Monday, December 5, 2016
According to local reports and the parents, an eleven-year-old honor roll student in Pembroke Pines, Florida, was suspended for six days when she used a children's knife to cut a peach and share it with a classmates. According to the family, the knife was as dull as a butter knife and was part of a set that looked something like this:
The girl's mother said that the knife is safe even for babies: “This is a set of a spoon, fork, and knife [is] for toddlers— one-year-old[s]. It is made for children to learn how to eat properly. She's used it since she was baby.”
With the media attention and the parents pushing back, the school reduced the suspension to three days, but they maintain the initial suspension was valid and it will remain on her record.
Unfortunately, this story is like countless others I describe in Ending Zero Tolerance: The Crisis of Absolute School Discipline. It is yet another example of the intolerability of zero tolerance policies and school officials refusing to consider very basic facts. On their face, the facts reveal 1) no real weapon; 2) no intent to break a rule; 3) no threat or danger to anyone; and 4) everyday benign behavior by a preteen. Based on these facts, it is far from clear that there is any legitimate basis upon which to suspend the student. It would appear that the basis for suspension is nothing more than "those are the rules."
That justification should be absurd enough on its face, but let me make it a bit clearer. Suppose that a school adopted the following rule: "students are prohibited from bringing black ink pens to school." There might be a good reason for the rule, such as the machine that the school uses to grade exams cannot distinguish students' black ink from that of the printed language on handouts. When students use black ink, it throws the whole grading system off. Thus, I would allow that schools could even take away those black ink pens for the day or, to encourage students to remember to not bring them, impose some small penalty like writing "I will not bring black pens to school" a couple hundred times.
Suspension, however, is a far cry worse. It would be hard to justify, under any concept of due process, the suspension of a student from bringing a black ink pen to school. Yet, this equivalent to the position this Florida school is adopting in suspending the girl for her children's butter knife. For that matter, under this current school's rationale, it could expel the student for the children's knife. Its rationale would likewise support expulsion for the black ink pen. Of course, the school would disavow this logical conclusion, but it is, in fact, the logic conclusion.
In Ending Zero Tolerance, I demonstrate why the constitution cannot permit this type of punishment and, instead, demands a more nuanced consideration of student misbehavior when school exclusion is at stake.
This story also offers another nuance to school discipline that I emphasize in the book: the physic harm that this type of irrational discipline imposes on the student. The girl's mother indicates that that her daughter is struggling to make sense of this experience and is afraid of making another mistake in school. Studies show that placing students in situations of fear and anxiety is not the way to make them behavior better. In fact, irrational discipline will make some rebel and misbehave more. Equally important, other studies show that fear and anxiety tends to spread to the "innocent bystanders" who have done nothing wrong and, when it does, it depresses their academic achievement--the exact opposite of what a school should want to do.
Friday, December 2, 2016
School Suspends a Student Who Was the Victim of Violence, Highlighting the Fundamental Flaws in Today's School Discipline
Just before Thanksgiving, a student in Mobile, Alabama, was violently attacked and harassed at school. He was corned and pummeled by a group of students. The school immediately suspended him for being in a fight. After he was suspended, a video of the incident surfaced on social media, showing he was actually just a victim and appeared to be doing nothing other than trying to get away. The video went viral, garnering millions of downloads and even a responsive video of support for the boy from Roy Jones, Jr.
Once the facts of the incident came to light and the media storm took hold, the district reversed course. The superintendent placed the principal who suspended the student on leave and is investigating the incident. The superintendent and others also came out on the day the boy returned to school to welcome him back, show him support, and assure him and others that bullying in the school was going to be addressed.
Kudos to the district for not digging its feet in the sand and showing signs of change, although I am not sure how it could have done otherwise. Regardless, like countless other stories, this one confirms the troubling lessons I offer in Ending Zero Tolerance: The Crisis of Absolute School Discipline. First, facts matter and zero tolerance is irrational. Blanket rules that mandate or authorize suspension for any student involved in a fight are indefensible. The same is true of various drug, weapon, disrespect and disruption rules. Courts should say so and begin forcing schools to use judgment and look at circumstances. Schools' refrain that they must "draw lines in the sand" just won't cut it.
Second, as it currently stands, due process protections in school discipline are not protections at all. For privacy reasons, we will probably never know exactly what steps the principal took prior to suspending this victim of violence in Mobile, but I find it hard to imagine that the principal asked many questions or paid much attention to the victim's story. In other words, the constitutional right to due process prior to suspension and expulsion is not worth much in our nation's schools any more. It has become a sham that allow schools to do whatever they want behind the window-dressing. I detail the data and events in my book that make this point clear.
Third, it was not the constitution that saved this boy, but a happenstance set of facts. So we should not delude ourselves into thinking the system worked here. I detail another story in the book, which is far more troubling from a procedural point. It involved a principal and the rest of the school administration effectively colluding against a young boy and it was only the happenstance revelation of that collusion that reversed the suspension, not any reliable constitutional protection that others who follow might rely on. In other words, as currently applied, our constitution hangs students out to dry.
Ending Zero Tolerance proposes a more nuanced approach to school discipline that accounts for individual circumstances, the natural development of children, and the quality of the educational environment itself. In short, it proposes that school discipline begin to make sense.
Thursday, December 1, 2016
The South Poverty Law Center’s Teaching Tolerance project conducted a survey in the days following the election and got responses from over 10,000 teachers, counselors, administrators and others who work in schools. SPLC described the responses as "indicat[ing] that the results of the election are having a profoundly negative impact on schools and students. Ninety percent of educators report that school climate has been negatively affected, and most of them believe it will have a long-lasting impact. A full 80 percent describe heightened anxiety and concern on the part of students worried about the impact of the election on themselves and their families. Also on the upswing: verbal harassment, the use of slurs and derogatory language, and disturbing incidents involving swastikas, Nazi salutes and Confederate flags." The survey used the results from its earlier survey in March as its baseline to determine if things had gotten worse. One of the most troubling lines in the report is: "The increase in targeting and harassment that began in the spring has, according to the teachers we surveyed, skyrocketed. It was most frequently reported by educators in schools with a majority of white students."
Its summary findings include:
Nine out of 10 educators who responded have seen a negative impact on students’ mood and behavior following the election; most of them worry about the continuing impact for the remainder of the school year.
Eight in 10 report heightened anxiety on the part of marginalized students, including immigrants, Muslims, African Americans and LGBT students.
Four in 10 have heard derogatory language directed at students of color, Muslims, immigrants and people based on gender or sexual orientation.
Half said that students were targeting each other based on which candidate they’d supported.
Although two-thirds report that administrators have been “responsive,” four out of 10 don’t think their schools have action plans to respond to incidents of hate and bias.
Over 2,500 educators described specific incidents of bigotry and harassment that can be directly traced to election rhetoric. These incidents include graffiti (including swastikas), assaults on students and teachers, property damage, fights and threats of violence.
Because of the heightened emotion, half are hesitant to discuss the election in class. Some principals have told teachers to refrain from discussing or addressing the election in any way.
The title of the report hangs this problematic upswing on the President-elect: The Trump Effect: The Impact of The 2016 Presidential Election on Our Nation's Schools. While the upswing in problems seems clear enough, the cause of the problem is far more complex. Trump no more created racism than did Obama eliminate it. The election of both may have ironically unleashed new strains of it in their own time. Likewise, as bitterly contested as the election was among their parents, it is no surprise that tensions filtered into schools. In schools, thing can often get worse because schools offer a captive audience populated by immature (which is not meant pejoratively) and developing young persons. Some might recall students proudly donning Obama T-Shirts following his elections, which predictably led to incidents.
With that said, this time it does appear to be more serious. The important point, however, is not Trump, Obama, or the election. The important point is that, thus far, the climate in many schools and for many children has not been good. When that climate produces a negative environment aimed at students based on race, ethnicity, gender, disability, or language status, federal law obligates schools to act to address the situation. If they do not, it will be the job of the Office for Civil Rights at the Department of Education to step in, both now and under the next administration. And federal law aside, when the climate negatively effects student learning, it is the job of school leaders to constructively address it.
Get SPLC's full report here.
Wednesday, November 30, 2016
With the selection of Betsy DeVos as Education Secretary, Donald Trump has made good on his promise to do everything possible to undermine and weaken America's public education system. President-Elect Trump made few promises about his education agenda during the campaign, but what he did promise - $20 billion in federal funding taken from public schools to be used for private and religious school vouchers - foreshadowed his pick of a conservative billionaire who has donated considerable sums to promote charters and vouchers at the expense of the public schools and the children they serve. Ms. DeVos's track record in Michigan provides a clear picture of her priorities as Education Secretary. She and her husband have funded campaigns to increase the number of charter schools, including for-profit charters, especially in high poverty communities such as Detroit and Flint. They have funded this effort despite the fact that Michigan's expansive charter sector is among the least accountable and worst performing in the nation. Ms. DeVos also bankrolled an attempt to bring vouchers to Michigan, but those efforts were stymied due to a constitutional amendment passed in 1971 prohibiting public funding for private schools.
The bottom line is this: the Trump Administration will do nothing to support public education across the country. Instead, federal funding will be used as a carrot, or perhaps a stick, to force states to accelerate the unregulated growth of charters and expand existing voucher programs or enact new ones to facilitate the flow of tax dollars from public schools to private and religious schools and other private providers.
What we can also expect is a wholesale retreat from federal enforcement of civil rights protections for vulnerable student populations, from LGBTQ to ELL students. In short, it is not an exaggeration to call the Trump-DeVos education agenda an all-out assault on our public schools, the centerpiece of which is the diversion of billions of dollars from public education to private spending.
What can the vast majority of Americans who care about public education do?
This is a good time to remind ourselves that public education has always been - and will continue to be - the obligation of the 50 states and the District of Columbia. This obligation is embedded in the guarantee of a public education in state constitutions. It is the states, not the federal government, that control access, quality, governance, student rights and the bulk of funding for their public education systems.
A storm of policy and public relations to promote educational inequity and disparity across the nation will emanate from Washington under the new administration. But if we turn our full attention to the states, we can - and must - energize existing coalitions and campaigns of parents, educators, students and community organizations to protect and defend the public schools. Let's start now to erect state and local firewalls to safeguard our schools.
Here are a few ways we can begin:
1) We must press our congressional delegations to oppose the Trump anti-public education agenda, starting with the DeVos appointment but continuing to block other proposals, from dismantling the Office of Civil Rights (OCR) to diverting Title I funding for vouchers under the guise of "portability."
2) If a state constitution prohibits the use of public funding for other purposes, it's time for advocates and activists to get ready to stand behind it. Some state constitutions contain such prohibitions or have been interpreted by courts to do so. If state law is unclear, it's time to propose a law to "lockbox" and protect public school funding. Most states already underfund their public schools, and what our children don't need is the federal government trying to divert any amount of that funding to private and religious schools.
3) This is the right time to start state-level conversations about rejecting offers of federal funding that come at the price of defunding public education and causing even more inequity and disparity of opportunity for students, especially low-income students, students with disabilities, English language learners and students of color.
4) Legislative campaigns for charter school reform must be reinvigorated. In many states, an overhaul of charter school laws is long overdue to ensure full accountability with regard to student access and school performance, as well as the use of public funds. Segregation of students based on disability, the need to learn English, academic risk or other factors must be fought in statehouses, including moratoriums to prevent funding loss and student segregation resulting from uncontrolled charter growth.
5) We must review state-level student and civil rights protections and develop an agenda to strengthen that critical framework. This must include enhancing anti-discrimination and anti-bullying laws; school discipline reform; open admissions for homeless children, youth in foster care, and un-documented students; and other measures to safeguard the rights of students.
On the one hand, a Trump Administration offers the opportunity to join the many advocates laboring to ensure equal and quality education for all children in their states, often in extremely challenging political environments. On the other hand, Trump's election is a wake-up call about a fundamental, enduring lesson: education equity advances or regresses primarily through state action on funding, essential resources and programs, and students rights. Actions taken by the federal government, even those intended to promote equity in the states, can only go so far. And sometimes those actions impede progress.
Let's not get distracted by "inside the beltway" prognostications or rarefied debates over how bad things may be. Those of us working in the states know what's coming. It's time to renew and redouble efforts to protect public education in our states and communities. Millions of children are depending on us.
David G. Sciarra is Executive Director of the Education Law Center, where he serves as lead counsel in the landmark Abbott v. Burke school funding litigation and directs ELC's advocacy on behalf of the nation's public school children.
Tuesday, November 29, 2016
For those who have taught or taken education law in recent years, you have probably touched on the seesaw history of bilingual education in our schools. The trend of the last two decades has included the banning or limiting of bilingual education and the move toward immersion programs. That shift came to a head in Valeria v. Davis, 307 F.3d 1036 (9th Cir. 2002)--a rather complicated case to teach. More than sixty percent of Californian's had voted to ban bilingual instruction. This prompted a legal challenge, alleging that the ban was discriminatory and motivated by ethnic animus. The court rejected the challenge, reasoning that the motivation behind the legislation was to improve education. The case involved the same political inequality theory that was recently taken up by the U.S. Supreme Court in Schuette v. Coalition to Defend Affirmative Action--the case challenging Michigan's ban on affirmative action.
While Valeria and Schuette turned out poorly for civil rights advocates, they have now secured a win in the court of public opinion. California, by a vote of 73-27 percent, just reversed course again and ended the era of English-only instruction in its public schools. Nuance and problems, however, still loom. First, as NPR explains,
[I]t'll be up to school districts to decide locally whether they want to offer bilingual education or not, based on parents' demand for it. Under the new measure, if at least 20-30 parents want bilingual instruction for their children, their school will have to provide it. Even if only a few parents want it — less than 20 — that could put pressure on schools to make and force school district officials to intervene and come up with an accommodation.
The main change under Proposition 58 is that parents no longer have to sign a waiver in order to enroll their children in a dual language or bilingual classroom. Under English-only policies, teachers were prohibited from making any recommendation on bilingual education, so that could change too.
Second, California has an enormous capacity problem. When it banned bilingual education two decades ago, it helped dry up the pipeline of teachers with the training and skills to offer bilingual instruction. That problem is only further amplified by the fact the general teacher pipeline was also decimated by the recession and state policy in response to it. As I detail in Taking Teacher Quality Seriously and Averting Educational Crises: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education, California, along with a number of other states, have a very big hole to dig themselves out of. In other words, there are not enough qualified teachers to fill basic education spots, much less bilingual education.
Monday, November 28, 2016
Erika Wilson's new article, The New School Segregation, 102 Cornell L. Rev. 139 (2016), is now available on westlaw. She offers this abstract:
The South has a long and sordid history of resisting school desegregation. Yet after a long and vigorous legal fight, by the mid-1980s, schools in the South became among the most desegregated in the country. An important but often underappreciated tool that aided in the fight to desegregate schools in the South was the conventional and strategic use of school district boundary lines. Many school systems in the South deliberately eschewed drawing school district boundary lines around municipalities and instead drew them around counties. The resulting county-based system of school districts allowed for the introduction of school assignment plans that crossed racially and economically segregated municipal boundary lines.
Some affluent and predominantly white suburban municipalities in the South are threatening to reverse this progress. They are doing so by seceding from racially diverse county-based school districts and forming their own predominately white and middle-class school districts. The secessions are grounded in the race-neutral language of localism, or the preference for decentralized governance structures. However, localism in this context is threatening to do what Brown v. Board of Education outlawed: return schools to the days of separate and unequal with the imprimatur of state law.
This Article is the first to examine Southern municipal school district secessions and the localism arguments that their supporters advance to justify them. It argues that localism is being used as a race-neutral proxy to create segregated school systems that are immune from legal challenge. It concludes *140 by introducing a normative framework to evaluate the legitimacy of the localism justification for Southern school district secessions specifically and decentralized public education governance structures more broadly.
Monday, November 14, 2016
Students in Flint, Michigan, recently filed suit in U.S. District Court against the Michigan Department of Education, the Flint and Genesee school districts. They allege that exposure to lead in the school system can exacerbate learning disabilities and warrants a response under the IDEA. Those who followed older research may recall a study a couple of decades ago in Maryland showing that racially disparate lead exposure in the state contributed to long term racially disparate educational outcomes. Kudos to the Education Law Center and the ACLU of Michigan for recognizing the issue in Flint and coming to these students' aid. Gregory Little of the White & Case has also stepped up to provide pro bono services in the case. The press release offers this:
The lawsuit demands that the Michigan Department of Education, Flint Community Schools and the Genesee Intermediate School District take immediate action to ensure that all students who require special education services are identified and provided with the programs and supports they require.
“We know that Flint schools are not currently meeting the needs of special education students, and we know that exposure to lead in drinking water can be highly toxic for children, potentially leading to or exacerbating disabilities” said Jessica Levin, ELC Staff Attorney. “It is imperative that the local district and the State of Michigan make sure students are evaluated and provided with appropriate programs and services, especially now that the number of affected students could grow significantly.”
The lawsuit amply documents the systemic violations of federal law, including the Individuals with Disabilities Education Improvement Act (IDEA), in Flint’s public school system. To remedy this situation and prepare for an expected increase in students requiring services, the plaintiffs ask for screenings and evaluations to identify all students in need of special education services and the provision of those services by sufficient and qualified personnel.
“The lead crisis in Flint has put all children at risk, and the state and local education authorities must take action to ensure the public schools meet their legal mandate of addressing students’ educational needs,” said David G. Sciarra, ELC Executive Director. “It is our privilege and our obligation to represent the families of Flint. We will do all we can to come to a speedy and appropriate resolution of this case.”
For more information about the Flint lawsuit, please read this joint ELC-ACLU of Michigan press release.
Thursday, November 10, 2016
The issue of charter expansion in Massachusetts has raised cutting edge issues over the past year and a half. Initially, plaintiffs filed suit, seeking to use the state education clause to argue that the state was obligated to provide more charters in light of its failure to provide an adequate education in its regular schools. That theory built on much of the flawed thinking in California, where a trial court had struck down teacher tenure as a violation of students fundamental right to education. More recently, the higher courts in California rejected that tenure theory. In Massachusetts, however, the theory regarding charters migrated into the political domain and was offered as leverage against legislators who opposed charter expansion. With no victory there, the issue moved to the voters.
On November 8, 2016, Massachusetts voters roundly rejected the expansion of charters. Initially number showed a large margin of 62-38. The New York Times reported that those favoring expansion had spent $26 million to promote the measure. Opponents spent $15 million. The president of the Massachusetts Teacher Association said it was a victory for public education in general: “We held the line. . . . Money can’t buy our public schools.”
Given the flaws in the litigation claims, one would expect the same result there, although it may be slower coming. These types of suits, however, are becoming more and more prevalent.
Monday, November 7, 2016
Last week's New York Times recognized the contribution of David Seeley, who served as Assistant Education Secretary during President Lyndon Johnson administration. In a June 2016 interview with the website The 74, Seeley described himself as a "soldier" in while working for the Eisenhower administration (1956-59), negotiating school districts' "total massive resistance" to desegregation after Brown v. Board of Education, work that he continued in the Johnson administration. Dr. Seelely wrote an influential book on building community schools, “Education Through Partnership," and taught at CUNY after his career in national and city government. Seeley reflected in the June interview that the work on desegregation is far from over:
We got practically all of [the school districts] to come in with plans, but many made it easy for the “separate but equal” doctrine to be kept alive by leaving integration up to a school’s or individual family’s choice … So we didn’t get much integration going, nor did we convert the Southern people, who I think are still unconverted. They’re right in a resurgence of the old Confederacy today — today, right now, we’re still confronting this. … We’re definitely not past the race problem. Right here in Staten Island, too, it’s gotten worse as a matter of fact.
The NYT obituary is here.
Friday, November 4, 2016
In September, Superior Court Justice Brian Tucker granted most of plaintiffs' motion for summary judgment, in City of Dover v. State, holding that the state's statutory cap on State school funds sent to cities and towns denied Dover adequacy funds to which it was entitled under the State constitution and granting a permanent injunction.
The court noted in its ruling that the State did not oppose plaintiffs' motion for declaratory and injunctive relief, but instead the Senate President and Speaker of the House intervened to oppose the motion. The intervenors argued that plaintiffs lacked standing to bring the case. The court did not agree, explaining that because the Dover plaintiffs argued that the loss of funding impaired their ability to furnish a constitutionally adequate education they had standing to challenge the cap.
The court observed that New Hampshire school children have a constitutional right to an adequate education. Citing New Hampshire Supreme Court precedent in Claremont Sch. Dist. v. Governor (1993), the court explained that the State constitution "imposes a duty on the State to provide a constitutionally adequate education to every child in the public schools in New Hampshire and to guarantee adequate funding." The court also stated that the State Legislature must define a constitutionally adequate education and pay for it, citing Londonderry Sch. Dist. v. State (2006).
A New Hampshire statute provides a definition of a constitutionally adequate education and identifies the annual per pupil funding amount based on the cost of providing that education, including upward adjustments for students with various needs. Despite New Hampshire's cost-based calculation, beginning in fiscal year 2010, State law directed the Department of Education to limit State aid distributions by applying a 15% cap on any increase over the 2009 amount. Dover received less than the cost-based calculation in 2010, and subsequent years.
The next question for the court was under what standard to review the challenged statutory language. Because education is a fundamental right in New Hampshire (Claremont 1997), the court used strict scrutiny to determine whether the cap violated the constitution. When governmental action impinges on a fundamental right, strict judicial scrutiny applies, the court noted. The court did not find the cap "necessary to achieve a compelling interest" and "narrowly tailored" to do so, as strict scrutiny requires.
The court declared the cap unconstitutional and issued a permanent injunction against its use. Plaintiffs will recover the funding lost due to the cap from September 15, 2015, and thereafter. This decision also benefits a handful of other school districts and towns that were similarly shortchanged.
"The court in this case correctly upheld the essential right of students to an education," said David Sciarra, Executive Director of the Education Law Center. "This ruling benefits New Hampshire students and the State itself because better educated students today means a stronger economy and civic discourse in the future."
Education Law Center Press Contact:
Molly A. Hunter
Education Justice, Director
Thursday, November 3, 2016
Kandice Sumner, a public school teacher, breaks down racial and socio-economic inequality in our public schools in this straightforward and experiential-based Ted Talk. The webpage offers this introductory summary:
Why should a good education be exclusive to rich kids? Schools in low-income neighborhoods across the US, specifically in communities of color, lack resources that are standard at wealthier schools — things like musical instruments, new books, healthy school lunches and soccer fields — and this has a real impact on the potential of students. Kandice Sumner sees the disparity every day in her classroom in Boston. In this inspiring talk, she asks us to face facts — and change them.
One of the more interesting themes of her talk is the argument that our education system has never been designed to offer equal or quality opportunities to communities of color and that when it does occur it is random or potentially a result of private philanthropy rather than the education system itself. In one snippet of the conversation, she offered:
If we really, as a country, believe that education is the "great equalizer," then it should be just that: equal and equitable. Until then, there's no democracy in our democratic education.
On a mezzo level: historically speaking, the education of the black and brown child has always depended on the philanthropy of others. And unfortunately, today it still does. If your son or daughter or niece or nephew or neighbor or little Timmy down the street goes to an affluent school, challenge your school committee to adopt an impoverished school or an impoverished classroom. Close the divide by engaging in communication and relationships that matter. When resources are shared, they're not divided; they're multiplied.
You can watch her talk here.
Wednesday, November 2, 2016
The Maryland court case of an elementary school student who was suspended for chewing a Pop-Tart into a gun shape was reportedly settled last week. See this blog's stories here and here. The school's assistant principal suspended the student, then seven years old, for shaping the Pop-Tart into what a teacher interpreted as a gun. He was suspended for two days. According to the Annapolis Patch last week, Anne Arundel County Public Schools have reportedly settled with the student's parents to remove the suspension from their son's record, even though a judge ruled this year that school officials were within their rights to suspend him. The story is here.
New Charter School Controversy Calls Into Question Democratic Accountability and What It Means to Be a Public School
One of Dallas’ oldest and biggest charter schools, A.W. Brown-Fellowship Leadership Academy, is in turmoil. It started out with an enrollment of 200 students more than a decade ago and now has 2,400, with growth each year. Some parents are rethinking the school and its governance. New claims of abuse and/or mistreatment of students have been levied against the school. Parents claim the school is being non-responsive to concerns. The problem appears that even if the parents are correct there is nothing they can do about because of the differences between a charter school and a traditional public school.
Parents also complain of nepotism — namely, that board president Lorenzo Brown and his son serve together. But that’s legal for charter schools in Texas. After all, A.W. Brown school was started by a husband and wife. At one point, both Armond and Paula Brown served on the board and worked as employees, records show. Other family members also worked for the school.
. . . .
If the school were part of a traditional district, parents could elect their board members. But as a public charter school, A.W. Brown’s board appoints its members.
So some parents say they’re voting with their feet. LaTrondra King said her son is on the waiting list at another charter school. “I just want the best for him,” she said.
In Charter Schools, Vouchers, and the Public Good, I raised similar issues in the context of asking what makes a school "public." Does a statute that calls a charter school a public school make it so or are there substantive qualities and characteristics that make a school public? I won't recount that entire discussion here, but I argue that constitutional and democratic accountability, among other things, are a central aspect of what makes a school public.
Public schools’ mission also extends to fostering [particular] values once students are enrolled, including democracy, equality, and tolerance. Public schools pursue these ends not only because they are public values but also because the Constitution mandates as much. This is no small distinction. As state actors, public schools are bound to treat students (and teachers) fairly, which entails, among other things, equality, rationality, and viewpoint neutrality. Moreover, these obligations extend not only to individual students but to groups of students, schools, and districts. Equality offers a touchstone example. From its decision of whether to assign a student to special education classes to its decision of how to fund schools and districts, the state and all its subsidiary public schools must ensure equal treatment of and opportunity for all students.
Any number of private schools might hold these same values, as they are not inherently unique to public schools. But private schools are free to bend, ignore, and modify these values. Likewise, statutes might impose equality obligations on nonpublic schools that receive federal funds or fall within some other statutory classification, but private schools are free to decline federal money or alter their status to avoid falling within the ambit of other statutes. For that matter, legislators can exempt private schools from statutory prohibitions at any time and, in fact, have done so on occasion. In short, those values that make schools public create inviolable rights in public schools, in contrast to nonpublic schools, where those values are gratuitous, to the extent they even exist.
Constitutions and statutes, however, are but one piece of the public schools’ accountability structure. Perhaps more important than legal accountability is their political accountability. From the governor and department of education officials to the school board, superintendent, and principals, public education is democratically accountable. To state it another way, people collectively set the rules for public schools.
Nonpublic schools, in contrast, lack democratic accountability. Many argue that consumer accountability is more effective than democratic accountability, and often they are correct. For instance, consumers of education, as a practical matter, are more likely to affect immediate change in nonpublic schools. But there are important limits and caveats to consumer influence. First, the larger community has little influence on nonpublic schools, whereas everyone has the capacity to influence public schools. Second, even those consumers who can exert influence on private schools may find that it is only as to microlevel issues or those issues that the school is willing to negotiate. The educational direction of nonpublic schools ultimately rests solely in the hands of the private school’s leadership and is not subject to formal checks. Unlike in public schools, consumers cannot unelect the boss or bosses in private schools. Their only option is to go elsewhere.
Finally, schools are public because they represent the democratic will of the people. Schools that represent something other than the will of the people are not public in a substantive sense. While these points might seem obvious, they bear noting because, as suggested previously, they mark the outer limits of the role that dissent can play in public schools. Because public schools operate based on democratic consensus, both the dissenter and consenter must abide by the consensus rules. While nonpublic schools can tolerate relatively high levels of individual action and dissent—as individuals can sort themselves into varying nonpublic schools—a system of public schools risks falling apart because it is predicated on collective action. Thus, a hallmark of public schools, for better or worse, is to compel conformity and limit dissenters’ capacity to overrule the majority.
That article also posits that charter schools, as currently structured, present serious tensions that call into question whether they are, in fact, public schools.
With these broad outlines, the question is whether charter schools are substantively public schools and, if not, what steps are necessary to make them public. Of course, state statutes label them as such, but if labels do not confer substantive status, something more must be said of charters. Implicitly recognizing the distinction between labels and substance, commentators and scholars have struggled with how to characterize charter schools. Although some assert charters are public with no explanation beyond the fact that statutes label them as such, more often scholars characterize them as “quasi-public” or hybrid-public schools. These latter characterizations implicitly acknowledge that important aspects of charter schools distinguish them from public schools. Yet, the fact that they are publicly funded and offer free education cautions against eschewing the public characterization altogether.
At some point, however, variations between charter schools and the essential meaning of a public schools are too significant, and a school is either public or not. If the label quasi-public is accurate, a strong case can be made that charters are not public schools. To call a school quasi-public may be to say it looks and acts like a public school in various respects, but it is not really a public school. For instance, courts label some agreements or understandings between people as “quasi-contracts” and, in doing so, impose contractual responsibilities on the parties, but a “quasi-contract” is a quasicontract and not an actual contract because it lacks some crucial element of a contract.
In practice, charter schools, like quasi-contracts, lack crucial elements of the label to which they aspire. In particular, charters diverge from the public school concept in terms of their student enrollment, oversight, and potentially insular missions. This divergence, in all fairness, is not likely true of all charters, as charters operate in diverse ways, but few states sufficiently regulate charters in the manner necessary to ensure that they, as a group, adhere to key public school characteristics. In effect, those charters that act consistent with public values are effectively doing so on a voluntary basis, just as a private school could.
Read the full article here.
Tuesday, November 1, 2016
For law students, medical students, and doctoral students interested in disability law, the Thomas Jefferson School of Law has launched an annual student writing competition focusing on disability law. The details are below.
Thomas Jefferson School of law is pleased to announce the third Jameson Crane III Disability and the Law Writing Competition. Made possible by the generous gift of Thomas Jefferson School of Law alumnus Jameson Crane III, the Crane Writing Competition seeks to encourage outstanding student scholarship at the intersection of law and medicine, or law and the social sciences. The competition promotes an understanding of these topics, furthers the development of legal rights and protections, and improves the lives of those with disabilities.
The competition is open to currently enrolled law students, medical students, and doctoral candidates in related fields who attend an accredited graduate program of study in the United States. Submitted papers may be on any topic relating to disability law, including legal issues arising with respect to employment, government services and programs, public accommodations, education, higher education, housing, and health care.
Submissions will be judged anonymously by an independent panel of experts. The winner of the competition will receive a $1,500 cash prize and the Thomas Jefferson Law Review (TJLR) will consider the paper for publication under the TJLR’s editorial standards. Two second place winners will each receive a $1,000 cash prize. Preference for these additional winners will be given to submissions from disciplines not represented by the grand prize winner. All submissions must be submitted electronically to: firstname.lastname@example.org. All entries must be received by midnight, Pacific Standard Time, January 15, 2017. Winning submissions will be announced by April 15, 2017.
For further details, visit the competition webpage: http://www.tjsl.edu/cranewritingcompetition. Questions may be directed to Associate Dean and Professor Susan Bisom-Rapp, who will be coordinating the competition: email@example.com.
Yesterday, the Supreme Court heard oral arguments regarding the dispute over whether Ehlena Fry, a 12-year-old Michigan girl with cerebral palsy, can bring her service dog to school. The school had prevented her from doing so and she brought suit. The central issue, however, is narrower than the facts of the case suggest. It is a procedural question regarding whether the student must first exhaust administrative process or could immediately sue the district. The Asociated Press reports that the Court was sympathetic to her case:
Chief Justice John Roberts said it "would be kind of a charade" to force the family through administrative proceedings if they can't ultimately get the relief they want. He noted that the Frys are seeking money damages for the emotional harm Ehlena suffered, not trying to work out a compromise with school officials.
Justice Stephen Breyer said he was concerned about gutting the less formal administrative process prescribed by Congress, but seemed to agree that allowing the lawsuit made sense if exhausting administrative remedies "would be futile."
But Justice Sonia Sotomayor said she was "horribly confused" by Katyal's position because the family could no longer get anything by going through the administrative process, since Ehlena is no longer at the school.
Interestingly, Samuel Bagenstos, a former official in the Justice Department and nationally regarded civil rights and disability scholar, is representing Fry. He argued that the school is demanding a time-consuming administrative process that would have the effect of denying his client the relief she seeks. He also adds that her case involves emotional damages resulting from the way the school handled the issue. On the other side, the district claims that allowing the suit would give the family an "end run" around the statutory process that is designed to encourage parents and educators to resolve their differences outside of court.
Monday, October 31, 2016
Over 20 percent of all California charter schools have enrollment policies that violate state and federal law, according to the report "Unequal Access," released in August by the ACLU of Southern California (ACLU SoCal) and Public Advocates of San Francisco. Charter schools in other states use some of the same enrollment policies.
Among the violations cited in "Unequal Access" are admission requirements that violate the California Charter Schools Act, which requires charters to "admit all pupils who wish to attend," regardless of academic performance, English proficiency, immigration status or other factors.
"We hope this report brings to light practices that prevent charter schools from fulfilling their obligations to all students who seek access," said Victor Leung, a staff attorney with the ACLU SoCal. "The report should make it clear to all California charter school authorizers and operators that they cannot cherry pick the students they enroll."
The study examined policies at most charter schools across the state and found that at least 253 violated students' rights by:
- Denying enrollment to students who do not have strong grades or test scores;
- Expelling students who do not maintain strong grades;
- Denying enrollment to students who fail to meet a minimum level of English proficiency;
- Selecting students based on onerous, pre-enrollment requirements, such as essays or interviews;
- Discouraging or precluding immigrant students from attending by requiring information about pupils' or parents' immigration status;
- Requiring parents to volunteer or donate money to the school.
"The idea behind charters was never to create private academies with public funds," said John Affeldt, managing attorney at Public Advocates. "Charter schools, like regular public schools, need to be open to all students. Admission requirements and processes that limit access or discourage certain kinds of students have no place in the public school system."
While the report is the first of its kind to be based on a broad survey of charter admission policies, concerns about these illegal policies surfaced earlier. In 2013, Public Safety Academy in San Bernardino ran into trouble after the school sent letters to 23 students whose grade-point averages had fallen below a 2.0 in one semester. The letter advised them to enroll in another school. Officials at the charter school changed their policy after being contacted by the ACLU SoCal.
In 2014, Public Advocates released a report documenting the charter practice of requiring parents to volunteer "service hours." The report led to new guidance from the California Department of Education, explaining that requirements for volunteer hours are illegal. But the "Unequal Access" report shows the practice still continues in some schools.
In addition to the survey, the report provides recommendations to charter schools, charter-authorizing bodies and the California Department of Education to address the violations.
Tuesday, October 25, 2016
Blog editor Derek W. Black (South Carolina) discussed his book, Ending Zero Tolerance, last week on PBS's Tavis Smiley Show. In Ending Zero Tolerance, Professor Black argues for constitutional protections to check abuses in school discipline and proposes theories for courts to re-engage to enforce students’ rights and support broader reforms. In Ending Zero Tolerance, Professor Black uses stories about individual students, research, and case law to unearth the irrationality of some school systems' disciplinary policies -- and what courts can do to change that. Professor Black's video interview with Tavis Smiley is available here.
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.