Thursday, July 17, 2014

Mysterious Group Sues California School Districts for Providing Inadequate PE Time

A mysterious group called Cal200 has filed class action lawsuits against 3 dozen California school districts for failing to providing students with the 200 minutes of PE every 10 days required by state law (an average of 20 minutes a day). Cal200 has no apparent connection to education or the school districts that it is suing, which include Los Angeles Unified — the second-largest school district in the nation — San Francisco Unified, Riverside Unified, San Bernardino City Unified, Palm Springs Unified, and Desert Sands Unified. Cal200's president has refused to provide details about its membership or history. Little information is available on Cal200's website, leading the president of the Palm Springs Teachers Association to conclude that "this lawsuit is low-hanging fruit. Everybody knows that PE has been pushed aside. People saw this coming, and it was avoidable." In April, a risk management organization warned California school districts about Cal200 -- that the organization requests teachers' lesson plans through a public records request, then sues based on the information provided. The Desert Sun reports:

A few years ago, as the economic recession whittled away at state education funding, many elementary schools shifted more of the responsibility for PE onto classroom teachers. Under this system, students would spend a limited amount of time with a specialized PE teacher once or twice a week, and then their regular teacher would add more physical activity into the classroom routine.

The plan works on paper... but in reality, many teachers are stretched too thin to provide the PE minutes. Teachers are under constant pressure to produce high-testing students, so some have sacrificed PE minutes so they could have extra time for English or math[.]

Read more at the Desert Sun here.

July 17, 2014 in Cases, News | Permalink | Comments (0)

Federal Court Dismisses Group's Suit to Distribute Anti-Religion Flyers on School Grounds

The U.S. District Court for the Middle District of Florida dismissed a suit against the Orange County  School Board (OCSB) earlier this month, finding that the claim that the Board prohibited distribution of anti-religion materials was moot. An advocacy group, the Freedom From Religion Foundation, filed the federal complaint after the OCSB did not allow the group to hand out flyers in schools that criticized various religions. The Foundation charged that the OCSB's restriction was viewpoint discrimination because the OCSB allowed a group called the World Changers of Florida  to distribute copies of the Bible. The OCSB, in explaining the different treatment, cited a consent decree from another Florida county school board to allow World Changers to distribute Bibles on school grounds (none of the parties in the Orange County case were parties to the prior consent decree). The Orange County case was mooted, the Middle District found, because the OCSB stated "that each of the materials plaintiffs sought to distribute will be unconditionally allowed" and thus the prohibition that gave rise to complaint was unlikely to reoccur. Read the district court's decision in Freedom From Religion Foundation v. Orange County School Board at Courthouse News Service here.

July 17, 2014 in Cases, First Amendment | Permalink | Comments (0)

Court Holds Oklahoma's Repeal of Common Core Curriculum Does Not Violate State Board's Authority

The Oklahoma Board of Education brought suit claiming that the legislative repeal of Common Core in the state violated the Board's constitutional authority over the "supervision of instruction in the public schools."  On Tuesday, the state supreme court heard oral arguments in the case.  Four hours later, they issued their decision, Pack v. State, remarkable in its brevity.   It stated the issue in one sentence, declared jurisdiction over the case in two sentences, and reached its holding in one sentence: "HB 3399 does not violate art. 13, §5 or art. 4, §1 of the Oklahoma Constitution."  

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July 17, 2014 in Federal policy, School Funding | Permalink | Comments (0)

Wednesday, July 16, 2014

David Sciarra and Billy Easton Weigh In on New York's Teacher Tenure Lawsuit

The Times Union ran this commentary by David Sciarra and Billy Easton yesterday.  Thanks to David for sharing.

Sound Education Child's Right

With much fanfare, a novel lawsuit filed in Staten Island alleges teacher tenure, due process and lay-off procedures violate the constitutional right of New York school children to a "sound basic education."

Without offering specifics, the complaint baldly asserts that these procedures result in classrooms filled with "incompetent" teachers, especially in schools serving at-risk students.

The complaint also presents no evidence to suggest that ending tenure or altering due process protections for teachers will somehow improve student outcomes. Nor could it because there is none.

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July 16, 2014 in School Funding, Teachers | Permalink | Comments (0)

In a Holistic Review of Holistic Admissions, Fifth Circuit Upholds University of Texas Admission Plan

For those who missed it, the 5th Circuit issued its opinion late yesterday in the remand from the Supreme Court in Fisher v. Texas.  The Court of Appeals, by a 2-1 vote, upheld the admissions plan.  The opinion is here.  The University of Texas victory was unexpected by many close to the case.  I personally thought the panel would still be predisposed toward the Texas plan, but there was a strong chance it would remand to the district court to further develop the facts to help bolster the narrow tailoring case.  So my surprise was the Court of Appeals' willingness to defend the plan as narrowly tailored on the facts already before.

On my initial read of the opinion, I was most struck by the court's framing of the admissions plan.  It analyzed the admissions plan in full context.  This is something it had done in its previously decision, but it went even further this time and framed the facts in a way that offered a more definitive defense of the notion that the plan was narrowly tailored.  First, it accounted for where diversity had been for several years prior to the current admissions plan to show that the Top Ten Percent Plan alone did not work nearly as well as race neutral advocates would have us believe.  Second, it was insistent on analyzing the use of race not in the narrow context of the holistic admissions review process in which Texas used it, but in the broader admissions context.  This allowed it to show how race has the potential to be a factor in only a small percentage of overall admissions program.  Top Ten Percent Plan dominates the admissions process and the holistic review operates in the few remaining seats up for grabs.  In that respect, the consideration of race is much narrower in Texas than it was in Grutter v. Bollinger.  

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July 16, 2014 in Racial Integration and Diversity | Permalink | Comments (0)

Toledo Makes Strides in Improving Discipline: From Reactive to Proactive

The Toledo Public School District has added itself to the ranks of large school districts revisiting their approach to student discipline.  The district has implemented a preventive approach.  Its plan was to to be more proactive than reactive and have an open dialogue with students about what they did wrong and how they can behave better in the future. If the numbers reflect reality, it appears to be working.  Under the new system, the number of suspensions at one school dropped from 260 to 41, and no students have been expelled.

Limiting the amount of time students spend outside the classroom was one of the main goals of the program, but the district also removed its detention and the demerit system.  Now, students are

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July 16, 2014 in Discipline | Permalink | Comments (0)

Tuesday, July 15, 2014

Common Core Alive, Even in States That Reject It

Per my early posts, opting out of Common Core and keeping a No Child Left Behind waiver is no easy chore.  As a new Edweek article details, those states that opted out are working with a very short deadline for coming up with an alternative to the Common Core.  Given the complexity of developing academic standards, they cannot really do that within their current time frame.  The easy option for some is to adopt the Common Core, with slight revisions, under a different name. This allows politicians or state departments of education to create the illusion that they rejected the Common Core.  South Carolina's legislature, however, claims to even reject that illusion.  Their legislation indicates that if the state department of education adopts any curriculum that was not created locally--"home grown"--the legislature itself must approve the curriculum.

Posturing aside, the practically reality appears to be that the "opt-out" states will operate under a curriculum that mirrors the Common Core in the immediate future and reserve major changes for a future multi-year process.  Even then, they are likely to only make those changes necessary to be able to claim that their curriculum is not the common core.

July 15, 2014 in ESEA/NCLB, Federal policy | Permalink | Comments (0)

Supreme Decision Probably Makes Student Cell Phone Searches Off Limits in the Average Student Discipline Case by Jason Nance

The United States Supreme Court recently issued a watershed decision that limited the reach of police officers to conduct searches under the Fourth Amendment. In Riley v. California, the Court unanimously held, overturning a prior California Supreme Court decision, that police officers generally must obtain a search warrant before searching through digital information that may be accessed on the cell phone of someone who has been arrested. In issuing this ruling, the Court declined to extend a warrantless search exception that allows police officers to search the area within arrestees’ immediate area of control to ensure the officers’ safety and prevent the loss of evidence. This decision has been hailed as a monumental victory by privacy rights activists who are concerned with the government’s growing ability and inclination to search digital information. Although its full ramifications are unclear, it undoubtedly will affect how searches of digital information are evaluated in other contexts, including how courts will evaluate searches by school officials of information stored on students’ smartphones.

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July 15, 2014 in Discipline | Permalink | Comments (0)

Monday, July 14, 2014

The Legal Right to Education: How Does the United States Stack Up Internationally?

An interesting new student note, taking an international comparitive law approach to the right to education, is now available on westlaw.  See Yanet Marisol Beniteza, The Right to Education: Comparing Educational Rights in Japan, El Salvador, and the United States, 36 Hous. J. Int'l L. 749 (2014).  The introduction states:

Education is fundamental in the developmental stages of children and is generally referred to as “the key which allows people to move up in the world, seek better jobs, and ultimately succeed in their lives.” The subject of education in the United States is one that is widely discussed, and calls for education reform have been made. Not only is this the case in the United States, but also in countries around the world. This is such a high-priority topic in the international community that several international instruments guarantee the right to basic education. The right to education was included in the Universal Declaration of Human Rights, the Convention on the Rights of a Child, and the International Covenant on Economic, Social and Cultural Rights. This Comment will analyze the right to education as found in these three international instruments; the interpretation of the right to education by signatories of these treaties; and the steps that nations have taken in order to ratify the treaties.

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July 14, 2014 in School Funding | Permalink | Comments (0)

DOJ Reaches Agreement with Jefferson County, La. Parish Schools to End Discriminatory Practices Against Latino Students

The Jefferson Parish Public School System in Louisiana (JPPSS) reached an agreement with the Departments of Justice and Education last week to ensure that students can enroll in school regardless of their or their parents' national origin or immigration status. The agreement follows the suggestions in the agencies' May 18 Dear Colleague Letter reminding districts of the permissible means to verify a student's age, residency, and immunizations without discouraging enrollment based on national origin or immigration status. The case arises from a 2012 civil rights complaint filed by the Southern Poverty Law Center alleging discrimination in Jefferson Parish against Latino students, including one school telling a high school student that she could not graduate unless she showed proof of a social security number before her graduation, not providing interpreters for Spanish-speaking parents at parent-teacher conferences, and allowing school staff to use racial slurs when referring to students. The SPLC noted then that Latino students made up about 17 percent of the Jefferson Parish school district's students, and limited English proficiency students were about eight percent of the enrollment. Among the terms of the three-year agreement between the DOJ/DOE and JPPSS, the district has agreed to revise enrollment and registration materials and policies to ensure they do not exclude or discourage students from enrolling based on citizenship or immigration status; ensure that parents and students are not asked to produce any  document that requires proof of citizenship or immigration status in order to enroll or graduate; and implement a translation and interpretation policy to ensure that LEP parents receive essential information in a language they understand. More information on the agreement is at the DOJ's site here.

July 14, 2014 in News | Permalink | Comments (0)

Friday, July 11, 2014

Illinois to Change the Way It Funds Schools, Congress Should Pay Attention

This spring and summer, the Illinois legislature has been working to reform the way it funds schools.  This move is rather remarkable given that the state has been sued so many times for its inequitable funding, the courts have dismissed the claim as nonjusticiable each time, and, for the past few decades, the state has had one of the most inequitable funding systems in the country.

A bill reforming the funding formula has passed the state senate, but did not make it to the house in time for full consideration prior to the summer recess.  A special session may be called to deal with the bill.  If not, it will be at the top of the agenda for the next session.  Either way, there is significant optimism that it will eventually pass.

The current bill would consolidate the current funding formulas into one that prioritizes funding based on student need.  Several districts stand to substantially benefit.  The state board of

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July 11, 2014 in School Funding | Permalink | Comments (0)

Thursday, July 10, 2014

The State of Education for African American Students

The Education Trust has released The State of Education for African American Students for 2014. It finds widespread opportunity gaps deprive African Americans of many of the school resources and experiences that contribute to academic success.  This gap causes African American students’ performance to continue to fall far behind that of white students. The issue manifests itself not only in the lack of courses and experiences available to African American students (fifteen percent of African American high school student attend schools that do not offer any AP courses in the math, English, science, or social studies), but also in the disproportionate way such opportunities are taken away. For instance, African American students are far more likely to be removed from the classroom for extended periods through suspension and expulsion. The report also notes variances across jurisdictions.  While “[n]o state is performing as well as it should be African American students . . . wide variations in performance across states show that what states do matters.” Even within states, the variations between different school districts can be drastic, with certain schools “educating African American students to high levels of achievement” and other districts falling short.

The report is not all bad news.  It acknowledges progress.   In the last twenty years, the number of

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July 10, 2014 in Equity in education, Studies and Reports | Permalink | Comments (0)

Wednesday, July 9, 2014

Study Links Funding to Student Achievement, But Also Finds Many Schools Lack Sufficient Funds While Others Misallocate What They Have

The Center for American Progress has released an updated study of school district spending practices.  It attempts to measure "bang for buck," assessing the extent to which schools spend money in ways that improve achievement.  Accepted is the notion that "money matters," but not all schools know how to best divert their funds.  The study, Return on Educational Investment: 2014, makes the following major findings:


• Low educational productivity remains a deeply pressing problem, with billions
of dollars lost in low-capacity districts. . . .

• Some of the nation’s most affluent school systems show a worrying lack of
productivity. Our analysis showed that after accounting for factors outside of
a district’s control, many high-spending districts posted middling productivity
results. For example, only slightly more than one-third of the districts in the top
third in spending were also in the top third in achievement.

• In some districts, spending priorities are clearly misplaced. Texas is one of
the few states that report athletic spending at the district level, and the state’s
data suggest that more than 100 districts in Texas spend upward of $500 per student
on athletics.2 A few districts in Texas spend more than $1,000 per student
annually on athletics. To keep these numbers in perspective, the average unadjusted
per-pupil operating expenditure in the state in 2013 was around $10,000.

• State approaches to improving fiscal effectiveness vary widely. Only a few
states, such as Rhode Island, currently take a weighted-student funding based
approach to education, where money is distributed to schools based on student
need. . . .
• States have failed to make fiscal equity a priority and large funding gaps
exist across school districts. In our analysis, we calculated the expenditure difference
between a district that spends near the top and near the bottom in each
state. . . . [W]e found that gaps among school districts remain high. In New Jersey, the difference between the wealthiest districts and the least wealthy district was $6,200, after
adjusting for cost of living and student demographics.

• State budget practices are often inconsistent and opaque. Key expenditurerelated
definitions vary, and while almost every state now has a common chart of
accounts—a type of budget dictionary—the specifics are not comparable across

July 9, 2014 in School Funding | Permalink | Comments (0)

NY High Court Opinion Shows Difficulty of Tailoring Cyberbullying Laws

The New York Court of Appeals recently struck down a local cyberbullying ordinance enacted by the Albany County Legislature on First Amendment overbreadth grounds. In 2010, the Albany County Legislature adopted a new misdemeanor offense — cyberbullying — defined as "any act of communicating . . . by mechanical or electronic means . . . with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person." A high school student was prosecuted under the statute after he anonymously posted photographs of his classmates and other minors with sexual captions attached to the pictures. The student pleaded guilty to one count of cyberbullying but reserved his right to raise his constitutional arguments on appeal. On appeal, the Court noted that the statute "create[d] a criminal prohibition of alarming breadth" that "criminalize[d] a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult." The county government conceeded on appeal that the ordinance was overbroad and thus limited protected free speech, but argued that the law could be saved because certain sections passed strict scrutiny review, namely the prohibitions against disseminating sexually explicit photographs, private or personal sexual information, and false sexual information with no legitimate public, personal or private purpose. Those sections were justified, the County argued, by a compelling government interest and were narrowly drawn to serve that interest. The NY Court of Appeals declined to save the non-infringing sections of the ordinance, finding that the law's text "envelops far more than acts of cyberbullying against children by criminalizing a variety of constitutionally-protected modes of expression" and that the Court could not rewrite the law without encroaching on legislative power and modifying the legislature's original intent. Read the Court's opinion in People v. Marquan M. here and Eugene Volokh's comments on the case here.

July 9, 2014 in Cases, First Amendment | Permalink | Comments (0)

Tuesday, July 8, 2014

"Keep the Promise" to Fund Schools as Colorado's Constitution Requires by Molly Hunter

Seeking to enforce the will of Colorado voters, who amended their state constitution to guarantee reasonable school funding, citizens from around Colorado filed a lawsuit, Dwyer v. State of Colorado, on June 27, 2014.

Amendment 23 was passed by voters in 2000 after the state had fallen increasingly behind other states in funding public education. It required, at a minimum, that the state gradually catch up to its own 1988 spending level and then hold steady. Yet despite this clear mandate for minimal annual increases in education funding, the state violated Amendment 23 starting in 2010 by repeatedly cutting education funding using a mechanism called the "negative factor." Instead of honoring the voters' intent for increased investment in education, the state has cut education funding by over a billion dollars per year.

"Keep the promise of Amendment 23," said Tim Macdonald, of the Arnold & Porter law firm, co-lead attorney on the case. "The voters did not trust the State to maintain funding for K-12 education, so they passed a constitutional amendment to force the State to do so. Although the State complied for a decade, when times got tough, they sacrificed our kids by slashing funding by $1 billion, each year," he explained.

Communities have seen the painful results of these cuts. In places like Kit Carson school district, struggling families have had to dig deep into their pockets in order to fundraise for basic educational necessities as well as "luxuries" like instruments and uniforms so that their children can have a music program. New and updated books are non-existent and administrations have been unable to replace retiring teachers in core classes. For example, schools that were able to provide reading classes to students before the budget cuts are no longer able to provide them to younger students.

All across the state, painful budget cuts have resulted in the loss of educational opportunities for students that are vital to preparing them for citizenship, post secondary education and the workforce.

"The General Assembly's misinterpretation of Amendment 23 has resulted in drastic cuts in educational services and programs in direct contradiction of the voters' intent when they passed Amendment 23," explained co-lead attorney Kathleen Gebhardt, Executive Director of Children's Voices. "This isn't theoretical. The cuts have caused great and lasting harm to schools and children around the state. Jobs have been lost, programs have been cut, and students have lost out on individual attention and critical interventions."

When Colorado's voters approved Amendment 23, they expected the legislature to act in good faith, sharing the voters' commitment to healthy public schools. Because the legislature has failed the voters and failed to uphold the Constitution, it is necessary to turn to the courts. As citizens, we all have a right to expect our government to act responsibly and honorably and to uphold clear constitutional rights.

"As voters, we thought we were approving a positive factor for education, but instead the state gave us a negative factor. Our students are losing opportunities to help prepare them for the workforce. This reality is all too real for students around the state and we cannot wait any longer to keep the promise Colorado made to its kids fourteen years ago," said Lindi Dwyer, lead Plaintiff in the suit, "The state can't just ignore the constitution."

"Colorado is near the bottom of the nation in funding education. The Legislature's continuing failure is depriving the state's children of critical resources needed to succeed in school," said leading education rights attorney David Sciarra of Education Law Center. "Given the Legislature's refusal to act, it's time for the court to step in and safeguard the education rights of Colorado's 1 million public school children." 

Plaintiffs include parent/taxpayers, the statewide Colorado Rural Schools Caucus, the Colorado PTA, and several school districts. Defendants include the State, the Commissioner of Education, and the Governor. 

July 8, 2014 in School Funding | Permalink | Comments (0)

Monday, July 7, 2014

New York Lawsuit Alleging Teacher Tenure Laws Violate Student Rights Filed

The New York lawsuit pitting students rights against teachers, based on the same theory as Vergara in California, has been filed.  The plaintiffs claim that N.Y.'s current tenure laws "violate the State Constitution's guarantee of a 'sound basic education' by making it difficult to fire bad teachers and by protecting the most veteran teachers in the event of layoffs, regardless of their quality."  Both this case and the recent decision in California are monumental and the road ahead is far from certain.  As Michael Rebell remarks, "[i]t is basically unprecedented for a court to get into the weeds of a controversial education policy matter like this."  The New York Times article on the case is here.


July 7, 2014 in School Funding, Teachers | Permalink | Comments (0)

Department of Education Makes New Push for Equitable Distribution of Quality Teachers

The U.S. Department of Education announced its Excellent Educators for All Initiative today. The purpose is to help ensure equitable distribution of quality teachers.

“All children are entitled to a high-quality education regardless of their race, zip code or family income. It is critically important that we provide teachers and principals the support they need to help students reach their full potential,” U.S. Secretary of Education Arne Duncan said. “Despite the excellent work and deep commitment of our nation's teachers and principals, systemic inequities exist that shortchange students in high-poverty, high-minority schools across our country. We have to do better. Local leaders and educators will develop their own innovative solutions, but we must work together to enhance and invigorate our focus on how to better recruit, support and retain effective teachers and principals for all students, especially the kids who need them most.”

The three-part Excellent Educators for All Initiative includes:

  • Comprehensive Educator Equity Plans
    • The Department is asking states to analyze their data and consult with teachers, principals, districts, parents and community organizations to create new, comprehensive educator equity plans that put in place locally-developed solutions to ensure every student has effective educators.
    • Chief State School Officers will receive a letter today from Secretary Duncan asking them to submit their new plans by April 2015. These plans were first created in 2006 and are required by Title I of the Elementary and Secondary Education Act.
  • Educator Equity Support Network
    • The Department is investing $4.2 million to launch a new technical assistance network to support states and districts in developing and implementing their plans to ensure all students have access to great educators.
    • The network will work to develop model plans, share promising practices, provide communities of practice for educators to discuss challenges and share lessons learned with each other, and create a network of support for educators working in high-need schools.
  • Educator Equity Profiles
    • To empower communities and help states enhance their equity plans, the Department will publish Educator Equity profiles this fall. The profiles will help states identify gaps in access to quality teaching for low-income and minority students, as well as shine a spotlight on places where high-need schools are beating the odds and successfully recruiting and retaining effective educators.
    • In addition to the profiles, the states will receive their complete data file from the Civil Rights Data Collection (CRDC). States will be able to conduct detailed analyses of the data to inform their discussions about local inequities and design strategies for improving those inequities.

For more information, see here.

July 7, 2014 in Federal policy, Teachers | Permalink | Comments (0)

Students with Mental Health Needs Unnecessarily "Warehoused," Lawsuit Charges

A class action suit recently filed in federal court alleges that students with mental health needs are being "warehoused" by the Springfield, MA school district without educational opportunities or therapeutic supports. The suit was filed by the Parent/Professional Advocacy League (PPAL), a grassroots organization that focuses on mental health issues, on behalf of students at Springfield's  Public Day School. The suit charges that the school uses "behavior control using drastic methods including dangerous physical restraints, forced isolation in padded rooms and repeated arrests and suspensions for minor offenses." The plaintiffs claim that the Day School's students are being segregated in violation of the ADA and instead students could be educated in neighborhood schools with reasonable modifications and services. The Day School offers few of the extracurricular activities and vocational opportunities available to children in neighborhood schools, the plaintiffs also argue. The complaint further alleges that the effects of hyper-discipline and isolation on the students contributes to the Day School's high drop out rate of 41% in 2013-14 (compared to the overall 6.5% rate in Springfield's other schools). The PPAL and the students are being represented by attorneys from the Bazelon Center for Mental Health Law, the Center for Public Representation, and Boston law firm Bingham McCutchen. Read the complaint in S.S. v. City of Springfield here.

July 7, 2014 in Cases, Special Education | Permalink | Comments (0)

Thursday, July 3, 2014

School Employee’s Comments Made During Leave from District Held Protected Under First Amendment

The Eleventh Circuit Court of Appeals recently held that a school employee’s speech, made while on leave from his school district serving as the president of the Georgia Association of Educators (“GAE”), was made in that role rather than as a school district employee. The circuit court thus overturned on First Amendment grounds a lower court's summary judgment ruling for the school district. The case arose when Richard Hubbard, who had been an assistant principal employed by  the Clayton County (Georgia) School District, was elected to be president of the GAE. Hubbard was retained as a district employee to preserve his retirement status and benefits, but was considered “on-loan” to the GAE, which reimbursed Hubbard’s salary and benefits to the district. During his tenure as GAE president, the Clayton County School District had an accreditation crisis. Hubbard commented to the media that if certain allegations made against the Clayton County School District about the accreditation investigation were true, the school board should step down. Following those comments, the Clayton County School District voted to discontinue any employee leave that was not specifically allowed by Board Policy, including Hubbard’s “on-loan” arrangement. Hubbard resigned as a school employee and sued the district in federal court. A federal district court found in favor of the school district on summary judgment, deciding that Hubbard was speaking pursuant to his official duties for the school district and thus had no First Amendment protection under Garcetti v. Ceballos. The 11th Circuit disagreed, finding that Hubbard’s speech was made in his capacity as president of GAE, and thus his speech did not fall under Garcetti. The 11th Circuit noted that Hubbard was only technically an employee of the school district since he had no employee assignments or responsibilities to the district while “on-loan” to GAE. Read Hubbard v. Clayton County School District here.

July 3, 2014 in Cases, First Amendment | Permalink | Comments (0)

Wednesday, July 2, 2014

Reflecting on the 50th Anniversary of the Civil Rights Act of 1964

Today marks the 50th Anniversary of the Civil Rights Act of 1964.  Either I have not been watching as closely or it has not gotten the same attention that the 60th Anniversary of Brown v. Board of Education got earlier this year.  Coming right before the July 4th holiday probably does not help much.  In any event, in honor the holiday, I offer  this from the introduction of my chapter in a forthcoming book on the Civil Rights Act of 1964 edited by Kristi Bowman:

The Civil Rights Act of 1964 has had the largest impact on racial equality of any legislation passed. Although the Supreme Court had declared school segregation unconstitutional a decade earlier in Brown v. Board of Education, no significant school desegregation occurred prior to the Act. In fact, a mere one percent of African American children attended integrated schools in the South in 1964. With the passage of the Civil Rights Act of 1964, things changed quickly. School desegregation began occurring at a rapid pace, and those titles of the Act aimed at employment and public accommodations, likewise, began to fundamentally change opportunity for African Americans and other minorities across the country.

The Civil Rights Act included eleven different titles, each aimed at discrimination in some different context or granting the federal government authority to address it. Title VI of the Civil Rights Act was one of the most sweeping titles. It prohibits racial discrimination in any program receiving federal funds. As federal money began to flow more widely in education during the 1960s, Title VI’s prohibitions quickly applied to all of the nation’s public schools, and eventually applied to a substantial number of private schools as well. It, likewise, extended its reach beyond education to various other public and private industries, such as transportation, health, and environment, that receive federal funds. The strategy was simple: the further the federal government spread its money the greater its leverage to address racial equity and discrimination in all facets of public life.

For nearly four decades, Title VI did more than just root out obvious invidious discrimination; it helped promote racially equitable results. Under Title VI, complainants could pursue administrative and litigation remedies for racial inequality, even when they could not demonstrate the existence of malevolent design by some particular actor. It was enough that a federal funding recipient had enacted a policy or engaged in a practice that produced racially disparate results that could not be justified by the practical necessity of achieving some important goal. Complainants relied on agency regulations that prohibit disparate impact. Agencies had enacted those regulations pursuant to their authority under section 602 of the Civil Rights Act, which provides that agencies shall enforce section 601’s prohibition on discrimination and guarantee of equal access by enacting regulations.

In 2002, the Supreme Court, in Alexander v. Sandoval, reversed course. It brought an end to private individuals’ ability to use litigation as means to challenge racial inequality in federally funded programs, save those instances when they could demonstrate intentional discrimination. The Court held, contrary to prior case law, that violations of disparate impact regulations do not give rise to a private cause of action. The Court did not question agencies' authority to enforce their regulations administratively, but for private individuals seeking recourse in court, Title VI became largely redundant. It provided no more protection than the Fourteenth Amendment, to which state actors were already subject. The only meaningful vestige was litigants’ ability to continue to sue private entities that received federal funds and engaged in intentional discrimination.

Such a monumental loss demands a response, particularly in the 50th anniversary year of the Civil Rights Act. Three major and distinct responses are possible: administrative action, litigation to evolve new doctrine, and legislative reform. Unfortunately, the most viable options may provide incomplete and indefinite remedies, while the least viable options may provide the most effective remedies. Given the limitation of each strategy, civil rights advocates must continue to press on all three fronts if Title VI of the Civil Rights Act of 1964 is ever to regain a modicum of its prior glory.

The rest of the story, which digs a little deeper into the intersection between education and the Act, will hopefully be available in Professor Bowman's editted work later this year or early next year.

July 2, 2014 | Permalink | Comments (0)