progress given the child’s unique needs. The Court reaffirmed Rowley's conclusion that for a child being educated in the general education classroom, passing marks and advancement from grade to grade through the general curriculum will ordinarily satisfy the IDEA standard (though the Court cautioned in a footnote that “This guidance should not be interpreted as an inflexible rule,” to be applied automatically). But it rejected the standard of the Tenth Circuit and courts like it that for children not in the regular classroom, offering merely de minimis progress is enough.
The Court rejected the parents’ position that in light of amendments to IDEA since Rowley, children are entitled to an education that affords opportunities to attain self-sufficiency and contribute to society substantially equal to opportunities afforded children without disabilities. The Court did not see the amendments to the Act over the years as adopting the proportional maximization standard that Rowley rejected. The Court also cited a need for deference to school authorities’ educational judgment. Nevertheless, parents, their advocates, and many other observers are likely to be pleased that the Court has rejected the low standard applied by the Tenth Circuit and many, many other courts and clarified that the law imposes a more demanding standard oriented towards the child’s progress and the child’s individual needs.
The decision is found at https://www.supremecourt.gov/opinions/16pdf/15-827_0pm1.pdf