Friday, October 21, 2016
Courts Dividing Over Transgender Students' Rights, Creating Problems of Authority and Predicatability
Earlier this summer, a federal district court judge in Texas rejected that the Department of Education's position that Title IX protects transgender students' access to bathrooms consistent with their gender identity. That opinion was in contrast to the Fourth Circuit Court of Appeals, which had upheld the Department's interpretation in Grimm v. Glouchester this past spring. This week the divide and stakes only deepened. This week the district court judge in Texas issued another opinion to clarify or expand his first one. He indicated that his injunction against the Department prevented it from enforcing its Title IX position not only in regard to the school district in question, not only in the state of Texas, but nationwide.
Interestingly, a federal magistrate judge in Illinois decided a case this week in which some students had tried to block other transgender students' access to restrooms consistent with their gender identity. They had argued that such access would infringe on the privacy rights of other students. The magistrate judge rejected this challenge, siding instead with the rights of transgender students and the Department of Education's position.
The various cases, particularly the nationwide injunction by the Texas court, raise serious issues of jurisdiction, conflicts, and enforce ability. If the Fourth Circuit, which covers South Carolina up through West Virginia and Maryland, has sided with the Department's position, can a Texas court enjoin the Department from carrying out that position? One would think not. Circuit splits happen all the time and one circuit does not impose its will on another. On the other hand, I imagine the court could hold the Department in contempt for violating its court order, even though that order might be beyond the trial court's authority. This problem explains why the Department of Justice immediately appealed the order yesterday and presumably the case might have some sort of expedited appealed. On the merits, such an appeal might be hard to expedite, but a court could deal with jurisdictional questions more easily through a temporary stay or other measures.
Thursday, October 20, 2016
The ACLU of California has released a new report titled The Right To Remain a Student: How California School Policies Fail to Protect and Serve. The report begins:
Over the past two decades, police officers in the United States have increasingly displaced school administrators as disciplinarians, responding to minor offenses and conduct violations that pose no direct threat to personal safety. This increase in student-police interactions has funneled thousands of students into the school-to-prison pipeline and created adverse legal consequences for school districts. The Right to Remain a Student: How California School Policies Fail to Protect and Serve details these consequences and describes the current state of school district policies in California that pertain to police on campus. Additionally, it shares model policies that both promote school safety and protect student rights. These model policies are designed to ensure that school staff will manage police encounters safely and equitably for all students—no matter their race, class, disability status, gender, or where they go to school.
- Many districts have conflicting, vague, or absent law enforcement policies that provide little to no meaningful guidance to school staff on when to call police to campus or how to interact with police.
- Most school districts give staff complete discretion to call police to address student misbehaviors that should be handled by school staff such as administrators or counselors, including: a. General school rule violations (62% of districts give staff discretion), b. Bullying and harassment (60.7% of districts give staff discretion), c. School disruption (57.4% of districts give staff discretion), and d. Vandalism (66.7% of districts give staff discretion or even require reporting to police).
- Very few schools (4% or less in each category) have policies limiting police contact for rule-breaking or minor offenses.
- California school districts provide inadequate guidance to school staff on what they should do when police officers question students on campus. a. Of school districts statewide, 70.9% allow police officers to interview students immediately upon demand, stating that staff “shall not hinder or delay” interrogations. b. Less than 1% provide that an adult (not a police officer) must be present to make sure the student’s civil rights are observed during police questioning. c. Only 1.3% of districts have a police ensuring that staff or police advise students of their constitutional right to remain silent.
- California school districts similarly do not protect students who are arrested or removed from campus by police. a. Of California school districts, 30% have no barriers to police removing a student from campus and 8% provide no guidance whatsoever about police officers removing students from campus. b. Only 18.3% of California school districts require a school administrator to ascertain the reason the officer must remove the student from school. c. Only 5.6% of school districts maintain any procedures governing the enforcement of arrest warrants on campus.
A key thesis of the report is the need to distinguish between every day misbehavior of students and other behavior that may actually justify police involvement. As I emphasize in the book Ending Zero Tolerance, many schools do not even distinguish between these types of behavior in their own suspension and expulsion policies, which has also caused a dramatic increase in school exclusion. In other words, it is hard to preach lessons to law enforcement when schools are not even following those lessons themselves.
Thursday, October 13, 2016
Study Finds That Harsh School Discipline Costs Nation $35 Billion, Showing Connection to Much Larger Education and Social Issues
Yesterday, the Civil Rights Project released a new report, The High Cost of Harsh Discipline and Its Disparate Impact. The study attempts to quantify the cost of harsh school discipline through the dropouts and social costs it produces. It looks closely at California and Florida to create a baseline of costs and then extrapolates them nationwide. The abstract explains:
School suspension rates have been rising since the early 1970s, especially for children of color. One body of research has demonstrated that suspension from school is harmful to students, as it increases the risk of retention and school dropout. Another has demonstrated that school dropouts impose huge social costs on their states and localities, due to lost wages and taxes, increased crime, higher welfare costs, and poorer health. Although it is estimated that reducing school suspension rates in Texas would save the state up to $1 billion in social costs, only one study to date has linked these two bodies of research. The current study addresses some of the limitations of that study by (1) estimating a stronger causal model of the effects suspension has on dropping out of school, (2) calculating a more comprehensive set of the social costs associated with dropping out, and (3) estimating the cost of school suspensions in Florida and California, and for the U.S. as a whole. The results show that suspensions in 10th grade alone produced more than 67,000 dropouts in the U.S. and generated social costs to the nation of more than $35 billion. These results are undoubtedly conservative, since the California and U.S. estimates were limited to 10th-grade students, while the Florida estimates were limited to 9th-grade students. Thus, they did not capture the effects of suspensions in earlier grades.
The study is reminiscent of (albeit distinct from) a 2013 report by law enforcement officials titled I'm the Guy You Pay Later. That report emphasized that a
10-year investment in preschool will produce over 2 million additional high school graduates. And if we can reduce the number of young people who commit felonies and the number who are incarcerated by 10 percent each – roughly half the reduction achieved by the Chicago Child-Parent Center program – we can reduce the number of individuals who are locked up by 200,000 each year. The resulting savings – $75 billion over the 10-year investment – could pay the federal costs of the preschool program.
Together, these two studies further the core thesis of my book, Ending Zero Tolerance, which is that school quality and discipline are inextricably intertwined. A primary solution to school quality failures is improving the school discipline system (which means taking approaches that are the opposite of zero tolerance) and a primary solution to school discipline is improving school quality and services. The back-end payoffs are enormous. Unfortunately, the dominant narratives treat these issues as separate and distinct.
Wednesday, October 12, 2016
Last year, advocates filed a lawsuit in Massachusetts that attempted to use the state education clause and school finance precedent to declare a cap on charter schools unconstitutional. The theory was that many current schools were so bad that they deprived students of a quality education. Since quality charter schools were down the road and could be expanded, the remedy was to grant students the access to more charter schools, which would require lifting the statutory cap on them. The theory, in many respects, resembled the strategy of the constitutional challenge to teacher tenure in California.
Last week, the trial court in Massachusetts dismissed the charter case. The court reasoned that the education clause does not create an individual right to education and, thus, does not create an individual right to demand access to other school opportunities and facilities. Rather, the education clause creates a duty on the part of the state to create a constitutionally adequate education system. Exactly how it does that is a matter of legislative policy and discretion, to which courts should defer. Plaintiffs' attempt to have the court insert their legislative preferences for those of the state is misguided.
I would generally agree with this basic rationale and certainly agree that plaintiffs' claims were a misguided use of the education clause. Their claim was really policy advocacy masquerading and constitutional analysis. With that said, I would caution the need for a little more nuance in dismissing such cases.
First, as I outline here, the notion of an education duty with no corresponding education right is highly problematic. If the state has a duty, it should be to someone or some group. While the Massachusetts trial court is correct that this does not mean that each individual student can demand individualized education, the constitution should require that the state create policies that ensure that the educational needs of individual students and students as a whole are met. If a policy is consistently denying students education, they should be able to challenge it and receive some sort of remedy. The duty-right distinction in other cases has been used as subterfuge to release the state from doing anything. Since there is no right, court can reason there is no basis for compelling the state to undertake its duty. The idea that this court might be adding support for that argument is worrying.
Second, the problem is particularly acute in school discipline and school finance cases. In discipline cases, some courts have used the duty-right distinction to flatly reject plaintiffs attempts to rely on their state's education clause to challenge suspension and expulsion. As a result, states can operate discipline systems that I argue here and here are entirely inconsistent with their duty to deliver equal and adequate education opportunities. In addition, in the traditional school finance case, there are numerous examples of states simply refusing to implement the remedies that courts have ordered. South Carolina, Kansas, and Washington immediately come to mind as examples in the past year. James Ryan and I have separately argued that when the state refuses to carry out its duty to implement a remedy to constitutional violations, it is within courts' power and responsibility to grant students immediate relief. This might be in the form of the right to exit their current public school and enroll in another public school. In other words, it should be beyond the state's discretion to force a student to remain in a school that the state refuses to bring up to constitutional standards. To be clear, however, this is not to say that caps on charters or student assignment statutes are unconstitutional or that students or their attorneys have the right to dictate where they should go to school. The point is simply that if the conditions in a particular school are unconstitutional, the state owes the students a remedy. If states, after the opportunity to do so, refuse to implement a remedy, courts can and should exercise injunctive relief on behalf of students.
For those less interested in doctrinal nuances, the trial court holding got it right: the cap on charter schools does not present a constitutional problem. Nonetheless, the initial lawsuit was enough to help get the issue of eliminating the cap on the ballot this November. So voters will get the final say. Recent polls indicate voters are against lifting the cap.
Tuesday, October 11, 2016
My forthcoming article Abandoning the Federal Role in Education: The Every Student Succeeds Act, California Law Review (2017), is available on ssrn. I offer this summary in the abstract:
Congress recently passed the Every Student Succeeds Act (ESSA), redefining the role of the federal government in education. The ESSA attempted to appease popular sentiment against the No Child Left Behind Act’s (NCLB) overreliance on standardized testing and punitive sanctions. But in overturning those aspects of NCLB, Congress failed to devise a system that was any better. Congress simply stripped the federal government of regulatory power and vastly expanded state discretion. For the first time in fifty years, the federal government now lacks the ability to prompt improvements in student achievement or to demand equal resources for low-income students. Thus, the ESSA rests on a bold premise: states will abandon their historical tendencies by voluntarily providing low-income students with equal educational opportunities.
Although the ESSA remains committed to equality on its face, it does the opposite in practice. First, the ESSA affords states wide latitude on student performance, accountability, and school reform. Wide state discretion opens the door to fifty disparate state systems, none of which guarantee equality. Second, the ESSA directly weakens two existing equity standards and leaves untouched a loophole that exempts eighty percent of school expenditures from equity analysis. Third, the ESSA leaves federal funding flat, eliminating the possibility that additional resources will offset the inequalities that the foregoing provisions permit. These changes to federal education law are so out of character that they beg the question of why the federal government is even involved in education at all.
Although Congress is unlikely to repeal the ESSA just months after passing it, it is set to expire by its own terms after four years. This Article proposes that Congress cure the ESSA’s flaws by increasing the federal investment in education to: 1) create the leverage needed for states to accept federal prohibitions on unequal funding practices; and 2) meet the outstanding needs of low-income students.
Monday, October 10, 2016
CALL FOR PAPERS
Children’s Legal Rights Journal
Submission Details. We invite you to submit articles that address any of the prominent and current issues that impact children. Articles should be received by December 1, 2016. Submissions should be previously unpublished pieces based on original work. All submissions should be between 15 and 60 pages (doublespaced) and in Bluebook format.
About the CLRJ. The Children’s Legal Rights Journal is a national journal sponsored by Loyola University Chicago School of Law in cooperation with the National Association of Counsel for Children. We publish articles on a variety of children’s legal issues and we are the only journal in the country specifically addressing legal needs of children.
Contact Information. All submissions and questions can be sent directly to CHILDLRJ@LUC.EDU. Please do not hesitate to contact us with any questions. You can also contact CLRJ via mail and facsimile:
Erika C. Weaver
25 E. Pearson, 11th Floor
Chicago, IL 60611
Tuesday, October 4, 2016
Last fall, teacher shortages swept states across the nation and caught the attention of major media outlets. Linda Darling-Hammond, Leib Sutcher, and Desiree Carver-Thomas's new essay in Huffington Post reminds us that the shortages are far from over. This fall is bringing a spate of stories similar to last year. As they write:
After years of layoffs during the fiscal recession, an upturn in the economy has allowed districts to begin hiring again. The problem is that many districts cannot find qualified teachers to fill the new positions. . . .
Teacher shortages were the topic of a recent gubernatorial debate in Indiana, with the Democratic challenger blaming the policies of the former governor for current shortages, while his Republican opponent pointed to a national crisis as a source of Indiana’s woes. With more than 40 states, plus the District of Columbia, reporting severe shortages in special education, math, and science, and states reporting the hiring of substitutes and individuals without credentials by the thousands, a national shortage seems plausible. Last spring, Indiana Governor Pence (now a vice-presidential candidate) signed into law a major scholarship bill subsidizing the preparation of prospective teachers in an effort to boost supply.
Two weeks ago, the Learning Policy Institute (LPI) released a report on teacher supply and demand that examines the data behind these shortages. We set out to understand the sources of these difficulties and what might be done to resolve them.
They also offer a set of solutions:
- Creating competitive, equitable compensation packages that allow teachers to make a reasonable living across all kinds of communities.
- Enhancing the supply of qualified teachers for high-need fields and locations through targeted training subsidies and high-retention pathways.
- Improving teacher retention, especially in hard-to-staff schools, through improved mentoring, induction, working conditions, and career development.
- Developing a national teacher supply market that can facilitate getting and keeping teachers in the places they are needed over the course of their careers.
To my relief, these solutions are very similar to those I pose in Taking Teacher Quality Seriously. The problem, I point out, is that past reforms have been premised on silver bullet solutions. Courts, moreover, have often encouraged this type of thinking. The needs of our students, teachers, and their learning environments are too complex for singular solutions.
Friday, September 30, 2016
The Education Law Center offered this summary yesterday:
Education Law Center welcomes the Nevada Supreme Court decision in Lopez v. Schwartz firmly declaring the state's Education Savings Account (ESA) voucher program unconstitutional and permanently blocking its implementation.
The Court's ruling makes clear that the Nevada Legislature violated a constitutional prohibition against the use of public education funding for any purpose other than the operation of the public schools. The ESA voucher program would have diverted funds from the public schools for private education expenditures.
This decision strikes at the heart of the ESA voucher program, which was designed to remove significant amounts of funding from public school budgets to pay for private school tuition and other expenses, even for the wealthy. The court's sweeping ruling permanently blocks the program from being implemented in the future.
"The Court confirmed that the parent plaintiffs' claims were correct - the state constitution expressly directs that funds appropriated by the Legislature for public education be used for that purpose and that purpose alone," said David G. Sciarra, ELC Executive Director, and, along with ELC attorney Jessica Levin, a member of the pro bono legal team representing Nevada parents and children in the voucher lawsuit.
ELC is a partner in Educate Nevada Now (ENN), a Nevada campaign in support of public education founded by the Rogers Foundation. ENN and the Rogers Foundation provided crucial support in the voucher lawsuit. With implementation of the voucher program now blocked, ELC will continue to work with ENN and the Rogers Foundation to improve the educational experiences of the half million children in Nevada's public schools.
For more information about Lopez v. Schwartz, please visit these ELC web pages.
While these cases challenging the use and misuse of public education funds have been muddled over the years, I get the sense that recent courts have been slightly more willing to consider seriously the problem of using funds that state constitutional clauses commit to public schools for vouchers and charters. Recall last year that the Washington Supreme Court struck down a the state's charter statute because of the conflicts it created in regard to the states constitutional obligations in regard to traditional public schools. Unfortunately, courts have been less willing to seriously consider the constitutional problems that arise when states simply underfund public schools as a general principles. See here.
Get the recent Nevada Supreme Court decision here: Download 16-30306
Thursday, September 29, 2016
At Education Week's School Law Blog, Mark Walsh covers the U.S. Supreme Court's cert grant today in Endrew F. v. Douglas County School District RE-1 (No. 15-827), in which the Court may resolve a circuit split on the issue of what level of educational benefit must a child receive under his or her individualized education program, or IEP, for a school district to have provided a free appropriate public education under the Individuals with Disabilities Education Act? Walsh's article is below:
The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled last year in the case of a Colorado child with autism that because the child's public school IEP had provided him with "some educational benefit," the Douglas County district had provided a "free, appropriate public education" under the IDEA. The 10th Circuit court thus rejected a private school reimbursement for the parents of the boy identified as Endrew F. after the parents had pulled him from public school amid the dispute over his 5th grade IEP.
In an August 2015 decision, the 10th Circuit court panel acknowledged that several other federal courts of appeals have adopted a higher standard that requires an IEP to result in a "meaningful educational benefit." But the 10th Circuit, agreeing with a lower court in Endrew F.'s case, said that a key 1982 Supreme Court precedent on special education, Board of Education of the Hendrick Hudson Central School District v. Rowley, merely requires an IEP to provide "some educational benefit."
"The courts of appeals are in disarray over the level of educational benefit that school districts must confer on children with disabilities to provide them with a free appropriate public education under the IDEA," says the appeal filed on behalf of Endrew F. and his parents by his Denver lawyers and the Supreme Court Litigation Clinic at Stanford Law School. "This court should use this case—which cleanly presents the legal issue on a well-developed set of facts—to resolve the conflict over this important question."
In May, the Supreme Court invited the U.S. solicitor general to file a brief expressing the views of the Obama administration. On Aug. 18, Acting Solicitor General Ian H. Gershengorn filed a brief that urged the justices to take up the appeal.
"This court should grant certiorari and overturn the 10th Circuit's erroneous holding that states must provide children with disabilities educational benefits that are 'merely ... more than de minimis' in order to comply with the IDEA," the brief states. "The 10th Circuit's approach is not consistent with the text, structure, or purpose of the IDEA; it conflicts with important aspects of this court's decision in ... Rowley, and it has the effect of depriving children with disabilities of the benefits Congress has granted them by law."
Lawyers for the Douglas County district argued in briefs, including one filed in response to the solicitor general's recommendation to grant review, that the asserted split among the federal appeals courts is "shallow" and that only the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, "has consistently applied a purportedly more demanding 'meaningful benefit' standard."
"The government contends that the IDEA demands something 'more robust'" than the "some benefit" standard, says the school district brief. "The question is whether a state has satisfied its substantive obligations if the IEP it offers provides a child more than a de minimis educational benefit. Under Rowley the answer is yes."
Despite the district's arguments, the Supreme Court on Sept. 29 granted review, one of eight cases the justices added to their docket just before the formal start of their new term on Oct. 3.
The Endrew F. case is likely to be argued sometime early next year.
Wallet Hub recently ranked the best and worst states to be a teacher. The states with the lowest cost adjusted salaries are:
- Hawaii — $34,063
- South Dakota — $41,000
- Maine — $43,792
- West Virginia — $44,337
- Arizona — $46,029
Business Insider pointed out that "the two lowest-paying states happen to be on opposite ends of the cost-of-living spectrum: While Hawaii is notoriously expensive, South Dakota often ranks as one of the cheaper places to live in America."
It is also worth filtering these states through the lens of school finance litigation. New Jersey ranks as the best place to teach and, incidentally, has had the most effective school finance litigation in the nation. Illinois and Virginia, however, rank as the 3rd and 6th best states and yet have had some of the most miserable school finance results, with courts never acting to enforce their constitutions in any respect. The same could be said of Pennsylvania, which ranked 12.
At the bottom of the ranking is a more consistent list of states that have not experienced wins in school finance litigation or where courts have recently refused to enforce earlier decisions. Looking at the bottom and top of the list together, one might posit that the presence of school finance litigation and victories alone do not lead to good teaching environments, but the absence of litigation victories make poor environments more likely. Running that complicated analysis is beyond the scope of this short essay, but another more likely possibility is that most courts have simply mismanaged the issue of teachers in the context of school finance litigation. Thus, winning or loosing a school finance case has relatively little effect on the issues that matter the most in teaching.
In Taking Teacher Quality Seriously, I argue:
Although access to quality teachers is one of the most important aspects of a quality education, explicit concern with teacher quality too often has been conspicuously absent from past [court decisions] over the right to education. Instead, past [court decisions have] focused more on the broader question of funding. Though that litigation has narrowed gross funding gaps between schools in many states, it has not been enough to change what matters most: access to quality teachers.
This Article proposes that courts ensure access to quality teaching rather than the more amorphous right to adequate educational opportunities. The recent constitutional challenge to tenure suggests a theoretical step in this direction, but the focus on teacher tenure alone is misplaced. Eliminating tenure, without addressing more important fundamental challenges for the teaching profession, may just make matters worse. Thus, this Article argues for a broader intervention strategy that focuses on whether states equally distribute existing quality teachers and whether states take the various steps necessary to ensure the supply of quality teachers.
A more detailed discussion of the key issues involved in improving teaching quality is available here.
Monday, September 26, 2016
Lawrence Hurly reported for Reuters yesterday that the U.S. Supreme Court may be reluctant to take up Gloucester Co. Sch. Bd. v. G.G., the case of 17-year-old transgender student Gavin Grimm, who was barred by his school from using the the boys’ restroom at school, despite him having a state ID that identifies him as male. This upcoming school year, Grimm will have to use a separate single-stall restroom. On August 3, the Supreme Court granted an emergency stay recalling the mandate of the Fourth Circuit Court of Appeals that would have allowed Grimm to use a bathroom congruent with his gender identity. The stay reinstated the the Eastern District of Virginia's June 2016 preliminary injunction order denying Grimm's request to use the boys’ restroom. Hurly predicts that the short-handed Supreme Court will be cautious about granting certiorari, particularly because the decision could end in a 4-4 deadlock and because the Fourth Circuit's ruling was the first decision of its kind in the federal circuits. Hurly's article is here.
Friday, September 23, 2016
The issue of discipline reform is beginning to gain traction in Connecticut and WNPR in Connecticut put together a nice hour-long show on school discipline. My opinion is slightly biased since I was able to participate, but I was joined by a lot of great people who add real depth to the issues. The guests include:
- Derek W. Black - Professor of Law at the University of South Carolina School of Law and author of Ending Zero Tolerance: The Crisis of Absolute School Discipline.
- Mickey Kramer - Associate Child Advocate for the State of Connecticut
- George Sugai - Professor of Special Education at the University of Connecticut Neag School of Education, Director of the Center for Behavioral Education & Research, Co- Director of the Center of Positive Behavioral Interventions & Supports
- Catherine Foley Geib - Assistant Director of Juvenile and Family Services at the Connecticut Judicial Branch
Download or listen to the show here.
Wednesday, September 21, 2016
First Circuit Holds That Voting District Does Not Have To Be Redrawn In "Prison Gerrymandering" Case
The U.S. Circuit Court of Appeals for the First Circuit ruled Tuesday that a city did not have to redraw its district lines for school committee and city council seats when one ward of the city included prisoners in a state correctional institution, many of whom are barred from voting. In overturning a federal district court ruling earlier this year holding that Cranston, R.I.'s inclusion of a prison population in a voting district violated the Equal Protection Clause, the First Circuit instead relied on the Supreme Court's decision in Evenwel v. Abbott (2016), which held that the "one person, one vote" principle allows a state to design its legislative districts based on total population. The First Circuit case arose when plaintiffs represented by the American Civil Liberties Union sued the City of Cranston when it decided to count the more than three thousand inmates at the state Adult Correctional Institution in Cranston's Ward 6. The inmates accounted for a quarter of Ward 6’s total population even though under state law, the prisoners were actually residents of their home counties for most other legal purposes, including voting, for those serving a non-felony sentence. The plaintiffs contended that including the prison population inflated Ward 6 constituents' voting power to the level as the other wards even though Ward 6 had fewer residents who had a political interest in local elections. The First Circuit rejected those arguments, noting the that the Supreme Court has deferred to state legislative decisions that included non-voters, such as transients or persons denied the vote, as part of districts' population "so long as the apportionment scheme does not involve invidious discrimination." The case is Davidson v. City of Cranston, No. 16-1692 (1st. Cir. Sept. 21, 2016).
New York Trial Court Dismisses Charges That State Underfunded Small City Schools to the Tune of $1.1 Billion
On Monday, a New York trial court ruled in favor of the state in what has been called the Small Cities School Funding litigation. The plaintiffs’ claim centered on a couple of key facts. First, New York’s highest court previously held that the state was obligated to provide students with a sound basic education and that adequate funding was part of that duty. Thus, the court directed the state to reform its funding system and devise a system reasonably calculated to achieve that end.
Second, one of the ways of doing so was to engage in fact based analysis of the cost of meeting student need. The method the state settled on was a model schools approach that looked at what the most economically efficient and successful schools were spending on education. From this, the state could identify a base cost for education and then apply additional weights to account for variances in local costs and demographics. Third, in in 2007-08, the state adopted a budget based on this method. Fourth, in 2009, the state froze the budget and enacted new cuts. Fifth, since then, glaring deficiencies in educational quality have risen in the district.
The premise behind plaintiffs’ theory, as I see it, is clear. If the 2007-08 budget was adequate, subsequent reductions necessarily raise the possibility of a constitutional violation. If the 2007-08 budget only met the most minimal level of adequacy, a reduction would be a clear constitutional violation. If the 2007-08 budget exceeded minimal adequacy, a reduction, depending on its size, might also violate the constitution. According to plaintiffs’, the reduction in the eight plaintiff districts amounted to 1.1 billion over five years. At that size, it would seem altogether likely that the funding had dipped below adequate. Plaintiffs', of course, introduced weeks of evidence to demonstrate this point at the local level. In particular, they sought to show low outcomes, glaring deficiencies in the essential resources previously outlined by higher courts, and a lack of funding caused both the input and output deficiencies.
The trial court decision, however, frames plaintiffs’ claims differently, indicating that plaintiffs’ position was that the state is prohibited from reducing its budget once it is enacted. I suppose one could state it that way, but this ignores the context in which plaintiffs’ claims arose. The issue was not simply whether the state could reduce or freeze its budget but whether a budget that comes in well under the state’s own estimation of a rational and adequate budget is unconstitutional. In other words, can the state fund education at level that it, in effect, has admitted is below adequacy. Moreover, implicit admissions aside, plaintiffs sought to affirmatively show that educational inputs and outputs were producing a constitutional violations (regardless of what budget the state did or did not adopt in 2007 and beyond).
Another way of viewing the case is through burdens of proof. Generally speaking, the burden of proof is on plaintiffs to demonstrate a constitutional violation. This case, however, offers an excellent example of when the burden of proof might more appropriately rest on the state. As I detail elsewhere, school finance violations appear to have run rampant during and after the recession. Part of the problem is that states believed or knew they could get away with it. They could under-fund education for years and, worse case scenario, plaintiffs would be tasked with a number of difficult evidentiary burdens that would take even more years to sort out. Even when plaintiffs establish their case, courts have not forced states to retroactively fill budget gaps that they create. It is enough to fix them moving forward.
As a result, state legislatures may have little incentive to actually comply with constitutional obligation in regard to education. In my article Averting Educational Crisis, I argue that, among other things, courts should begin adopting bright line prospective rules and obligations so that states clearly know what actions they cannot take. This would also justify courts stepping in sooner and more clearly when states default on their obligations. I also argue that “courts must prompt states to improve the structure of their education decision-making process and planning.” One of those key processes is an empirically informed basis for school budgets. A model schools approach, as in the Smalls Schools litigation, is a good example. The key, however, is that when the state acts contrary to its own processes and knowledge about funding, that action should be prima facie evidence of a constitutional violation. Here, the trial court treated it as functionally irrelevant.
Tuesday, September 20, 2016
Professor Jim Hilbert (Mitchell Hamline) has posted Restoring the Promise of Brown: Using State Constitutional Law to Challenge School Segregation on SSRN that discusses how constitutional claims can reanimate Brown and address school segregation. The abstract is below:
Despite over six decades of litigation, both state and federal court strategies have largely failed to address inequalities and segregation in America’s schools. More than sixty years after Brown v. Board of Education, our schools are still deeply unequal, and school segregation has generally been increasing over the past several decades. In both academic and social outcomes, students in these segregated schools lag far behind their peers.
This article examines the viability of using state constitutional law to address school segregation. For more than forty years, state courts have played a major role and have had varied success in addressing issues of educational inequality under school finance and educational adequacy theories. A handful of cases have used state constitutional law to challenge school segregation, including a brand new case, Cruz-Guzman v. State of Minnesota, which restarts the discussion on how best to restore the original promise of Brown.
Federal courts long ago departed sharply from the initial promise of the Brown decision and have spent the last few decades undermining desegregation. While hailed as one of the Supreme Court’s greatest accomplishments, the iconic Brown decision has been largely dismantled. Yet the goals of Brown remain a priority.Educational adequacy cases targeting school segregation in some respects are a combination of the best of federal and state courts. Such potential cases represent the next logical step in addressing inequality in our schools, combining the many advantages of state court litigation with the original promise of Brown.
Mark Paige's new book, Building a Better Teacher: Understanding Value-Added Models in the Law of Teacher Evaluation, is now available here. The promotional materials offer this description:
Mark Paige takes an in-depth look at the interaction of Value Added Models (VAMs) and the law of teacher evaluation. It notes that the hasty adoption of VAMs in evaluation and employment law actually complicates efforts to improve teacher quality, especially at the local level. In brief, VAMs’ costs vastly outweigh their benefits. The book advocates for a complete removal of VAMs in high-stakes decisions. It sets forth numerous recommendations for administrators and policymakers to enable them to effectively deal with the complications created by VAMs.
The book is not simply a criticism of VAMs. It projects a number of solutions for those seeking to improve teacher evaluation. In particular, it recommends the use of a particular method of collective bargaining (interest based bargaining) as a tool to improve evaluation at the local level and empower local stakeholders. The book serves a cautionary message to policymakers and lawmakers: they should exercise extreme caution - now and in the future - before codifying such high stakes policies like VAMs to avoid significant unintended consequences. Paige notes that VAMs' technical faults contribute to the decline of morale among teachers and have the potential to discourage many from entering the profession -- something that may discourage the best teachers from taking on the toughest teaching assignments. In this light, the questionable "reward" of using VAMs in high-stakes matters is outweighed by the risks. He also comments on the role of courts in abolishing VAMs and educational policy in general. With respect to VAMs, he notes that efforts to abolish their use have had a greater success in state legislatures than courts, but court action has been an important mechanism to activate popular opinion around the issue.
The book is definitely a must read for those closely following the court battles over teacher tenure. As emphasized here, the overconfident belief in the predicative power of VAMs was at the heart of Vergara v. State, which triggered a national litigation movement against teacher tenure. Vergara, as well as newer lawsuits in New York and Minnesota, ask courts to declare teacher tenure an unconstitutional impediment to a quality education. Their assumption is that VAMs can reliably tell us who the worst teachers are and, were it not for tenure laws, districts could remove them and improve education. Unfortunately, neither is true.
This is not to say, however, that improvements in teacher quality are out of reach. Quality teaching is central to quality education and we have a long way to go. Both the opponents of tenure and scholars like myself and Paige would agree on that point. The disagreement is most often over how we get there. I would say Paige tries to find the middle ground.
Monday, September 19, 2016
The steps include a new website on religious discrimination, an updated civil rights complaint form, an expanded survey of America's public schools on religious-based bullying, technical assistance for schools, and recent outreach on confronting religious harassment in education.
"Students of all religions should feel safe, welcome and valued in our nation's schools," said Assistant Secretary for Civil Rights Catherine E. Lhamon. "We will continue to work with schools and communities to stop discrimination and harassment so that all students have an equal opportunity to participate in school no matter who they are, where they come from or which faith, if any, they subscribe to."
Wednesday, September 14, 2016
On September 7, Superior Court Judge Thomas Moukawser issued his post-trial decision, in Connecticut Coalition for Justice in Education Funding (CCJEF) v. Rell, finding that the state was not fulfilling its duty under the state constitution to provide children with a fair opportunity for a high school education, and ordering the state to submit remedial proposals within 180 days.
The court articulated a constitutional standard that requires the state to provide funding and resources to meet student need. The court wrote that "the state must at least deploy in its schools resources and standards" substantially rational and connected to teaching children and "things known to meet children's needs."
The court concluded that many of the state's education policies are irrational. "For instance," the court observed,
the state spends billions of dollars on schools without any binding principle guaranteeing that education aid goes where it's needed. During the recent budget crisis, this left rich schools robbing millions of dollars from poor schools. ... Instead of the state honoring its promise of adequate schools, [it] has left rich school districts to flourish and poor school districts to flounder ... [and] the system cannot work unless the state sticks to an honest formula that delivers funding according to local need.
Despite these statements, however, the court articulated and followed "a low constitutional threshold," based on its understanding of the plurality plus one (4-3) CCJEF remand order from the Connecticut Supreme Court. But, the court appears to have missed much of the supreme court's instruction and failed to fulfill its expectation that the trial court would flesh out the resources needed to meet the supreme court's broad constitutional resource standards.
Tuesday, September 13, 2016
ACLU Files Suit against School That Handcuffed a Seven-Year-Old, Hearing Impaired Boy Who Cried Instead of Responding
The Missouri Branch of the American Civil Liberties Union has filed a lawsuit against Kansas City Public Schools in regard to the arrest of a Kalyb Primm Wiley. At the time, Kalyb was 7 years old, about 50 pounds and 4 feet tall. According to the complaint,
He had committed no crime, had threatened no one, and posed no imminent danger to anyone that necessitated Defendant Craddock to restrain plaintiff in handcuffs.
. . . .
Blog editor Derek W. Black's new book, Ending Zero Tolerance, The Crisis of Absolute School Discipline, is now available on Amazon and New York University Press. In the new book, Black challenges the judiciary to check schools' overreliance on severe disciplinary measures. From the book's summary:
In the era of zero tolerance, we are flooded with stories about schools issuing draconian punishments for relatively innocent behavior. One student was suspended for chewing a Pop-Tart into the shape of a gun. Another was expelled for cursing on social media from home. Suspension and expulsion rates have doubled over the past three decades as zero tolerance policies have become the normal response to a host of minor infractions that extend well beyond just drugs and weapons. Students from all demographic groups have suffered, but minority and special needs students have suffered the most. On average, middle and high schools suspend one out of four African American students at least once a year.
The effects of these policies are devastating. Just one suspension in the ninth grade doubles the likelihood that a student will drop out. Fifty percent of students who drop out are subsequently unemployed. Eighty percent of prisoners are high school drop outs. The risks associated with suspension and expulsion are so high that, as a practical matter, they amount to educational death penalties, not behavioral correction tools. Most important, punitive discipline policies undermine the quality of education that innocent bystanders receive as well—the exact opposite of what schools intend.
Ending Zero Tolerance answers the calls of grassroots communities pressing for integration and increased education funding with a complete rethinking of school discipline. Derek Black, a former attorney with the Lawyers’ Committee for Civil Rights Under Law, weaves stories about individual students, lessons from social science, and the outcomes of courts cases to unearth a shockingly irrational system of punishment. While schools and legislatures have proven unable and unwilling to amend their failing policies, Ending Zero Tolerance argues for constitutional protections to check abuses in school discipline and lays out theories by which courts should re-engage to enforce students’ rights and support broader reforms.