Thursday, January 28, 2016

ED Warns States That Excessive Opt-Outs Could Threaten Federal Funding

As Derek reported earlier this month, the Every Student Succeeds Act addressed the growing movement for parents to opt out of standardized testing for their children, some because they believe the tests are being used improperly and others because of perceived poor design. Today, the Washington Post's Answer Sheet reports on the Education Department's recent letter warning states that if more than 5% of their students opt-out of state-chosen accountability testing, a portion of those states' Title I grant funding could be withheld. The Post article is here.

January 28, 2016 in ESEA/NCLB, Federal policy | Permalink | Comments (0)

Tuesday, January 26, 2016

Supreme Court Grants Certitorari in Case Challenging Denial of Grant Funds to Religious School

The U.S. Supreme Court has granted certiorari in Trinity Lutheran Church v. Pauley, No. 15-577 (cert. grant. Jan. 15, 2016), which challenges Missouri's establishment clause barring the grant of public funds to a church.  The church sued Missouri officials after being denied a grant of waste management funds to resurface a school playground on church property. On appeal, the Eighth Circuit affirmed the dismissal of the church's suit, citing Missouri's "high wall" against religious entanglement. Cribbed from the Questions Presented summary:

Trinity Lutheran Church applied for Missouri's Scrap Tire Grant Program so that it could provide a safer playground for children who attend its daycare and for neighborhood children who use the playground after hours--a purely secular matter. But the state denied Trinity's application solely because it is a church. The Eighth Circuit affirmed that denial by equating a grant to resurface Trinity's playground using scrap tire material with funding the devotional training of clergy. The Eighth Circuit's decision was not faithful to this Court's ruling in Locke v. Davey, 540 U.S. 712 (2004), and deepened an existing circuit conflict. Three lower courts--two courts of appeals and one state supreme court--interpret Locke as justifying the exclusion of religion from a neutral aid program where no valid Establishment Clause concern exists. In contrast, two courts of appeals remain faithful to Locke and the unique historical concerns on which it relied.

The question presented is “[w]hether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.”

Mark Walsh at The School Law Blog notes the potential impact of this case and another cert. grant, Douglas Cnty. School Dist. v. Taxpayers for Public Education, which if interpreted broadly, may challenge "Blaine amendments" language in several state constitutions.

January 26, 2016 in Cases, First Amendment | Permalink | Comments (0)

Illinois Supreme Court Rejects Chicago Teachers' Challenge To "Do Not Hire" Designations In Personnel Files

And speaking of Chicago (from today's post), the Illinois Supreme Court recently held that the Illinois Educational Labor Relations Board (IELRB) did not have to arbitrate grievances over “Do Not Hire” (DNH) designations that were placed in probationary teachers’ personnel files without notice. From the opinion: The Chicago Teachers Union filed a claim with the IELRB that the Board of Education of the City of Chicago (Board) committed an unfair labor practice by refusing to arbitrate grievances over the DNH designations applied to probationary teachers. Probationary teachers were marked DNH when they were nonrenewed twice or who were given an unsatisfactory performance rating, but the school board did not tell teachers when they had a DNH designation in their personnel files. After a hearing, the IELRB found that the school board had violated the Illinois Educational Labor Relations Act, but the state court of appeals reversed that decision. The Illinois Supreme Court affirmed the court of appeals, finding that the grievances conflicted with the school board’s clear statutory authority to refuse to rehire probationary teachers, and  the board was not required to arbitrate those grievances under the Labor Relations Act. The opinion has a strong dissent from Justice Kilbride, who argued that the Labor Relations Board’s decision should have given greater administrative defererence, as “the IELRB did not clearly err in finding the DNH grievances in this case arbitrable under [] the Act.” The case is Bd. of Educ. of the City of Chicago v. Illinois Educational Labor Relations Board, 2015 IL 118043 (Ill. Dec. 19, 2015).

January 26, 2016 in Cases | Permalink | Comments (0)

Chicago Schools with the Most Disadvantaged Students Have the Most "Ineffective" Teachers, According to New Study

As detailed here, new teacher evaluation systems that measure teaching effectiveness based on students' achievement test scores are riddled with serious flaws.  One of the most obvious is the likelihood that those systems will simply rate teachers with the weakest/most challenged students as the most ineffective.  The hope of some, however, is that one might be able to demonstrate that districts are assigning teachers who are, in fact, the least effective to disadvantaged schools--a serious equity concern under both federal and state law. It is hard to say definitely which of these two possibilities a new study of Chicago schools reveals, but it tends toward the later.  Either way, it is bad for Chicago Schools.  The new study by the University of Chicago Consortium on School Research finds that:

teachers with the lowest scores on the REACH Students teacher evaluation system are overrepresented in schools serving the most disadvantaged students, while teachers with the highest observation scores are underrepresented in these schools.

The study uses data from the 2013-14 school year, which represents the first comprehensive snapshot of evaluation scores for Chicago Public School teachers under the new REACH Students teacher evaluation system. This includes value-added scores based on students’ gains on tests, as well as scores from observations of teaching practices in classrooms.

Continue reading

January 26, 2016 in Racial Integration and Diversity, Teachers | Permalink | Comments (0)

With the End of Desegregation, Twenty-five Percent of Wichita Schools Are One-Race

In 2007, mandatory desegregation ended in Wichita public schools.  Under mandatory desegregation, 688 minority students were assigned to schools outside of their immediate neighborhood.  In just seven years of post-desegregation policies, the number has fallen to 138.  The result is that one in four Wichita schools are one-race schools.  In 2013, the district applied for and received a magnet school grant from the U.S. Department of Education.  The grant, however, has been far too narrow in scope to make a dent in the problem, which belies another problem: districts want to diversify through magnets, but federal funds are few and far between.  In 2013, the Secretary made only 27 magnet school grants in 12 states. In fact, magnet school grants have been held flat for over a decade while funds for charters have increased exponentially. 

This has lead the superintendent in Wichita to, in effect, try to make separate equal.  Unfortunately, he, like many other policymakers, does not frame it that way or recognize the folly. Instead, "the superintendent, points to millions invested in new or expanded school buildings in northeast Wichita [(the minority community]. . . . Updated facilities, combined with standardized curriculum and professional development across the district, help ensure equity even if the racial balance at some schools is skewed."  More here.

January 26, 2016 in Racial Integration and Diversity | Permalink | Comments (0)

Monday, January 25, 2016

New York Plaintiffs Bring Novel Claim, Alleging State Must Step in to Stop a School Board's Abuses

Plaintiffs in East Ramapo, New York, have brought a unique claim against New York's Education Department.  They allege that it is liable for the local school board's mismanagement of the school district.  They argue that the school board is being driven by board members who send their children to private schools and do not have the public schools' interests at heart.  Plaintiffs rely on a number of recent third-party investigations and reports that document the school board's "fiscal mismanagement, misuse of funding and resources, and favoritism toward private school students," which have caused an inadequate and unqualified supply of teachers, denials of basic services for special needs students and English Language Learners, denials of access to music and art, and a shortage of equipment and supplies.  This mismanagement, they argue, deprives students' of the constitutional right to a sound basic education in the state.

This claim is analogous to a theory I forwarded here, arguing that local student assignment practices deprived students of their constitutional education rights and warranted legal action again the district.  The point was that many of the legal duties imposed on the state in school finance litigation also extend to the local district, assuming that the local district's actions are the cause of an educational deprivation.  The twist this new lawsuit includes is that, because the ultimate duty to ensure a constitutional education rests with the state, it is still the state that is obligated to step in and rectify local violations.  Thus, rather than asking a court to force the local board to rectify the violations, it asks that the court order to the state to intervene in the district.  This is a case to watch.  It is being litigated by the Education Law Center and O’Melveny & Myers, so it is sure to be well-handled.

January 25, 2016 in School Funding | Permalink | Comments (0)

Friday, January 22, 2016

Creating New Pathways to Equal Educational Opportunity

For those who missed it, Charles J. Ogletree and Kimberly Jenkins Robinson's edited volume, The Enduring Legacy of Rodriguez Creating New Pathways to Equal Educational Opportunity, is now out.   The book examines the long-term impacts of the Supreme Court's refusal to recognize education as a fundamental right in San Antonio Independent School District v. Rodriguez, detailing the extent of today's inequalities and connecting them to funding and segregation.  It also poses important questions like whether funding equality alone would have been enough to ensure equal educational opportunity and whether state based reforms have filled the gap created by Rodriguez.  The book closes with four chapters theorizing how the federal role in education today might be leveraged to address many of the lingering problems of Rodriguez.

In addition to chapters by the book's editors, it includes chapters by today's leading education and education law scholars: David Hinojosa, Camille Walsh, Michael Rebell, Amy Stuart Wells, David Sciarra, William Koski, Mildred Robinson, Genevieve Siegel-Hawley, Derek Black, and Erwin Chemerinsky.  The book is a must read for those looking for a holistic update and overview of the status of school funding and the federal role in education.  It could also easily serve as a major text for classes dealing with educational inequality.  While focusing on one overall subject, it approaches a diverse array of issues from different perspectives that could easily carry a couple weeks of class.

January 22, 2016 in Federal policy, School Funding | Permalink | Comments (0)

Thursday, January 21, 2016

What Does $300 Million in New Funds Mean for South Carolina's Schools? Not Enough

In 2014, South Carolina spent roughly $3.77 billion on elementary and secondary education. This figure also includes federal funding.  The governor's proposal to add $300 million to education a comes out to roughly an 8% increase in education spending.  As noted yesterday, that is still about $520 million below fully funding the state's existing finance formula.  The funding formula critique, however, offers little frame of reference to most.  The Center for Budget and Policy Priorities, however, has been doing a great job of tracking education expenditures over the past decade.  Their most recent report shows that education spending in South Carolina is still 10.4% below its pre-recession levels in 2008.  Based on that number, the current proposed increase would not even get the state back to where it was before the recession.  And to be absolutely clear, it was the underfunded and inadequate system prior to the recession that generated this litigation in the first instance.  In other words, the current budget increase, while important, would not appear to even get us back to our prior level of inadequacy.

To be fair, South Carolina, unlike most states, is exerting a relatively decent amount of effort to fund education.  Bruce Baker et al.'s most recent Funding Fairness Report Card indicates that South Carolina ranks 7th in terms of funding effort, which the report concludes is an "A" in normative terms.  Also, to South Carolina's credit, it does not have a regressive funding system that funds wealthy districts more than needy districts.  Its funding formula is roughly flat across districts.  The problem is that the districts that brought Abbeville v. State need far more than flat funding.  They need weighted funding that provides disadvantaged students 30% or more per pupil than the average student.  Thus, in normative terms, Baker's report rates South Carolina's funding distribution as a "C."  While Governor Haley does propose setting aside new funds for these needy districts, it is not a reworking of the formula itself, nor does it appear to be enough to give these students the boost they need.  My guess is that, even with these funds, South Carolina will come in at a "C" next year or narrowly make it into the "B-" range.

January 21, 2016 in School Funding | Permalink | Comments (0)

Wednesday, January 20, 2016

California District Court Permits Sexual Orientation Claim to Proceed Under Title IX

A California district has ruled that a claim alleging that athletic staff at Pepperdine University discriminated against two former students because of their perceived sexual orientation could proceed despite Pepperdine's argument that sexual orientation is not cognizable under Title IX. The district court in Videckis v. Pepperdine University, No. CV 15-00298 (C.D. Cal. Dec. 15, 2015), cited recent Equal Employment Opportunity Commission (EEOC) rulings that sexual orientation discrimination is covered under Title VII. In Videckis, two college athletes allege that the Pepperdine women's basketball staff harassed and discriminated against them because of the staff's belief that plaintiffs were lesbian. The plaintiffs claim that Pepperdine's coaching staff repeatedly asked them about their private sexual behavior and told the players that lesbianism would not be tolerated on the women's basketball team. Plaintiffs also claim that they were refused clearance to play basketball because of the coaching staff's discriminatory views against lesbians. In the order, the district court wrote that "[i]t is impossible to categorically separate "sexual orientation discrimination" from discrimination on the basis of sex or from gender stereotypes; to do so would result in a false choice. Simply put, to allege discrimination on the basis of sexuality is to state a Title IX claim on the basis of sex or gender." The plaintiffs also allege sex and gender stereotype discrimination and retaliation under Title IX.

January 20, 2016 in Cases, Gender | Permalink | Comments (0)

South Carolina's Plan to Remedy Educational Inadequacy

Late last month, the South Carolina legislature's task force on education reform released its recommendations.  The task force was formed by the Speaker of the House in response to the Supreme Court's finding that the state had failed to deliver a minimally adequate education as required by the state constitution.  The task force's job was to identify the causes of the state's educational inadequacies and propose solutions.  Its findings and proposals included:

  • creating a teacher, principal, and superintendent pipeline before the current shortage becomes critical.
  • setting goals for school leaders and metrics for measuring progress toward those goals, which includes all students reading at grade level by 3rd grade, individualized graduation plans for all 9th graders, and college and career readiness by the end of the 12th grade
  • intensive, immediate, and differentiated assistance for school districts labeled as "at-risk" or "below average"
  • efficiency and effectiveness studies of "at-risk" or "below average" districts
  • developing more expertise in Department of Education to assist local districts
  • increasing funding for districts with extreme poverty (a .30 growth in the current poverty weighting), with increased accountability for that funding
  • creating an infrastructure bank
  • in districts where students spend long periods on the bus, instituting technology on the buses to allow students to use that time productively.

This year the state is projected to bring in over a billion dollars in additional tax revenues. Last week, Governor Haley proposed allocating $300 million of those new revenues to education.  Over half of those education funds would go toward increasing the "base student cost" by $80.  Unfortunately, that amount would still leave the state well short of fully funding its 1977 formula adjusted annually for inflation. According to SCnow, fully funding the formula would cost $520 million more than Haley is proposing.  The rest of her education proposal includes $20 million for leasing or buying new school buses, $13.5 million for attracting and retaining teachers in impoverished districts, $29 million for technology, and $11 million in targeted technology spending in poor schools.

 Get the House's full report here.

January 20, 2016 in School Funding | Permalink | Comments (0)

Tuesday, January 19, 2016

Allegations of Abuse of Students with Disabilities Not Enough to "Shock Conscience" of the Sixth Circuit, by Mark Weber

The Sixth Circuit recently decided Domingo v. Kowalski, No. 14–3957, 2016 WL 76213 (6th Cir. Jan. 7, 2016). The court affirmed a grant of summary judgment against parents of three special education students on their claims against a special education teacher, her employer, and several officials with supervisory responsibility over her. The parents of one child alleged that nearly every day the teacher removed the six-year-old’s pants, placed her on a training toilet and left her there for as long as a quarter of the school day. The toilet was separated from the classroom only by a partition that students could walk around to see the child on the toilet. The teacher was alleged to have bound one misbehaving nine-year-old student to a gurney in the hallway outside the classroom and gagged him with a bandana, and on several occasions to have restrained him in a chair. She was also alleged to have strapped an eleven-year-old girl to a toilet, alone in the bathroom, for 20 to 30 minutes at a time. The teacher was also said to have a practice of grabbing disruptive students by the face, squeezing their cheeks and turning their heads toward her, and to have a practice of making students who were inattentive fold their arms on their desks, at which point the teacher would force their heads onto their arms. The parents supported their allegations with the statements of a teacher’s aide, though the defendants contested the accuracy of the aide’s account at various points and noted that the aide did not report several of the events until she received a layoff notice near the end of the school year.

The parents said the conduct of the teacher and the failure of the other defendants to act violated the students’ substantive due process rights, and they relied on the cause of action under 42 U.S.C. § 1983. In affirming summary judgment against the parents, the court applied the “shocks the conscience” standard. The court adapted a framework from Gottlieb v. Laurel Highlands School District, 272 F.3d 168 (3d Cir. 2001), and asked whether there was a pedagogical justification for the teacher’s conduct, whether the force was excessive to meet a legitimate objective, whether the conduct was done maliciously for the purpose of causing harm, and whether there was serious injury. It made analogies to various cases on each of the factors and ruled that the factors weighed in the teacher’s favor. The court said that its rejection of the due process claim against the teacher eliminated any basis for holding the supervisors or the school district liable.

The case is one of a large number determining that no reasonable jury could find that school personnel conduct shocks the conscience so as to violate due process. There are, however, cases that come to the opposite result with regard to conduct that looks similar or even less outrageous, for example, Alexander v. Lawrence County Board of Developmental Disabilities, 2012 WL 831769 (E.D. Tex. 2011) (placing student in basket holds and prone restraints), and Covey v. Lexington Public Schools, 2010 WL 5092781 (W.D. Okla. 2010) (demeaning students with disabilities in front of others and making them run laps and do calisthenics). Moreover, some recent physical and psychological abuse cases brought under a Fourth Amendment theory have been successful on summary judgment or dismissal motions, including Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175 (9th Cir. 2007) (grabbing and slapping of student and forcing him into a chair), and Doe v. Hawaii Department of Education, 334 F.3d 906 (9th Cir. 2003) (taping of second-grader’s head to a tree). It remains to be seen just what conduct the panel of the Sixth Circuit thinks could shock a jury’s conscience. Notably, one panel member, Judge Boggs, argued in a partial dissent that the claim over the binding and gagging of the nine-year-old ought to have gone to the jury.

January 19, 2016 in Discipline, Special Education | Permalink | Comments (0)

Friday, January 15, 2016

Scholarship on College Admissions for Asian American Students and Students With Criminal Records

The most recent issue of the Columbia Journal of Race and Law has a couple of pieces on the discriminatory impact that certain college admissions policies have on students of color. The abstracts are available in Volume 5 at the Journal's website.

Shawn Ho (Legal Service Officer, Singapore) adds to the scholarship on negative action against Asian American students in college admissions in A Critique of the Motivations Behind Negative Action Against Asian Americans in U.S. Universities: The Model Victims, 5 Colum. J. Race & L. 79 (2015). Ho writes, "the tensions arising from negative action flow from the Supreme Court’s adoption of a pure diversity rationale for affirmative action; it is necessary to have a more nuanced conception of college diversity that remains true to the spirit of remediation for America’s legacy of racial injustice while simultaneously seeking to dismantle stereotypes and racism." He also explores a potential motivation (however misguided) of admissions officials to limit the number of Asian-American admissions to protect Asian American students from racial resentment. 

In the student note, Bars to Education: The Use of Criminal History Information in College Admissions, 5 Colum. J. Race & L. 145, 146 (2015), Rebecca R. Ramaswamy make the case for limiting the use of criminal history information in college admissions and how "the purported educational necessity behind this practice can be achieved through less discriminatory means.

January 15, 2016 in Scholarship | Permalink | Comments (0)

Reconstituting the Right to Education

Joshua Weishart's forthcoming article, Reconstituting the Right to Education, is now available on ssrn here.  Consistent with his first article, it is very thoughtful.  I have already found it useful in three of my forthcoming projects.  His abstract indicates:

Confronting persistent and widening inequality in educational opportunity, advocates have regarded the right to education as a linchpin for reform. In the forty years since the Supreme Court relegated that right to the domain of state constitutional law, its power has surged and faded in litigation challenging state school finance systems. Like so many of the students it is meant to protect, however, the right to education has generally underachieved, in part because those wielding it have not always appreciated its distinctive forms and function.

Deconstructed, the right to education held by children has been formulated doctrinally as both a claim-right, imposing affirmative duties on the state to act, and an immunity, disabling certain state action. These two strands — oft-manifested as the claim-right to educational “adequacy” and an immunity entailing “equality” of educational opportunity — once considered irreconcilable are actually interlocked by the right’s core, historical function to protect children’s liberty and equality interests.

And yet the right to education is ill-equipped to fulfill its protection function. Education clauses in state constitutions do not fix the standards for mutually enforcing equality and adequacy. This encumbers already-reluctant courts in addressing educational disparities and emboldens legislative resistance when they do. Appreciating that the right to education has a protection function entailing equality and liberty interests nevertheless suggests that it can be adjudicated in a way that unifies the demands and guarantees of substantive due process and equal protection. That union holds the potential to ameliorate the enforcement standards thereby reconstituting the right to education as a mainstay of reform.

January 15, 2016 in School Funding | Permalink | Comments (0)

Thursday, January 14, 2016

The Every Student Succeeds Act's Random Additions: Charter Schools, Data Collection, Testing Limits, and Discipline

My prior post detailed the Act’s new approaches toward academic standards and accountability, teachers, funding, and the federal role in education.  The Act also included some other important changes and additions that do not fit into those categories.  These changes are one-offs that look like bones thrown to various different and competing constituencies (which is probably true of a few of the progressive changes I noted last time).  In other words, they are pet projects that helped the bill get passed.  These changes include for charter schools, data, test validity, test opt outs, and school discipline

Charter Schools

The act includes new competitive priorities for charter school grants.  For those unfamiliar with the term competitive priority, it means that states or districts that include certain policies in their competitive charter school grant application will receive extra points in the assessment of their plan.  As a practical matter, it makes it far more likely that they will receive a grant.  It also makes it highly unlikely that states and districts that do not include those policies will receive a grant.  In short, they are implicit mandates for those who want money.

So what are these special charter school policies?  They are exactly what charter advocates have been lobbying states to do, often with little success.  The priorities are for states that increase the number of entities in the state that can authorize new charters, states that give charters per pupil funding equivalent to that in traditional public schools, and states that give more robust support for charters in need of facilities.

Magnet Schools

Nothing really changed for magnet schools, and that is the point.  Magnet school financial support and policy has been stuck in neutral for nearly two decades.  By comparison, this means magnet schools are moving backward while charters rush forward.  There is, however, one potentially explicit retrogressive addition for magnets.  The Act seemingly requires or strongly prefers socio-economic integration over any other form of integration.  Socio-economic integration is, of course, immensely important.  The point here is the attempt to take race off the board—a position that the Bush Administration took, that the Obama Administration eventually retracted, and that has now resurfaced.

Important Data

The Act requires states to collect and submit far more detailed data, and the new data it seeks is important: funding and teachers.  This will be a boon to researchers attempting to drill deeper into problems of resource inequity.

Valid Tests (Potential Bombshell)

A provision of Title I indicates that states can only use the mandated tests for purposes for which they are valid.  To most, this may read as no more than technical jargon, but it is potentially the single most powerful provision in the bill for those who would seek to block the misuse of tests.  As I detail here, the tests on which states rely to run their teacher evaluation systems (value added models and student growth percentiles) are not valid for those purposes.  Others have also long raised validity problems with certain states use of high stakes tests for student graduation and promotion as well.  Who knows whether this was Congress’s intent, but the Act certainly would appear to have the effect of preventing states from using standardized tests for illegitimate purposes.  The question that remains is whether individual teachers or students could rely on this provision in litigation or whether it is up to the Secretary to enforce this provision through the administrative process.

Test Opt-Outs

The Act gives parents the right to opt their children out of standardized tests.  Opt-outs were big news last year, as large percentages of students refused to take tests in New York and New Jersey and the states scrambled not knowing whether the Department would hold this against the states.  The Act now specifically indicates that these opt-outs will not count against the state in determining the percentage of students who took the tests.

Discipline: Bullying and Suspensions

Finally, the Act gives a big boost to progressive discipline policy.  Previously, there was no such thing as general federal authority in regard to discipline.  The only foothold had been in regard to racial disparities in discipline (pursuant to Title VI).  The Act now specifies that states’ plans should include policies to reduce bullying, suspensions, and averse responses to student misbehavior.  The bullying provision is, likewise, significant because it is not limited gender or race based bullying--a big stumbling blocking in past enforcement efforts.  To be clear, however, this discipline provision operates within the larger structure that offers states’ enormous autonomy in their plans and severely limits the Secretary’s ability to reject a state plan.

January 14, 2016 in Bullying and Harassment, Charters and Vouchers, Discipline, ESEA/NCLB, Federal policy, Racial Integration and Diversity | Permalink | Comments (0)

Wednesday, January 13, 2016

Velte on Justice Found and Lost for Colorado's Schoolchildren

Prof. Kyle C. Velte (Texas Tech) examines the decade-long constitutional challenge to Colorado's school-finance system in  A Tale of Two Outcomes Justice Found and Lost for Colorado's Schoolchildren, 12 Legal Comm. & Rhetoric: JALWD 115, 115-17 (2015). Velte uses narrative theory to analyze Lobato v. State, in which school districts, schoolchildren, and their parents challenged the inequity between between Colorado's wealthy and poor school districts. From the introduction:

This is a story about a story. It is the story of a gripping trial, scores of pro bono attorneys collaborating--in a way rarely seen since the 1960s Civil Rights Movement--on a civil-rights case for justice, access, and equality for all of Colorado's schoolchildren. It is the story of the thrill of a historic win, and of an agonizing defeat. It is the story about school-finance litigation as the perfect frame for understanding the power of and importance of legal storytelling. In the end, this story about a story demonstrates that a story lost is justice lost. It illustrates that when courts choose not to hear the stories of plaintiffs in school-finance litigation, justice for those plaintiffs, and for all of the participants in the public-education system, is lost and the historic divides between wealthy and poor school districts continue in ways to deprive children in poor school districts with a constitutionally adequate education.

This article tells the story of one case--Lobato v. State, in which dozens of school districts, schoolchildren, and their parents challenged the constitutionality of Colorado's state-wide public school funding system--and analyzes the impact of the stories told in that case to both the trial court and the Colorado Supreme Court through the lens of narrative theory.

The article's goals are two-fold. First, it applies three, intersecting, story types--a “Story of the Parties,” a “Story of the Process,” and a “Story of the Law”--to analyze how judges are influenced by story and concludes that trial courts can be influenced through the use of a powerful justice narrative told through a Story of the Parties frame. Analysis of judges' acceptance or rejection of stories through a school-finance case study adds to scholars' and practitioners' understanding of the role of stories and “narrative reasoning” in both litigating and judging.

Second, the article posits that when compelling Plaintiff Stories are told in such cases, and when courts choose to hear those Plaintiff Stories and to elevate those stories over the Story of the Process and the Story of the Law, students and school districts will prevail. However, when, as in Lobato, courts choose to minimize--in fact, ignore--the call of those Plaintiff Stories and instead choose to elevate the call of “law” stories or “process” stories, the loss of Plaintiff Stories means the loss of justice or, at minimum, the delay or deferral of justice.

January 13, 2016 in Scholarship | Permalink | Comments (0)

Nevada Voucher Law Found Unconstitutional by Molly Hunter

Judge James Wilson of the First Judicial District Court of Nevada (Carson City) has ruled in Lopez v. Schwartz that the state's school voucher law (SB 302) enacted last summer by the Legislature violates two provisions of the Nevada Constitution. Judge Wilson issued a preliminary injunction to prevent the State from implementing the law.

The case challenging the voucher law was filed by parents of Nevada public school children from across the state. They argued that the program would divert scarce funding from public schools, triggering cuts to essential programs and services for their children and all other children attending Nevada's public schools.

The Court explained that the Nevada Constitution requires the Legislature to appropriate funds for the operation of the public schools, which "must only be used to fund the operation of the public schools." [Nevada Constitution, Article 11, Sections 6.1 and 6.2.] However, the Court continued, under the voucher law, if implemented, "some amount of general funds appropriated to fund ... the public schools will be diverted to fund" the vouchers for private school tuition and other uses.

Judge Wilson further found that the parents "have [proven] that SB 302 violates Article 11, Sections 6.1 and 6.2, and that irreparable harm will result if an injunction is not entered. Therefore an injunction will issue to enjoin Treasurer Schwartz," who is charged with implementing the law, from doing so.

“Not only the plaintiffs won today,” said Sylvia Lazos, Policy Director of Educate Nevada Now! (ENN), a campaign to strengthen Nevada public schools. “Judge Wilson’s ruling is a victory for all 460,000 public school children in Nevada, their parents, teachers, administrators and school board members. We are thrilled with the decision and look forward to continuing dialogue focused on improving our state’s education systems.”

"We're pleased that Judge Wilson found that the Legislature cannot take funding designated for the operation of the public schools and transfer that funding to private schools and other private education expenses," said David G. Sciarra, ELC Executive Director. ELC is a partner in the ENN campaign, along with the Las Vegas-based Rogers Foundation.

The Court will next schedule a trial on the merits.

The pro bono counsel team representing the parents in their lawsuit includes Education Law Center, Wolf, Rifkin, Shapiro, Schulman & Rabkin LLP based in Nevada; and, Munger, Tolles & Olson in Los Angeles.

The Attorney General is representing the State of Nevada and defending State Treasurer Dan Schwartz.

January 13, 2016 in Charters and Vouchers | Permalink | Comments (0)

Journal of Law and Education: Call for Papers

The Journal of Law & Education is currently accepting manuscripts for publication in its April, July, and October 2016 issues. Please submit manuscript and CV to jled@law.sc.edu .

January 13, 2016 | Permalink | Comments (0)

Tuesday, January 12, 2016

Oral Arguments Today In Friedrichs v. California Teachers Association

Guessing the outcome of a U.S. Supreme Court justice's vote based on what he or she says during oral arguments is a dicey proposition, but Justice Antonin Scalia left little doubt of his position today in Friedrichs v. California Teachers Association (CTA), Reuters reports. The Court will decide in Friedrichs whether the teacher-plaintiffs' free speech rights were violated by forcing them to pay the union "agency" fees for collective bargaining and other expenses that supported political causes with which the teachers disagree. During today's argument, Justice Scalia reportedly equated the CTA's collective bargaining duties to political activity such as lobbying. If Justice Scalia's comments reflect his view of the case, the CTA's hopes that he would side with the union as a public-sector employer have been dented. Without Justice Scalia's support, CTA would lose a crucial fifth vote on the Court.  The case may also decide the viability of the Court's 1977 decision in Abood v. Detroit Board of Education, in which the Court held that nonunion public sector employees could not be required to fund political activities to which they objected, but could be required to fund activities that benefitted all employees, such as collective bargaining, contract administration, and grievance procedures.

January 12, 2016 in Supreme Court, Teachers | Permalink | Comments (0)

The Every Student Succeeds Act: Eliminating Accountability, Handcuffing the Department of Education, and a Few Good But Optional Ideas

After having finally digested the new version of the Elementary and Secondary Education Act—the Every Student Succeeds Act—my overall appraisal is that the Act represents two steps back and half a step forward.  The steps backward are in regard to federal leadership, high expectations, and accountability.  The half steps forward are on various points that civil rights and other advocates have pressed for a decade or more.  But they are only half-steps because these civil rights “advances” are optional rather than mandatory.  Thus, they are more accurately “ideas” for states to consider, not actual advances students can expect to see.  Nonetheless, being ever the optimist, the very act of raising the ideas has the potential to prove important a decade for now when the Elementary and Secondary Education Act is again due for reauthorization.  It was, after all, the soft version of testing in the 1994 reauthorization (Improving America’s School Act) that paved the way for the 2002 reauthorization’s (No Child Left Behind Act) aggressive testing and accountability systems.

The easiest way to digest the new Act is to think specifically about what has changed and what has stayed the same.   A number of major things did remain the same:

  • The federal financial stake in education remained relatively flat. The new bill included a $500 million bump for Title I, but in the larger scheme, the increase is minor.  In 2002, NCLB included a major initial boost for Title I, which is what made the Act happen.  That no significant new funding is in the current Act may be a sign of how little progressive actions it contemplates.
  • The funding formulas through which Congress allocates Title I funds to states remained in place. Senator Burr had managed to get an amendment to the formulas into the final Senate bill, but it did not make it through reconciliation with the House.  More on this later.
  • The major aspects of the federal testing regime remain in place. States must test students in the same subjects (math, English Language Arts, and science) per the same schedule and frequency as was found in NCLB.  States and districts must also stick to the same reporting and demographic disaggregation as before.
  • The highest level articulation of the academic standards that students must meet remains the same: “challenging.” This was somewhat of a surprise given how maligned this phrase had been for its inability to ensure states adopted rigorous standards.  As discussed later, the bill indirectly addresses this issue in a new subsection that pegs “challenging” to career and college readiness.

The Act changed far more than it left the same.  Major changes were made to the substance and mechanisms for Accountability, the regulation of teachers, funding, and the Secretary and Department’s powers. 

Academic Accountability

As to the substance and mechanisms for accountability, the shift is from federal command and control to nearly complete state autonomy:

  • The metrics for whether states are offering quality education and ensuring sufficient student progress are now within the control of states. While the bill pegs “challenging” academic standards and assessment to college and career readiness, states do not have to actually submit the standards to the Department.  They need only give the Department assurances that their standards are challenging.  And as discussed later, the Secretary is extremely limited in objections he can raise to states’ education plans.
  • In terms of assessing student progress on standards, states must still consider test results, but states can afford as little weight to test results as they want and they can include almost any other metrics of academic progress and educational quality as they want (student engagement, teacher engagement, attendance, etc).
  • NCLB required that all students be proficient by 2014-15. That standard is go and is now replaced with anything, which is to say states can set their own progress goals.
  • NCLB also mandated particular interventions when schools failed to make adequate yearly progress toward full proficiency. By 2012, this meant that eighty percent of the nation’s schools were facing some sort of sanction.  Under the new bill, sanctions are few and far between.  Only those schools performing in the bottom 5% of the metrics that the state chooses will be subject to intervention and the particular interventions will be within the discretion of the state.  Equally notable is the fact that the portability of Title I funds for students attending a bottom 5% school did not make the bill.  In fact, the mandatory option of transfer (with or without funds) which was in NCLB is not in the current law.

Teachers

Changes for teachers are simple because there is almost no regulation of teachers at all in the law.

  • The requirement that all teachers of core subjects be high quality is gone.
  • Now states need only ensure that teachers are certified, but this includes alternative certification, which I read as meaning that if the state is willing to give some a piece of paper to teach, the person is certified. This, of course, has been a huge problem with recent teacher shortages.
  • During the waiver process, Secretary Duncan had mandated “effective” teaching, which was largely measure by a teacher’s students’ test scores. No such requirements exist in the new law.

Funding and Fairness

The most interesting developments in the law may be in regard to school funding.  While funding itself remained flat and the formulas went unchanged, the law included a tremendous amout of flexibility in how states spend federal dollars.  It also included a lot of progressive ideas about funding, although the adoption of the best of these ideas is entirely discretionary.  The bureaucratic and technical changes in funding include:

  • The law consolidates a lot of federal funds, issues more in the form of block grants, and lets states determine exactly how much they will devote to particular programs, activities, and schools.
  • The option to be treated as a “whole school,” meaning that Title I funds can be spent on activities that benefit the whole school not just low-income students, became a lot easier. Any school with 40% or more low income students can be a “whole school,” but even those falling below that threshold can apply for a waiver under a relatively lenient standard.
  • The federal requirements that states maintain their financial effort from the prior year and that federal dollars supplement, not supplant, local dollars have long been criticized as ineffective. The new law changes both standards, looking at a 2 year period on maintenance of effort rather than a 1 year period, and requiring states to affirmatively establish they have not supplanted local funds.  Whether either of these will be effective is unclear.  The language reads more specific than prior versions, but is still permissive in its general approach.

The eye-popping changes (for me) in funding include:

  • A requirement that states assess and address resource inequity in those bottom 5% schools it identifies. This also includes the ability to use school improvement grants (which is now a bigger pot of money) to address those resource inequities.  Ideologically this is huge line for the federal government to cross and provides a potential stepping stone for later expansions. Unfortunately, it only applies to intra-district resources and only to a small fraction of schools.  In other words, it leaves untouched the much bigger issues that get litigated in school finance cases.  Nonetheless, it does address an important loophole on comparability of resources that I have long criticized.  See here.
  • The law also includes a pilot program to support districts that want to adopt weighted student funding. This would help districts account for the varying costs of different demographic student groups and their needs.  Again, this is what school finance litigation demands.  The problem, however, is also the same: it applies only intra-district and to a small group of districts.  Even more problematic, the program relies on voluntary applications by districts.
  • The law responded to a decade of criticisms of the irrationality of the Title I funding formulas. See my criticisms here.  It does not mandate a change to the formulas, but if funds a professional evidence-based study of the formulas to determine who they advantage and disadvantage.  The study will propose changes to the formula if necessary. Whether those proposals are adopted are anyone’s guess.  Normally I would guess no, but much to my surprise, Senator Burr did manage to get a change to the formulas approved in the Senate bill (although it did not make the reconciliation bill).  Plus, the formulas are so irrational that they do not favor red or blue states, which makes change at least plausible.
  • The law maintained President Obama’s commitment of $250 million for pre-k. Our schools, of course, need far more than that, but it is important that this was not cut out of the bill.
  • Finally, the bill included a teacher pay-for-performance grant. I had thought this issue was going away, but maybe keeping it was part of the deal struck for doing away with teacher evaluation systems.

Secretarial Powers

Finally, the Secretary of Education was reduced to a line worker.  I argued here that Secretary Duncan lacked the statutory authority to impose the various conditions he attached to NCLB waivers and that to give a Secretary the ability to impose those sort of open-ended policy objectives would have been unconstitutional.  Someone must have agreed with me because no such powers exist in the current law.  The problem, however, is that this law overreacts to NCLB waivers, making this as much about Arne Duncan as it is about the proper role of the Secretary.  To say the Secretary should not act beyond his or her statutory and constitutional power is not to say the Secretary should have no power at all.  Yet, that is what this law does.  Under the law now:

  • The statutory bases upon which the Secretary can reject a state plan are very narrow.
  • If the Secretary plans to reject a state plan, the Secretary must specifically articulate the statutory basis and justify it.
  • After this, the state will get an opportunity to respond and resubmit. If the Secretary rejects the plan a second time, the state is entitled to a hearing.
  • In some instances, if the Secretary does not specifically reject a state plan within the required time frame, the law will treat the Secretary as having accepted the plan.
  • The Secretary cannot review or request changes to state’s academic standards. In other words, the whole common core standards/curriculum mess that came from the NCLB waiver is prohibited.
  • The Secretary cannot place conditions on state applications or consider criteria in making decisions that are not within the scope of the conditions and considerations of the Act itself. As I argued here, this was the fatal flaw in the NCLB waivers that render the conditions Duncan imposed beyond his statutory authority.
  • Nor can the Secretary attempt to indirectly achieve any of the forgoing prohibited objectives through policy guidance.

In short, the law sets up a system in which the presumption is that the states will get exactly what they want they want in their state plans and grants.  If somehow the Secretary manages to find a way to say now, a state will get multiple additional bites at the apple.

Size of the Department of Education

In conjunction with implementing the new provisions, the law directs the Secretary to specifically look at the work done and not done, needed and not needed, report on those findings, and reduce the size of the Department accordingly.  A smart Secretary can likely work around this, but this is clearly an attempt by Congress to shrink not just the power but the size of the Department, which presumably would further shrink its power.

Random Developments

Finally, the law includes lots of interesting and important additions that I would term as random rather than structural.  Those changes address charter schools, data, parents, and school discipline.  I will, however, leave those issues for later in the week.

January 12, 2016 in ESEA/NCLB, Federal policy, School Funding | Permalink | Comments (0)

Monday, January 11, 2016

Firing of New York City Teacher Raises First Amendment and Performance Issues

The story of teachers--or any employee for that matter--who spoke up on a controversial reason only to be later terminated for performance based reasons is an old one.  Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), was, of course, a due process case in which a professor on a one-year contract did not have his contract renewed.  The Court held he was not entitled to due process, but from Roth's perspective the case was about free speech, not due process, as he had taken up students' fight for racial equity on campus.  He claimed this was the reason for his non-renewal.

A recent firing of a New York City public school teacher, Jeena Lee-Walker, raises some of the same issues.  Her controversy centers around her decision to teach students about a group of wrongly convicted African American males.  Their story has been a source of major news in the city.  In a lawsuit challenging her termination, Lee-Walker says that when she first proposed to teach the subject her superiors indicated she should offer a more “balanced” approach to the case.  Otherwise, she might “rile up” the students and create little "riots." At their urging, she toned down her approach, but still presented the case in a way that she said led students to be very engaged in the subject matter.  

In the eighteen months following the episode, she received a series of bad performance reviews, which led to termination based on poor evaluations and insubordination.  As emphasized here, gauging "teaching effectiveness" based on student test scores--the method NYC uses--is methodologically flawed.  Litigation challenging the state's teacher evaluation system is currently underway.  What may be interesting in Lee-Walker's case is if she can turn her teacher evaluations against the state.  Valid or not--if her statistical outputs are strong--it will undermine the city's case.  If they are weak, she may be forced to challenge the evaluation method itself.  Otherwise, the state would appear to have an objective reason for the termination.  Regardless, issues of motivation and retaliation will only further complicate the case.  Sounds like a good hypothetical for class or a final exam.

More on the backstory here.

January 11, 2016 in First Amendment | Permalink | Comments (0)