Monday, September 12, 2016
Second Circuit Dismisses Student-Plaintiffs' Suit That Claimed Taxpayer Money Was Diverted To Fund Private Religious Schools
A divided Second Circuit held today that student-plaintiffs in the East Ramapo (N.Y.) School District lacked standing to challenge the alleged diversion of public funds to religious institutions in their district. In Montesa, et al. v. Schwartz, et al., taxpayer and student plaintiffs alleged that school board members of the East Ramapo School District had an under the table agreement to allow Orthodox/Hasidic Jewish parents to invoke the Individuals with Disabilities Education Act to have their children placed in largely Hasidic schools. The parents did this, the plaintiffs claimed, by simply writing a letter to the school board disagreeing with the placement of their children in the public schools. School board members would then pass a private placement resolution in lieu of an Impartial Hearing under the IDEA and reimburse the parents for the private religious school tuition. One problem with this, the plaintiffs argued, was that the school district would not be entitled to federal or state reimbursement for these students because the settlements occurred before an Impartial Hearing under the IDEA. The plaintiffs alleged that the school board defendants thus diverted funds away from the district's public schools and into Hasidic religious institutions. In today's decision, the Second Circuit held that the student‐plaintiffs lacked standing to assert an Establishment Clause claim because they were only indirectly affected by the conduct alleged to violate the Establishment Clause. The circuit court, which upheld the district court ruling, found that the students were not directly exposed "to the unconstitutional establishment of religion.” A taxpayer suit on similar grounds is proceeding in federal district court. The opinion is here.
A School District on the Brink of Collapse: Educational Opportunity at the Intersection of Race, Poverty, and Geography
For the past few years, Pennsylvania's education system has stood at the brink of disaster in some shape, form, or fashion. First came the state's decision to retreat from its new school funding formula and impose new cuts. Then came stories of completely upside down budgets, with public schools bleeding money to brick and mortar charter schools. Those were followed with rampant corruption and a federal indictment of a virtual charter school operator. Mixed in was the story of a Philadelphia girl who fell ill and died on a day when no nurse was present at school due to funding cuts. This brought national attention on the state's policies. This past school year did not look much better. It started with no state education budget. As late as March, the state was still flirting with finishing the school year in the same position--with no school budget. Along the way, there were stories of unpaid teachers, shuttered pre-kindergarten programs, extended winter breaks to save money, and the potential collapse of entire school districts.
The Erie School District was one of those districts pushed to the brink. Its superintendent indicated that the small district might be forced to dissolve itself and allow its students to be subsumed by the much larger neighboring suburban districts if the state did not pass a budget and adopt a more equitable funding formula. The state passed a budget and tinkered with the funding formula, but neither was substantial enough to change the underlying reality in Erie. According to NPR, it still is far from having the resources it needs and is considering dissolution:
Erie's schools have been pushed to the brink after six years of deep budget cuts, and he believes the children in the city's district — which predominantly serves students of color — are being systematically shortchanged.
That's in part because urban school districts in Pennsylvania face a particularly brutal logic.
They serve the poorest, most needy students. Yet, when it comes to state funding per pupil, most of them don't make the top of the list.
Even though Erie is one of the most impoverished districts in the state, and has one of the highest percentages of English language learners, the district currently receives less per-pupil funding from the state than hundreds of other districts.
Excluding pension costs, per-pupil spending in Erie is less than it was in 2008-09.
. . . .
The issue in Erie is even more complicated because of Pennsylvania's education funding policies. For most of the past 25 years, the state has distributed money without a rational, student-based formula.
So although Erie is one of the state's most challenged districts, the state sends more money per-pupil from its main pot of cash to most other districts in the county — including wealthier ones, with less pressing needs, that already have an easier time raising local funds.
"The differences between the resources we have in the county compared to in here are just shocking," said Brian Polito, chief financial officer for Erie Public Schools."
Polito used to have a similar job in North East, a rural district in Erie County. Drawing a comparison, he says last year Erie spent $6,000 dollars on its 18 libraries.
"In the school district that I came from, we had three libraries and our budget for library resources was almost $40,000."
It's examples like these that has Millcreek parent Genene Mattern completely supporting the stand that superintendent Jay Badams has taken on closing the city's high schools.
"People need to get mad. People need to get loud, because the more you just sit and let it happen, I think the more they figure, 'well, they're okay with that,'" she says.
The Erie district did receive a modicum of relief in the state budget that recently passed, including a $3.4 million boost in basic education funds, and a one-time $4 million dollar emergency supplement.
But the systemic issues will persist, and Erie's finances are slated to be in the same straits by the end of the school year.
Talk of dissolving Erie's district, however, is causing a lot of uneasiness in surrounding districts. They are predominantly middle-income and white, while Erie is predominantly poor and minority. Some of the concerns are more explicitly related to race, while some others hearken back to the facially neutral but coded language that opposed busing during desegregation in the south. The problem, they would say, is not race but the difficulties children will face when they attend something other than a neighborhood school. NPR also asks: "Would Erie's crisis even be happening if it was a majority white district?" This question, however, may be best directed at state policy than just local politics.
The unfortunate situation in which Erie's school children find themselves is the sad story of race, poverty, and geography in American schools. Geography is highly determinate of educational opportunity and probably even more so in most northern locales, where school districts are much smaller. The smaller we draw district lines, the higher the capacity to wall-in or wall-out particular neighborhoods. As a practical matter, districts become far more homogeneous than an overall county's or region's demographic population. In other words, small districts increase racial and socio-economic isolation. When this isolation is coupled with state policy that largely bases education funding on local property taxes, it produces highly unequal resources between districts. In other words, the districts become segregated and unequal. When this occurs, state level funding solutions become politically more difficult. The education world has been divided by race, class, and resources and there is little incentive for the "haves" to agree to plans that would send more resources to the "have-nots." In other words, the suburb votes are stacked against urban school districts.
The only apparent solution for districts like Erie is to cut through the structural morass of inequality and blow up the system--to, in effect, say we reject district lines, we reject inequitable funding systems, we reject a system that leaves inner city children to fend for themselves. We give up, and the state and its suburban school districts must now find a way to integrate us into its flawed system. No wonder those who control the levers of power are so upset in Erie. They should be upset in Harrisburg too.
Friday, September 9, 2016
In keeping with Derek's post yesterday on the ED's guidance to reduce violent interactions between students and school resource officers, the New York Times' annual education issue has an article by Susan Dominus, An Effective but Exhausting Alternative to High-School Suspensions, focusing on a school that is trying to implement a restorative-practices model of school discipline. The article describes the efforts in Leadership and Public Service High School in Manhattan’s Financial District to reduce its student suspensions (230 in 2013 and in 140 in 2014). Leadership's principal and dean recruited staff who were trained in restorative justice practices and coached teachers on how to use non-punitive language with students, among other efforts. The article is online here.
Thursday, September 8, 2016
U.S. Department of Education Takes Step to Limit Violent Interactions between Resource Officers and Students
As discussed here and here, this past year has brought too many stores of school resource officers (SRO) acting with excessive levels of force against students. This morning, the U.S. Department of Education has taken an official step in the attempt to quell these incidents. The Department released set of guidelines for how schools should hire and use school resource officers. The Department is calling it a rubic that
includes five common-sense action steps that can help ensure that SROs are incorporated responsibly into school learning environments. These action steps are:
1. Create sustainable partnerships and formalize [Memoranda of Understandings (MOUs)] among school districts, local law enforcement agencies, juvenile justice entities, and civil rights and community stakeholders.
2. Ensure that MOUs meet constitutional and statutory civil rights requirements.
3. Recruit and hire effective SROs and school personnel.
4. Keep your SROs and school personnel well trained.
5. Continually evaluate SROs and school personnel, and recognize good performance.
Get the full guidance document and its detailed explanations here.
Trial Court Declares Connecticut's School Finance System Unconstitutional; Next Question Is Whether Supreme Court Will Agree
A Connecticut trial court has struck down the state's education system as unconstitutional and ordered the state to fix it within six months. The judge announced his opinion from the bench. According to local reports, Judge Thomas Moukawsher indicated that "Beyond a reasonable doubt, Connecticut is defaulting on its constitutional duty to provide adequate public school opportunities because it has no rational, substantial and verifiable plan to distribute money for education aid and school construction." Although the state Attorney General's Office gave no indications as to its next step, one has to guess that it will appeal. It is before state supreme courts that school finance litigation has gotten tricky over the past several years. Trial courts in Texas, North Carolina, and Colorado, to name just a few, have ruled in favor of plaintiffs based on a strong record of inequality and inadequacy. State supreme courts, however, have been more reluctant to uphold those decisions. Even when a supreme court has agreed that the state has failed in its constitutional duties, some have questioned the propriety of the remedy ordered by the trial court, reasoning that the nature of the remedy lies in the discretion of the state. So in North Carolina, the supreme court struck down the trial court's order for the state to expand pre-kindergarten opportunities, even though the state was clearly in violation of the constitution and had yet to devise an effective remedy.
On one hand, the trial court in Connecticut is pushing hard on the remedy by giving the state only six months to come up with a plan, which puts the opinion at risk of being perceived too aggressive on appeal. On the other hand, the court did not specify what that remedy should be. Assuming the trial court is correct on the underlying facts, this could be the way to thread the needle between asking for too much from the state and not asking for anything. This offers the trial court's opinion a better odds of being upheld on appeal, while also keeping the pressure on the state. Unfortunately, it tells us little about whether the state will do anything. Washington's Supreme Court has taken analogous action in recent years and largely been ignored by the state legislature. For more on the recent challenges of winning and defending school finance remedies, see here.
Wednesday, September 7, 2016
Third Circuit Affirms Denial Of Qualified Immunity For Teacher Who Allowed Kindergartner To Be Taken From Class By Unauthorized Adult
The Third Circuit has affirmed a district court’s denial of qualified immunity for a schoolteacher who allowed a kindergartner to leave his class with an adult who failed to identify herself and who later sexually abused the student. In L.R. v. Philadelphia School District, No. 14-4640 (3rd Cir. Sept. 7, 2016), a teacher in the Philadelphia School District allowed a kindergarten student (called “Jane” in the opinion) to leave his classroom with an adult who failed to identify herself. The adult sexually assaulted the child later that day. In the early hours of the next morning, a sanitation worker found the child in a playground after hearing her cries. The child’s parent sued the teacher, who claimed qualified immunity. The Third Circuit acknowledged that teachers are often shielded by the doctrine of qualified immunity, but that this case was different because state action created the danger to the plaintiff. First, the court applied a state-created danger exception to the general rule that states have no duty under the due process clause to protect its citizens from private harm. The court noted that this was not simply a case of the school official’s failure to intervene to prevent an unauthorized person from removing a child from school. It was instead a school official allowing a stranger to remove the child from a safe place—the kindergarten class—to an unsafe one:
The setting here is a typical kindergarten classroom. Children in this setting are closely supervised by their teacher. Their freedom of movement is restricted. Indeed, they are not likely to use the bathroom without permission, much less wander unattended from the classroom. In the classroom, the teacher acts as the gatekeeper for very young children who are unable to make reasoned decisions about when and with whom to leave the classroom. Viewed in this light, Jane was safe in her classroom unless and until her teacher, Littlejohn, permitted her to leave.
The court also found that “the risk of harm in releasing a five-year-old child to an unidentified, unverified adult is “so obvious” as to rise to the level of deliberate indifference,” the appropriate standard when an official is not under intense time pressure to make a decision with limited facts. In this case, the teacher asked the adult for identification and documentation that she was authorized to remove Jane, but nevertheless allowed Jane to be taken without the requested verification. The circuit court then turned to whether Jane’s right to be free from “unjustified intrusions on personal security” was clearly established at the time of the teacher’s actions. The court found that sufficiently analogous cases should have placed school officials on notice that it was unlawful to take a helpless child out of a safe environment and expose her to obvious danger by allowing her to go with an unknown person. The case is here.
A group of public school parents has filed a lawsuit against the New York Education Department and the Budget Division. The challenge relates to the loss of school improvement funds. Each year the state, per federal law, is required to identify schools in need of improvement and those that persistently fail over the course of years get access to supplemental funds for two years. The funds are intended to help those schools improve.
The irony, however, is that nine schools were put on the persistently failing list and received funds for one year and expected to receive them again the second year. But when the New York Education Department updated its list of failing schools this year, nine schools that were on the list last year were not on it any longer. As a result, they lost their supplemental funding. In other words, they improved enough or the money worked well enough that the state terminated the second year of funding.
According to this New York Times story, the state is sympathetic to these schools' plight, but the parties cannot come to an agreement as to how to fix the problem--hence the lawsuit. The plaintiffs are well represented by the Education Law Center, so this is certainly a case to watch.
On another note, this unfortunate story reminds me of some of the past perversities of federal desegregation funding. As long as school remained segregated and under court order to continue efforts to eliminate the vestiges of segregation, it remained eligible to receive federal desegregation funds. But once a district actually integrated or was deemed "unitary" by a court, it lost its funding. This lead to a number of ironic desegregation cases, whereby school districts in the later stages of desegregation would side with plaintiffs and argue that they had not eliminated the vestiges of discrimination. As I discuss here, Title I of the Elementary and Secondary Education Act, to this day, also includes some perverse incentives. If a state undertook interdistrict desegregation to deconcentrate student poverty, it might very well end up receiving a smaller Title I grant from the federal government.
Tuesday, September 6, 2016
William Mathis and Tina Trujillo new edited volume, Learning from the Federal Market-Based Reforms, is now available. The press release offers this summary:
With chapters written by a who’s who of the educational research world—a collection of authors that Larry Cuban describes as “a cast of all-star scholars” and Gloria Ladson-Billings calls “some of the nation’s best minds”—the National Education Policy Center released its latest book: “Learning from the Federal Market-Based Reforms: Lessons for ESSA.” Editors William Mathis and Tina Trujillo brought these researchers together to create a critique of recent reforms followed by a series of proven, research-based reform strategies.
With states now finalizing their improvement plans for the new federal “Every Student Succeeds Act” (ESSA), the book provides a timely guide for policymakers and practitioners.
Pointing to the need to move beyond the discredited test-based, discipline-and-punish mentality, David Kirp says the volume makes a clear and convincing case for a genuine reform agenda. “It’s a must-read for anyone concerned about the quality of American education.”
Pedro Noguera adds, “This book points to what we must do differently if we are to succeed in providing all children an education that will prepare them for life in the 21st Century.”
Throughout the book, scholars such as David Berliner, Gary Orfield, Mike Rose, Janelle Scott, Richard Rothstein, and Angela Valenzuela remind us that reform requires us to address the root causes of inequities within schools and beyond the school walls, closing opportunity gaps wherever they arise. We must address deprivation, poverty, racism and the inadequate and unequal distribution of resources.
Among the federally promoted reforms examined in the book are school choice, testing, teacher evaluation and school reconstitution. Other chapters look at the research around class size, early education, adequate and equitable funding, community involvement, and detracking.
In its foreword, Jeannie Oakes praises the book as a tool for closing the gap between research knowledge and education policy decisions: “We must marry the best empirical evidence with efforts to shift cultural norms and increase the political power of those who are seen as the beneficiaries of research-based reforms. We must convince our communities, large and small, of the relationship between having better facts and being better people. … [W]e have this book to help.”
The book is available from Information Age Publishing here and from major booksellers. EARLY ORDER SAVINGS – You can purchase the book on the IAP website at a substantially reduced price of $30 per paperback or $70 per hardcover plus s/h. The code to use at checkout is LFMBR30350.
The book will also be available as an eBook within the next 90 days from Google, Apple, and over 25 other online outlets.
Friday, September 2, 2016
School Resource Officers Who Were Fired for Using Excessive Force on Student Are Now Suing District in Response, Claiming Discrimination
A lawsuit between school resource officers and the Shelby County School District in Memphis is going to trial. The resource officers had a physical altercation with and arrest of an African American student, after which they were terminated. The officers, who are white, allege that the firing was race-based. The district claims the officers used excessive force. The officers claim that the student initially acted "in a belligerent manner using vile language" and they then restrained her. The school then suspended her, after which the officers allege she became "became violent."
A school video, however, would seem to suggest nothing of the sort. It appears the student was standing in place, eating something, or, at least, keeping her body to herself in a calm manner. An officer then reaches out toward her hand and face to take her hand or the food. She then moves her body and hand away from him and everything goes downhill. The officer appears to strike her in the face and another eventually takes her to the ground. The full video can be found here. The officers claim that the principal saw this altercation and immediately responded that he would have them fired because he was tired of "white officers beating up on my black babies."
Further complicating the case is the additional layer of school consolidation that had recently occurred in the district. Memphis City Schools had merged with Shelby County, two demographic different school districts. As Daniel Kiel has explained (here and here), the racial politics of the merger ran deep. The extent to which this colors the issues in the case is unclear, but it will certainly draw attention to the case.
On the other hand, school merger politics and the race of the officers have little to do with the question of whether the officers acted reasonably or should have had action taken against them. This case reminds me a lot of the one that occurred in South Carolina last fall and captivated the nation. A resource officer at Spring Valley High School in Columbia, South Carolina, pulled a female student from her desk by her neck, threw her to the floor, and then dragged her across the floor to another part of the room. The incident was caught on video and went viral. Both the Columbia and Memphis case reveal two disturbing things: 1) officers being called on to deal with basic discipline in the school and 2) officers using significant levels of force on students whom themselves appear to pose absolutely no danger.
In my forthcoming book Ending Zero Tolerance, I explain how incidents like these harm not only the punished or arrested students, but all of those around them. The upside of having officers in place to undertake these actions is simply to small to outweigh the burden.
Wednesday, August 31, 2016
A federal district court in Pennsylvania has ordered the School District of Lancaster, PA, to allow older refugee students to attend their local high school. The plaintiffs are six students, who are between 17-21 and who are refugees from Somalia, Sudan, Democratic Republic of Congo, and Burma. They sued the Lancaster district this summer, alleging that the district illegally refused to enroll them at the public McCaskey High School or diverted them to a privately-run alternative school, Phoenix Academy. According to the lawsuit, district employees told the students that they were too old to enroll (not true) or did not have sufficient English proficiency (despite McCaskey having a an international program dedicated to serving transitioning English language learners.) Some of the students' younger siblings were admitted to the district's schools. At Phoenix Academy, the students alleged, they were subject to frequent pat-down searches, restrictions on their dress and activities, and bullying from other students. Moreover, the students alleged that the pace of Phoenix's instruction, which was designed to allow disruptive or older students to earn accelerated credits so that they could graduate faster, was inappropriate for students who had recently arrived in the United States. Phoenix offers no extra curricular programs. While the federal court was taking testimony in the case, an attorney for the Lancaster school district commented that "[i]f [the plaintiffs] don't like the security measures [at Phoenix Academy] then they definitely won't like them at McCaskey, where they have two guards with Tasers and yes, sometimes they have to use them." U.S. District Court Judge Edward G. Smith granted a preliminary injunction ordering the district to allow the students to attend McCaskey, stating that the plaintiffs presented "straightforward legal issues that were ultimately easy to resolve. ... [T]he law is clear: eligible students must be timely enrolled, and efforts to overcome language barriers must be sound and effective." The district is appealing the order.
Earlier this spring, Detroit public school teachers made national news by coordinating what was called a "sick-out." Around 1500 teachers called in sick, which forced 94 of 97 Detroit schools to close for a day. The sick-out was meant as a protest of the financial troubles the district was facing and the prospect that teachers might not be paid in July. Less news-catching was a lawsuit by the District against the teachers who apparently helped orchestrate the sick-out. The District argued that the sick-out was, in effect, a strike, which is prohibited by the Michigan Public Employment Relations Act (PERA). A trial court in Michigan has now ruled against the District, reasoning that the teachers were exercising their free speech rights and that PERA cannot reach their behavior without creating First Amendment conflicts. Because it is a state trial court ruling, I have yet to get the opinion, but the Detroit Free Press offered this summary:
In her ruling, Stephens, a Michigan Court of Claims judge, said the district didn't prove that Conn and Conaway violated PERA.
"Here, the vast majority of the speech attributable to defendants concerns complaints to the state government to rectify educational, financial and structural problems in the Detroit Public School District, and not issues concerning the rights, privileges or conditions of their employment," she said.
"Any injunction based on defendants' exercise of their free speech right to petition their government would run afoul of First Amendment protections."
Stephens said that the district's argument that the defendants were precluded from even saying they approved of work stoppages "goes far beyond the scope of PERA and such an interpretation is offensive to fundamental rights of free speech."
The state picked up the district's legal costs, spending about $320,000, Michigan Department of Treasury spokeswoman Danelle Gittus said Aug. 10.
George Butler III, the main attorney for the school district, and district spokeswoman Chrystal Wilson could not immediately be reached for comment late today.
In the weeks after the lawsuit was filed, most of the 28 defendants, including the Detroit Federation of Teachers union, were dismissed by Stephens or withdrawn by the district, leaving only Conn and Conaway. The judge twice denied the district's request for temporary restraining orders.
Tuesday, August 30, 2016
Mark McAllister (Indiana Tech) has posted an article on SSRN exploring regulating student cell phone searches through an administrative warrant process. The abstract is below.
Rethinking Student Cell Phone Searches by Mark Chase McAllister (Penn State Law Review, 2016)
For K-12 students, this article advocates a middle-ground solution that accounts for the unique privacy interests that apply to all cell phones while preserving the need to control the K-12 learning environment without undue judicial supervision. This article thus proposes that K-12 schools adopt an internal system of checks and balances consisting of a higher-level, independent review of a school official’s desire to search a student cell phone, along with an administrative warrant the supervising official must sign before the search may be carried out.
After weighing the pros and cons of extending Riley to the schoolhouse gates, this article arrives at the simple conclusion that, despite its narrow holding, Riley’s sweeping pronouncements regarding the unique privacy concerns inherent in the modern cell phone demand a rethinking of the law governing student cell phone searches. Riley stated, for example, that the privacy protections owed modern cell phones are even greater than what we enjoy in our homes, the area that has traditionally received the greatest Fourth Amendment protection, thereby implying that cell phone searches, of any kind and in any place, are owed the greatest possible constitutional protection. In addition, although Riley involved searches of arrestees, who have traditionally enjoyed diminished privacy interests, the Court nevertheless found the privacy-related concerns in cell phones weighty enough to require a warrant, notwithstanding arrestees’ reduced expectations of privacy. This exact rationale can be applied to K-12 and college students, who, like arrestees, have also enjoyed reduced Fourth Amendment protections.
This article concludes by proposing heightened Fourth Amendment protections for both K-12 and college cell phone searches. First, this article argues that although college students enjoy reduced expectations of privacy in certain instances, particularly for administrative inspections where campus safety concerns predominate, the justifications for such rulings do not apply to a cell phone’s digital contents.
New Special Education Funding Settlement Highlights Troubling Differences between Federal and State Rights
The U.S. Department of Education and the South Carolina Department of Education have finally reached a settlement in regard to South Carolina’s failure to properly fund special education services. The U.S. Department of Education’s Office of Special Education and Rehabilitative Services found that that South Carolina was underfunding its special education programs to the tune of $51 million in 2010, with continuing shortfalls in subsequent years. The U.S. Department of Education emphasized that:
Under IDEA, a state must make available at least the same amount of financial support for special education and related services for children with disabilities each year as it did in the prior year. The consequence for failing to maintain financial support is a mandatory reduction in a future year’s IDEA allocation by the amount of the shortfall.
“This settlement is a victory for children with disabilities in South Carolina,” said Sue Swenson, Acting Assistant Secretary for the Office of Special Education and Rehabilitative Services. “Our Administration is committed to ensuring that schools have the resources they need to provide necessary supports and services to children with disabilities to ensure that they can leave school ready for college and career. We look forward to working with the South Carolina Department of Education to fully and effectively implement the terms of this agreement.”
Under the agreement, the U.S. Department will leave South Carolina's federal funding in place in exchange for South Carolina "appropriat[ing] additional state funds, above the amount required to maintain financial support under the IDEA, for special education and related services in the amount of $51,336,578." These funds are to be used over the next four years "to implement programs and initiatives focusing on increasing reading proficiency for children with disabilities." Get the full agreement here.
The settlement is a major victory for special education students in South Carolina, but it also begs questions in regard to South Carolina's overall education budget. Under the Elementary and Secondary Education Act, similar maintenance of effort standard apply to general education funding as well. If the state had failed in regarding to maintaining federal education funds, there is a strong chance it did so in regard to other education funds as well. Based on inflation adjusted calculations, South Carolina's education funding in 2014 was still 10 percent below 2008 levels. In other words, the cuts that were imposed during the recession had not been restored once the economy recovered. General maintenance of effort standards, however, are notoriously difficult to enforce and I do not expect forthcoming action on this front. And in fairness to South Carolina, it is not alone. More than half of the states fall into this category.
To put the matter in even more stark relief, the state supreme court declared the state's education funding system unconstitutional in 2014. Since then, however, the state has not taken any significant action to remedy various deficiencies outlined in the court's opinion. In other words, while the federal government has been able to prod the state into action for statutory violations, the court has been unable to do the same for constitutional violations. But again, South Carolina is not alone. A troubling trend has developed whereby states have flaunted their state constitutional obligations. This reality may signal the need to more seriously consider what role the federal government can and should play in ensuring funding equity and adequacy in the future. I hope to post a new paper on this topic in the next week or so.
Monday, August 29, 2016
Jason Nance's forthcoming article, Student Surveillance, Racial Inequalities, and Implicit Racial Bias, Emory Law Journal, is available here on ssrn. His abstract offers this summary:
In the wake of high-profile incidents of school violence, school officials have increased their reliance on a host of surveillance measures to maintain order and control in their schools. Paradoxically, such practices can foster hostile environments that may lead to even more disorder and dysfunction. These practices may also contribute to the so-called “school-to-prison pipeline” by pushing more students out of school and into the juvenile justice system. However, not all students experience the same level of surveillance. This Article presents data on school surveillance practices, including an original empirical analysis of restricted data recently released by the U.S. Department of Education after the shootings at Sandy Hook Elementary School. Paralleling other disturbing trends of inequality in our public school system, these results and other empirical analyses reveal that schools serving primarily students of color are more likely to rely on more intense surveillance measures than other schools. Further, the empirical evidence suggests that these racial disparities may not be justified by legitimate safety concerns. This Article then turns to a discussion of the role that implicit racial bias may have in school officials’ decisions to rely on intense surveillance methods. Finally, it proposes legislation and strategies that federal lawmakers, state lawmakers, and school officials should adopt to counteract the effect of implicit racial bias on school officials’ decisions to implement strict security measures (and other decisions school officials make). Implementing these recommendations will help create better learning environments that benefit students of all races.
In a Rare Case, School District Does Not Use Demographic Change As an Excuse to Give up on Integration
In 1970, the United States brought suit against the Tyler Independent School District in Texas. That lawsuit initiated what would become nearly a half-century desegregation case. Last week, both the United State and the school district agreed that the district had reached unitary status, meaning that it had eliminated the vestiges of discrimination to the extent practicable. The district court then entered an order closing the case.
For those that have read this blog before, you might expect a series of critiques to follow news that a court had relieved a district of its desegregation obligation, but based on the court's description of the facts, this one appears to be the real deal. The court explained that "the number and percentage of Hispanic students enrolled in TISD schools has risen dramatically since 1970, from 0.6% to 37.1% in the 2007-08 school year to 45.7% now." This is normally the type of fact that precedes the conclusion that demographic shifts have overwhelmed a district's desegregation efforts and, thus, it cannot be held accountable for current segregation patters. In fact, this was the exact line of reasoning in Freeman v. Pitts, in which the Court held that DeKalb County, Georgia, no longer needed to pursue integration in student assignments.
The district court in the instant case, however, did not have to go there because
[a] review of the parties’ statistical report, Joint Motion at 6-7, and the recent Compliance Report, reveals that there are few schools in any of the grade-level categories that reflect either a higher or lower percentage of student enrollment by race. None is significant when viewing the TISD enrollment statistics overall. Further, as the parties point out, of the eight categories of enrollment showing a somewhat higher or lower percentage compared to the averages for TISD overall, four of them reflect schools that are proceeding under one or the other of the Court’s two most recent attendance zone modifications approved in conjunction with the construction and opening of new or renovated schools. . . . These coincide with four of the five highest variations from the average, none of which is concerning.
. . .
Here, the enrollment statistics convincingly reveal that TISD has achieved the desegregation goal for student assignments in its schools at all levels. Further, having reviewed the statistical compilations from the last several years of TISD’s Compliance Reports, the Court finds that TISD has maintained this student assignment status and operated as a unitary system during that period.
First, assuming no egregious inequalities were papered over, credit is due the school district for taking steps to maintain integrated schools for an extended period of time, notwithstanding significant demographic changes in the district. Second, that this district had the capacity and commitment to do so begs the question of why the United States Supreme Court and lower courts have been so quick to absolve other districts of their obligations. As I have argued elsewhere, the mere instance of demographic shifts is entirely irrelevant to the question of whether a district has carried out its affirmative obligation under Green v. New Kent County to eliminate the vestiges of discrimination root and branch. The question of whether the district has discharged its duty should always precede the question of demographic shifts. Otherwise, a district acting in less than good faith could just stall in its desegregation efforts in hope that inevitable demographic shifts will eventually relieve it of its duty. Unfortunately, far too many districts seemed to adopt this route over the decades.
Third, demographic shifts raise causal questions, but demographic shifts are not dispositive on those questions. Demographic shifts might be a result of a district's student assignment policies themselves, might account for only a portion of segregation, might have produced segregation only because the district failed to act, or might have been the dominant cause of current segregation. Too often, however, courts have jumped to the last conclusion without giving any serious attention to the other possibilities. In effect, the occurrence of demographic shifts has acted as an affirmative defense for districts, placing the burden of proof on plaintiffs, which, of course, is counter to the doctrine articulated in Keyes v. New Kent County.
Fortunately, the Tyler Independent School District appears to have cut through all these legal questions and loopholes by simply doing the right thing.
Friday, August 26, 2016
EdBuild has released a report of what it calls the most segregated schools in the country. The goal of the study was "[t]o explore how school district borders isolate the neediest students [by] conducted[ing] an analysis of each of these boundaries across the country." It found that
A typical school district border in the United States separates a pair of districts whose student-age poverty rates differ by seven percentage points. The difference between the 50 most segregated neighbors ranges from 34 to 42 percentage points: an average that is more than five times the national mean. Among the 50 pairs, the wealthier school districts have a poverty rate of just 9 percent, while their neighbors average 46 percent— 400 percent higher. This means that wealthier peers enjoy a poverty rate that is less than half the national average; whereas their neighbors enroll over 150 percent more impoverished students than the average US district. The 50 higher-income areas are also far smaller enclaves of wealth– their schools serve 15,000 less students on average. Additionally, the average homes in the wealthier districts are worth $131,000 more than their neighbors’. Because local funds for education are tied to property wealth, high-poverty districts are not able to generate as many funds locally. In fact, even though several of the 50 high-poverty districts tax themselves at a higher rate than their neighbors, they generate $4,500 less per student from local taxes. The 50 most segregating borders are found in only 14 states. Ohio contains nine, more than any other state. Alabama has seven. New York and Pennsylvania each contain six. Twenty-nine borders, almost 60 percent of the top 50, are located in the Rust Belt region. States with countywide school districts, like those in the south and the west, are almost entirely absent from the list.
The five most-segregated were the following:
- Detroit Public Schools - Grosse Pointe Public School System: Difference in School-Age Poverty of 42.7 percentage points
- Birmingham City School District - Vestavia Hills City School District & Mountain Brook City School District Difference in School-Age Poverty of 42.3 & 42.0 percentage points
- Clairton City School District - West Jefferson Hills School District Difference in School-Age Poverty of 41.7 percentage points
- Dayton City School District - Beavercreek City School District & Oakwood City School District Difference in School-Age Poverty of 40.7 & 40.3 percentage points
- Balsz Elementary School District - Scottsdale Unified School District Difference in School-Age Poverty of 40.3 percentage points
The reports concludes that
When the Supreme Court established that desegregation orders could not be enforced across district boundaries, it significantly reduced the possibility of achieving meaningful integration. And because America relies so heavily on local property taxes to raise funds for education, the inability to cross district boundaries institutionalizes income segregation and contributes to vast funding disparities among public schools. In this report, we highlight the worst examples of socioeconomic segregation across school district borders as illustrations of a problem that can be seen all across the country. These divisions are harmful for all students, but especially for those who reside on the wrong side of these borders. There you will find 26 million children living within high-poverty school districts, effectively trapped by impermeable borders, while greater educational opportunities often are being enjoyed by their better-off peers right next door. The fact, too seldom acknowledged, is that district boundaries themselves compound the inequalities that our public schools were intended to conquer. In present day America, we allow invisible lines to determine the fate of our youngest and most vulnerable citizens. While many focus on policies that will bring more resources into these underserved districts, very few question why these lines exist in the first place. Our wealthy are consigning lower-income students to a lesser caste by cordoning off their wealth and hiding behind the notion of “local control”. We’ve created and maintained a system of schools segregated by class and bolstered by arbitrary borders that, in effect, serve as the new status quo for separate but unequal.
Thursday, August 25, 2016
On Tuesday, the U.S. Department of Justice filed a lawsuit against the state of Georgia alleging it unlawfully discriminates against students with disabilities through its GNETS program. GNETS stands for Georgia Network for Educational and Therapeutic Supports. The program, which is over forty years old, consists primarily of separate facilities designated for providing education and supports to students with behavioral disabilities. DOJ contends that the program violates Title II of the Americans with Disabilities Act, which prohibits unnecessary segregation on the basis of disability in the public schools. Tuesday’s filing represents the culmination of both years of investigation by DOJ and over a year of negotiations attempting to settle the matter with the state.
DOJ first put Georgia on notice of the potential for such a suit in July 2015, when it sent a Letter of Findings to Governor Nathan Deal and Attorney General Sam Olens. In that letter, DOJ alleged that the GNETS program created incentives for the placement of students with behavioral disabilities in segregated facilities and that those facilities provide opportunities and services that are not equal to those provided in regular education facilities. DOJ found that approximately two-thirds of students in the GNETS program are educated in separate facilities even though the students would benefit from inclusion in the general education environment. It also found that students in these facilities do not have access to art, music, physical education or other non-core classes, unlike students in non-GNETS programs. In addition, DOJ found many stand-alone GNETS program buildings lacked playgrounds, cafeterias, and central or sufficient air conditioning. Some of the stand-alone GNETS programs are housed in the buildings used to educate black students during Jim Crow era segregation.
In response Georgia closed some GNETS facilities and offered to improve others and review each GNETS student’s individualized education plan, which is the special education plan required for every student receiving special education services. However, as DOJ pointed out in its letter of intent to sue earlier this month, the state and school districts already have a legal obligation to review students’ IEPs. DOJ further concluded that improving segregated facilities demonstrates the state’s apparent unwillingness to dismantle a program of segregation.
Time of course will tell whether DOJ can succeed in largely dismantling the GNETS program. Even if the effort does succeed, the victory will be truly won only if students who would have otherwise found themselves in a segregated GNETS program are not simply segregated into separate classrooms within non-GNETS schools. Georgia’s general and special education funding scheme, as the DOJ suit suggests, incentivizes segregation. Being educated in buildings with playgrounds and adequate air conditioning is a vast improvement over being educated in settings without those basic services, but until the system no longer incentivizes segregation, the risk that students with disabilities will be segregated will remain.
Lawsuit Revisits the Question of Education As a Fundamental Right Under the U.S. Constitution, But Is There More To It Than That?
Plaintiffs in Connecticut have filed a new lawsuit against the state challenging the "inexcusable educational inequity and inadequacy" in its school "that prevent inner-city students from
accessing even minimally acceptable public-school options." The complaint argues that these problems are a result of:
First, Connecticut has instituted a moratorium on new magnet schools (Conn.
Gen. Stat. § 10-264l(b)(1); Public Act No. 09-6, § 22 (Spec. Sess.); Public Act No. 15-177, § 1), despite the fact that a large majority of Connecticut’s magnet schools consistently outperform inner-city traditional district schools.
Second, Connecticut’s arcane and dysfunctional laws governing public charter
schools (Conn. Gen. Stat. §§ 10-66ee(c)-(d), 10-66bb(a), 10-66bb(g)) prevent high-performing charter schools from opening or expanding in the State, despite the fact that Connecticut’s few charter schools consistently outperform inner-city traditional district schools.
Third, Connecticut’s inter-district Open Choice enrollment program (Conn. Gen.
Stat. §§ 10-266aa(c), 10-266aa(e), 10-266aa(f), 10-266aa(g), 10-266aa(h)) penalizes school districts that accept students from inner-city school districts, thus dooming the viability of the very program ostensibly designed to provide Connecticut’s students with quality public-school options.
As a remedy, plaintiffs ask:
for a simple declaration that would have immeasurable benefits for many thousands of children: By forcing Plaintiffs and thousands of other students to attend public schools that it knows are failing, while impeding the availability of viable public educational alternatives through the Anti-Opportunity Laws, Connecticut is violating students’ federal due process and equal protection rights. Connecticut should be required to take any and all steps necessary to ensure that neither Plaintiffs nor any other students within its borders are forced to attend a failing public school.
The case is a hard one to pigeonhole. On the one hand, it attempts what I and others have long advocated for: a reconsideration and overturn of San Antonio v. Rodriguez. As the Connecticut Mirror reports,
Forty-three years have passed since the U.S. Supreme Court narrowly ruled in the landmark San Antonio v. Rodriguez school-funding case that education was not a constitutional right and that the disparate spending on education for students from low-income neighborhoods was not a violation of the equal protection clause of the U.S. Constitution.
"The time has come for the federal courts to recognize a federal constitutional right to some minimal, adequate level of education. We felt Connecticut was a very good place to bring it," said Theodore J. Boutrous, one of the attorneys representing the seven student plaintiffs from low-income families.
Boutrous told reporters during a Wednesday conference call that the Rodriguez decision "left open the possibility that a claim like ours could succeed" since that case focused on school funding disparities while this lawsuit focuses on the limited options students have to leave failing schools.
. . .
Experts observing this case say a lot is at stake.
On the other hand, the case takes a factual angle in making out this claim that sounds a lot like free market thinking in education. Moreover, Students Matter, the group that has lead the constitutional challenge to teacher tenure, is backing the case. As a factual matter, the case would appear to be about student choice. It holds up the interdistrict magnet schools created as a result of the Sheff v. O'Neill litigation, which are designed to further integration, as important models for improving educational opportunities for minority student, but argues those type of magnets are not the only viable option. More charter schools, it argues, could create similar options to escape currently unconstitutional traditional public schools. In this respect, the plaintiffs are trying to, in effect, piggy back off of the success of Sheff.
My initial response is that there is a big gaping hole in this use of Sheff magnets. Sheff magnets are an integrative cure to a segregative injury. It is not clear that charters are a proportional or analogous remedy to anything, nor did I notice any indication that these charters would follow the lead of Sheff magnets. With that said, the complaint follows up its charter school claim with the suggestion that the state expand inter-district magnet opportunities, which is consistent with Sheff.
On the whole, however, these limited opportunities are evidence that the plaintiffs say shows that the state is failing to offer even a minimally adequate education, which Rodriguez indicated might be protected. The big question for me is what the plaintiffs really want. Is it to right the wrong of Rodriguez or to dress up a charter school plea in language that sounds appealing to a lot of civil rights advocates that might otherwise be adverse? I do not know enough about the key players in the case to have a firm opinion, but the prior constitutional challenge to teacher tenure offers some hints. What I am confident of, however, is that danger lurks if issues as weighty as Rodriguez are in the wrong hands.
Wednesday, August 24, 2016
Recent Decisions On IDEA Claim Exhaustion; AR Desegregation Consent Decree Upheld; and CA Education Quality Suit Again Rejected
Third Circuit Holds that Non-IDEA Claims Are Subject to IDEA Exhaustion Requirement
Plaintiffs must exhaust claims that implicate services within the purview of the Individuals with Disabilities Education Act, even if those claims are raised under a non-IDEA statute. Because a student’s complaint that a school board discriminated against him under Section 504 and the Americans with Disabilities Act claims raised educational injuries that implicated IDEA services, the claims raised were held subject to the IDEA exhaustion requirement. The case is S.D. v. Haddon Heights Board of Educ., 15-1804 (3rd Cir. Aug. 18, 2016).
California Appellate Court Again Rejects Education Quality Suit
The California Court of Appeal recently refused to reinstate the claims of the Campaign for Quality Education, a case alleging that California's current educational financing system violated the state constitution. In the appellate opinion in April, Campaign for Quality Education v. California, the plaintiffs argued that article IX of the California constitution required the state to adequately fund education and that the state should be compelled to do so under court supervision. The appellate court found that the California Constitution did not require the state to provide a certain quality of education. In the this week's opinion, appellate affirmed the trial court's dismissal of the complaint for failure to state a cognizable claim and again cited its decision to "leave the difficult and policy-laden questions associated with educational adequacy and funding to the legislative branch." The latest opinion is Campaign for Quality Education v. California, No. A134423S (Cal. Ct. App. Aug. 22, 2016).
Eighth Circuit Holds That Arkansas School Districts’ Desegregation Consent Decree Duties Did Not End with Repealed Statute
In W.T. Davis v. Cutter Morning Star School, 15-1919 (8th Cir. Aug. 18, 2016), several individual school districts in Arkansas sued to end a desegregation consent decree, arguing that subsequent state legislation invalidated the decree. The case arose under the following facts: part of a 1991 consent decree to desegregate the Garland County, Arkansas school system adopted the Arkansas’ School Choice Act, which included a race-based limitation on students applying to attend a school outside of their resident school district. In independent litigation in 2012, a federal district court held that that provision of the Act violated the Equal Protection Clause. The Arkansas legislature then passed the 2013 School Choice Act, removing the race-based limitation on public school transfers and including a provision preventing a receiving school district from discriminating on the basis of race.
In the recent case, the Eighth Circuit held that because the 2013 Act had a carve-out for pre-existing judicial consent decrees that remedied the effects of past discrimination, the individual school districts could not show that the new law had an actual effect on the target of the decree and thus nothing warranted termination of the entire agreement.
New Corporal Punishment Data Should Remind Us That Zero Tolerance Suspensions and Expulsions Will Not Simply Fade Away
Yesterday, Ed Week reported that 109,000 students were paddled in school in the most recent year's data. These instances of corporal punishment occurred in 21 states and 4,000 schools. "Texas, Alabama, Mississippi, Arkansas, Georgia, Tennessee, and Oklahoma physically disciplined the most students." Poor students, moreover, appeared to be those most at risk. African-Americans were also at heightened risk. While only African Americans were only "22% of overall enrollment in schools using corporal punishment," 38% of students paddled were African American.
In my forthcoming book Ending Zero Tolerance, I make the argument that historical trends in corporal punishment offer an overall warning sign for our most vulnerable student populations: zero tolerance and excessive suspensions and expulsions will not go away simply because the general public turns against them. There will always be holdouts, and those hold outs occur in the very places where help has always been needed the most. And right now, suspension and expulsion has a lot further to go. Our public schools continue to suspend and expell more than three million students a year.
In the book, I explain that in 1997 in Ingraham v. Wright the Supreme Court
held that schools were free to corporally punish students and that schools need not even afford students with any due process prior to paddling them. The Court reached this conclusion notwithstanding the unsettling facts of the case. Speaking of the lead plaintiff, the Court wrote: “Because he was slow to respond to his teacher’s instructions, Ingraham was subjected to more than 20 licks with a paddle while being held over a table in the principal’s office. The paddling was so severe that he suffered a hematoma requiring medical attention and keeping him out of school for several days.” Ingraham’s classmate was regularly paddled for “minor infractions. On two occasions he was struck on his arms, once depriving him of the full use of his arm for a week.”
The Court offered up the possibility that students could sue the teacher or school under state tort law as the reason why it need not intervene. A close examination of the case, however, reveals that the Court simply thought it unwise for courts to become further involved with discipline. Better to let schools and society work it out. In one respect, the Court’s faith in schools and society was not misplaced. In the ensuing years, much of society and the education system came to see corporal punishment as barbaric, rephrasing it as “beating” rather than paddling. With this changed perspective, the number of districts and states that authorized corporal punishment sharply declined. By 2014, over half the states prohibited corporal punishment in schools. In those states that still permit corporal punishment, many school districts or schools prohibit the practice of their own accord. But in another respect, the Court’s faith in society and schools was sadly misplaced.
The reality for actual students in many communities remains relatively unchanged since 1977. Twenty-one states still permit corporal punishment, notwithstanding the social science and national consensus against it. The practice holds on the strongest in those places where it has always been the most troubling. Today, every state in the southeast permits corporal punishment and many schools there frequently impose it. Alabama, Mississippi, and Texas all paddled more than 30,000 students in the 2006–2007 schoolyear. In Mississippi, 7.5 percent of the student population was paddled each year.
The lesson for school suspensions is simple. Even if a national consensus turns against zero tolerance and harsh discipline, the shift will have little effect on the lives of students in many communities. Only judicially enforced rights can bring justice and fairness to these communities. Even if policy could eventually resolve the problem, courts should not ask students to wait on states and schools to respect their rights. Constitutional rights exist to protect citizens against the whims of local, state, and federal majorities. Each unjustifiably imposed suspension or expulsion is a deprivation of a right that demands a response. Each suspension or expulsion represents a potential educational death sentence and second-class citizenship.