Friday, February 13, 2015
Yesterday, Advocates for Children of New York released, Civil Rights Suspended: An Analysis of New York City Charter School Discipline Policies. Based on a review of 164 New York City charter school discipline policies obtained through Freedom of Information Law requests, the report finds that "[a] significant number of City charter schools have discipline policies that fail to meet the legal requirements, leading to violations of students’ and parents’ civil rights. The report includes recommendations for state legislators to consider as they discuss raising the cap on charter schools and ensuring that charter schools serve high-needs students."
“We hear from parents who celebrated winning the charter school lottery only to have their students face repeated suspension or expulsion from school with no opportunity to challenge it,” said Paulina Davis, AFC Staff Attorney. “Students do not give up their civil rights when they enter charter schools. We urge the State to ensure that all charter schools have discipline policies that meet legal requirements.”
Recognizing this problem two years ago, Advocates for Children also released a practical how-to guide for families how are experiencing or have experienced suspension at a charter school.
Thursday, February 12, 2015
New Jersey State Court Finds That Pledge of Allegiance Statute Does Not Violate the State Constitution
A New Jersey Superior Court found this month that a state statute requiring schoolchildren to recite the pledge of allegiance (and its "under God" phrase) did not violate the state constitution's equal protection and establishment clauses. Given that the Massachusetts Supreme Court decided a similar case last May (Jane Doe v. Acton-Boxborough Regional School District), the more recent ruling adds to the cases finding that the pledge of allegiance ceremonies in schools are constitutionally permissible. In the February 2015 case, American Humanist Ass’n v. Matawan-Aberdeen Reg. Sch. Dist., the lead plaintiffs were parents of schoolchildren who challenged New Jersey's pledge statute that required schools to include a salute to the U.S. flag and recitation of the pledge of allegiance each day. The plaintiffs, along with the American Humanist Association, alleged that children who do not participate are nevertheless having the pledge's religious language imposed on them and could suffer exclusion if they choose not to participate. The state court found that the statute did not implicate children's religious freedom because participation in the pledge is voluntary. The court also found that expunging the words "under God" from the pledge was unnecessary because the purpose of public schools is to foster ideas without requiring students to adhere to them. The court rejected the equal protection claim, finding no proof that the plaintiffs' children were discriminated against because of their beliefs. Read American Humanist Ass’n v. Matawan-Aberdeen Reg. Sch. Dist., No. 1317-14 (N.J. Super. Ct. Feb. 4, 2015) here.
D.C. Public Schools chancellor Kaya Henderson recently announced an “Empowering Males of Color” initiative and the district's intent to open a single sex high school for boys in 2017. The purpose of the school would be to focus on the unique educational challenges and needs of Black and Latino boys, whose achievement is the lowest in the district. That plan is now drawing serious criticism and scrutiny. D.C. Council member Mary Cheh has requested that the district's attorney general investigate the legality of the program and the school. Chen, speaking of the potential unfairness to girls, explains:
What I’m saying is that you can’t just do for one group what you’re not doing for another. ... Even if their scores are a little bit better, both groups’ scores are abysmal. ... You have to provide substantially equal opportunities to the other group. That’s all I want. I want all of them to be better off.
Michael Myers, of the New York Civil Rights Coalition, then filed his own letter.
Wednesday, February 11, 2015
In November, plaintiffs in eastern Pennsylvania, including four school districts, several parents, and the NAACP, filed a lawsuit alleging that the state's funding system is unconstitutional. They cite the state constitution's education clause, which states "“[t]he General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth." This clause, they say, establishes education as a fundamental right.
Although not plaintiffs--yet--superintendents in western Pennsylvania are stepping forward to challenge the system as well. Erie schools superintendent Jay Badams and Bill Nichols, superintendent of the Corry Area School District, recently testified at a hearing of the Basic Education Funding Commission, which is working to recommend a new formula for distributing basic education funding to districts. Badams says the current formula is irrational and unpredictable. Districts have no way of knowing from one year to the next how much money they will receive from the state. This makes planning and balancing school budgets extremely difficult.
To the extent this is true, Badams raises an important point I have not often seen in other states. In school finance litigation, the claim is generally that funds are insufficient or unequal. Recent shortfalls in Philadelphia suggest this is the case in Pennsylvania as well and that courts could step in on this basis alone. See here and here. But Badams offers an equally justifiable basis for intervention or reform. Without recounting the precedent from states like Kentucky and West Viriginia on what it means to offer a "thorough and efficient" education, it suffices to say that a funding system that is unpredictable is antithetical to a system of thorough and efficient schools, even if it might otherwise produce sufficient funds.
Tuesday, February 10, 2015
Judge Will Appoint Independent Monitor in Class Action Settlement of IDEA Claims Against Louisiana Education Board
Yesterday, U.S. District Court Judge Jay Zainey (Eastern District of Louisiana) officially approved of a settlement of the disability class action suit in P.B., et al., v. John White (the Louisiana superintendent of education). The judge's ruling, which approves of the parties' December agreement, resolved a complaint brought by parents that charters in New Orleans' Recovery School District discriminated against disabled children, violating the Individuals with Disabilities Education Act (IDEA), Section 504, and Title II. Judge Zainey assured worried parents at yesterday's hearing that he would appoint an independent monitor to ensure that the Louisiana Board of Education met the needs of students with disabilities as outlined in the settlement. The original complaint alleged that the state and the Orleans Parish School Board failed to oversee the delivery of special education services of New Orleans' schools, and because of that lack of oversight, students with disabilities were asked not to leave school or discouraged from enrolling. The settlement requires the state and the school board to develop a plan to identify and evaluate children suspected of having a disability and to describe plans for offering services to students with disabilities. The Notice of Settlement is here.
In its bid to win a Race-to-the-Top grant from the U.S. Department of Education, Tennessee was one of the first states to substantially alter the way it evaluates teachers. Under the state's new system, fifty percent of teachers' evaluation were to be based on student scores on standard exams. The state later reduced it to forty percent. The lawsuit alleges several serious flaws in the the system. First, the system does not control for student demographic factors, such a socio-economic status. Thus, teachers' evaluations will be substantially affected by who they teach, not how well they teach. Second, several estimates and projections about student performance are included in the system, which reduces the confidence intervals or reliability of the scores. Third and most fatal is the fact that the system applies to teachers who teach courses for which the state does not even administer a standardized test. These teachers' evaluations are based on composite school wide performance. In other words, they are assessed, in large part, on how students do in other classes.
Plaintiffs allege that these flaws render the system arbitrary and unconstitutional under due process standards. The complaint is here.
Monday, February 9, 2015
Fortuitously, just hours after drafting a post on Senator Alexander's comments positing that some charters are private, Preston Green, Bruce Baker, and Joseph Oluwole's new article, The Legal Status of Charters Schools in State Statutory Law, Univ. Mass. L. Rev. (forthcoming), came to my attention. Their abstract offers the following summary:
Since 1991, forty-two states and the District of Columbia have enacted legislation for charter schools. While charter schools are generally characterized as “public schools,” courts have had a difficult time determining their legal status because charter schools contain both public and private characteristics. This article examines how courts have treated the hybrid nature of charter schools in a variety of state statutory contexts. The first part examines whether charter schools, charter school officials, and the educational management organizations (EMOs) that provide services to charter schools are entitled to governmental immunity. The second part examines how courts have applied public accountability laws to charter schools, charter school officials, and EMOs. The third part examines whether charter schools are public entities subject to prevailing wage statutes. The fourth part analyzes whether charter schools are public schools that must follow student expulsion requirements. The fifth part provides a tally of these cases in terms of whether: (1) charter schools and EMOs are subject to the same rules as public schools; and (2) charter school officials are governmental agents subject to the same rules as other public officials. The final part identifies cases that raise concerns that legislatures should address through statutory amendments.
Download it here.
Like or dislike him, Lamar Alexander is one of the more informed politicians in Washington, D.C. on questions of education. He has served as the U.S. Secretary of Education and as president of the University of Tennessee. Thus, it is hard to write his education comments off as ignorant. Speaking at a school choice event at the Brookings Institute last week, he said “There are some private charter schools, are there not?” The Washington Post reported on some other awkward exchanges occurred along the way.
“Charter schools are subject to the same tests as regular public schools,” Grover J. “Russ” Whitehurst, director of the Brown Center on Education Policy, said. “Public charter schools,” Alexander interrupted. “Well they’re all — charter schools are public schools,” Whitehurst said. “Charter schools, I guess as we define it, are public schools that operate under charters from the state rather than private, so they’re subject to the same tests.”
After the event, Senator Alexander indicated that he had misspoken and that all charter schools are public. His initial comments, nonetheless, suggest a perception that some charter schools, particularly privately run for-profit ones, do not operate like public schools. Of course, such a perception is problematic for the party line of both Democrats and Republicans, but consistent with the framework I suggested here. Broader politics will almost certainly dictate that Alexander keep his perceptions to himself as he works through the rewrite of the Elementary and Secondary Education Act, but it would be nice if he were brave enough to do otherwise.
Friday, February 6, 2015
Amherst College, Smith College, and Emory Law School's Vulnerability and the Human Condition Project are co-sponsoring a workshop on privatization and public education at Amherst on April 25-26, 2015. The workshop's organizers, Kristin Bumiller (Amherst), Martha Albertson Fineman (Emory), and Alice Hearst (Smith), have extended the deadline for the call for papers. See the call for papers announcement here. The workshop description is below:
This workshop explores public education through the lens of vulnerability theory. Public education is a foundational means whereby the state fulfills its responsibility to structure institutions responsive to human vulnerability and need for resilience. Yet the state seems to be withdrawing or lessening its commitment to public education, and there has been a steady growth in privatization over the past half century. Increased funding for charter schools and voucher programs, and the increased number of students in private education and homeschool settings have diverted and decreased the availability of funds for general public education.
Indiana Supreme Court Finds that State Civil Rights Commission Lacked Authority to Act in Discrimination Claim Against Homeschooling Association
In a dispute the Indiana Supreme Court characterized as "an intra-group squabble over the type of meal to be served to a member family's child" at a dinner-dance social, the court found that the Indiana Civil Rights Commission lacked statutory authority to act because the complained-of behavior was not "an incident not related to education." The Fishers Adolescent Catholic Enrichment Society, Inc. (FACES) is a group of families who associated together “to provide homeschool high schoolers with Catholic educational, spiritual, and social enrichment.” The claimant, Elizabeth Bridgewater, charged that FACES discriminated against her daughter in 2008 by resisting the family's efforts at a FACES function to arrange a special meal that would not activate the child's allergies. Bridgewater filed a complaint with the Indiana Civil Rights Commission, alleging that FACES refused her daughter a reasonable accommodation and therefore discriminated against her due to her disability. While the complaint was pending, Bridgewater ordered a special dinner for her daughter for the event by contacting the host facility directly. The daughter attended the dinner without incident, however, she was expelled from FACES four days later. Bridgewater then filed a second complaint with the Commission. An administrative law judge found for the Bridgewaters and awarded $5,000 in damages, a finding that the Commission later adopted. On appeal, the Indiana Supreme Court found that the state's civil rights statute conditions the Commission's authority "to incidents where a person has “engaged in an unlawful discriminatory practice" and that FACES' activities were social rather than educational in nature. The court also rejected the Bridgewaters' retaliatory discrimination claims, again finding that any unlawful discriminatory practice that the Commission addresses must be related to education (under this case's facts.) The case prompted a dissent by three members of the court, who wrote that the retaliation claim was not "derivative of and thus depend[ent] upon the disposition of the discrimination claim." There was an arguable connection to education in the case, the dissent noted, as FACES conducted classes and helped the students' participation in educational activities outside of the home. Further, the dissent pointed out, the court's decision conflicted with how discrimination is defined federally, which "includes retaliation as a separate act of discrimination regardless of the outcome on the merits of the underlying complaint." The case is Fishers Adolescent Catholic Enrichment Soc'y, Inc. v. Bridgewater ex rel. Bridgewater, No. 93S02-1310-EX-704, 2015 WL 70285, at *4 (Ind. Jan. 6, 2015).
New York City's Independent Budget Office has released an update on student retention in charter schools versus traditional public schools. The new report finds that "charter school students stay in charter schools at higher rates than students in nearby traditional public schools." This finding held true across other important subgroups. Students with disabilities "remained at their charter schools through the 2012-2013 school year at a higher rate than similar students at nearby traditional public schools." More specifically:
- 64% of kindergarten students that start in a charter school will remain at that school by 4th grade, compared to 56% that started in a nearby TPS.
- The attrition gap between charters and nearby TPS is due to students transferring from one NYC public school to another. About 23% of charter students transferred to a different NYC public school compared to nearly 32% from the district school.
- 53% of charter students classified as having a disability in kindergarten will remain at the charter compared to 49% that will remain in the TPS.
Charter school advocates immediately latched onto these findings, particularly the one in regard to students with disabilities. They offer it as a counter to scholars, including Rob Garda, who have pointed out the under-enrollment or under-recruitment of students with disabilities by charters. Unfortunately, the report is actually consistent with Garda and others' critique, finding that:
Thursday, February 5, 2015
Clara Muschkin, Helen F. Ladd, and Kenneth Dodge have released an important new study on pre-k education, The Impact of North Carolina’s Early Childhood Initiatives on Special Education Placements in Third Grade. They find that pre-k education results in a 39 percent reduction in the number of students receiving special education services by the third grade. That reduction generates savings that pale in comparison to the cost of offering pre-k. These findings solidify the wisdom of the financial investment that Goldman Sachs recently made in Salt Lake City's pre-k program. Goldman agreed to pay for part of the city's pre-k program in exchange for 40% of the savings the city would potentially see in special education over the first 6 years of the students' education.
The abstract and full study are here.
After two years of a steady stream of negative reports, horror stories, and critiques of the higher education system for dealing with sexual assault on campus, Senators Kaine and McCaskill have introduced preventative legislation that does not apply to colleges at all, but just might be a step in the right direction. Rather than address the problem of sexual assault after it happens, they propose to educate public school students in advance. The Teach Safe Relationships Act of 2015 would require that schools' health education curriculum include education on "safe relationship behavior." As a general matter, federal or state legislation that tinkers with public school education to achieve some broader social policy is a bad idea. Religion cases are rife with examples. Politicians too often use students' education as their playground for political ends. This legislation, however, may be the exception to the general rule. The curriculum would directly relate to the experiences students will face and would seek to give them constructive tools for dealing with it. After all, the ultimate solution to sexual assault on college campuses is not a better due process system, but fewer assaults in the first place. More here.
Wednesday, February 4, 2015
California Department of Education Prohibits Public Schools from Requiring Parents to Volunteer Service
In November, Derek posted How Charter Schools Charge for Access, a report challenging some California charter schools' requiring parents to work "service hours" to support their children's schools. The report was written by the Public Advocates, a nonprofit law firm and advocacy organization that addresses education, housing and transit equity. Recently, the Public Advocates updated us that the California Department of Education (CDE) advised charter schools and school districts on last week that the law prohibits charters from requiring parents to donate “service hours” to a public school. According to a media release, the CDE issued the new guidance less than two months after the Public Advocates report. “We are pleased by the CDE’s quick action,” said John Affeldt, Public Advocates Managing Attorney. The guidance states clearly that California law “bars a school district or school from requiring ‘volunteer hours’ as a condition [for] admission, enrollment…[or] participation in educational activities.” The guidance also clarifies that public schools may not employ cash payments or fee waivers (e.g., indigency waivers) as ways to satisfy volunteer hours requirements. Read more here.
In 2012, Indiana House Speaker Brian Bosma shelved a Senate bill "that would have allowed public schools to teach creationism alongside evolution in science classes." Specifically, public schools would have been permitted to teach creationism as long as they taught it alongside "origin-of-life theories from multiple religions: Christianity, Judaism, Islam, Hinduism, Buddhism and Scientology." The bill passed the Indiana Senate, but Representative Bosma squashed the bill upon its arrival in the House, recognizing the bill as a "lawsuit waiting to happen."
Now, the Senate is pushing the issue again in Senate Bill 562. Similar to its predecessor, this proposal would protect teachers from disciplinary action for exploring alternative theories to evolution in class. This new bill, however, cleverly frames this issue as freeing teachers to help
students to understand, analyze, critique, and review in an objective manner the scientific strengths and weaknesses of existing conclusions and theories being presented in a course being taught by the teacher.
The bill then adds limiting language, stating:
This section protects only the teaching of scientific information, and may not be construed to promote: (1) any religious or nonreligious doctrine; (2) discrimination for or against a particular set of religious beliefs or nonbeliefs; or (3) discrimination for or against religion or nonreligion.
Mary C. Nicoletta's student note, Proposed Legal Constraints on Private Student Lenders, 68 Vand. L. Rev. 225 (Jan. 2015), is now available on westlaw. She offers this summary:
This Note considers regulatory methods for curbing the high and variable interest rates offered by private student lenders. Part II examines the mechanics of private student loans, describes existing regulations that govern private student lenders, and identifies recent disputes about government-lender relationships. Part III considers a number of methods for addressing high-cost student lending and draws upon the authority of the Consumer Financial Protection Bureau and its regulations governing other types of lending. Part IV proposes, in the short term, instituting enhanced disclosure for high-cost loans and incentivizing lender-school partnerships to help students find low-cost options before they commit to borrowing. In the long term, Part IV argues that lenders should be required to consider a student's projected ability to repay an educational loan before lending. Using ability-to-repay as a prerequisite could decrease overborrowing and default rates and allow students to enter the job market with debt loads that they realistically can repay. As described in Part III, this framework, along with a qualified-loan safe harbor for consumer-friendly mortgages, was implemented for mortgage lenders following the recent financial crisis. Part IV thus proposes that regulators formulate and test an ability-to-repay calculation and a qualified-loan structure that would provide students similar protections as mortgagors currently receive.
Tuesday, February 3, 2015
North Carolina Supreme Court Will Hear Oral Arguments on the Constitutionality of the State's School Voucher Program
The North Carolina Supreme Court is scheduled to hear oral arguments on February 16 in Hart v. North Carolina, which may decide the fate of North Carolina's Opportunity Scholarship Program (OSP), the state’s school voucher program. The OSP, which is currently on hold after a state superior court judge ruled last August that it was unconstitutional, would have provided up to $4,200 per year to qualifying students to attend a private school of their family's choice. The N.C. Association of Educators, the N.C. Justice Center, the N.C. School Boards Association, and local school boards challenged the program as an attempt to funnel public school funds to private schools without sufficient oversight and contested whether the vouchers would help low-income students as intended.
Last August, Superior Court Judge Robert Hobgood agreed with some of those concerns, finding that the N.C. legislature’s $10 million OSP allocation violated the state constitutional provision permitting taxation "for public purposes only." In a pointed ruling, Judge Hobgood concluded, “The General Assembly is seeking to push at-risk students from low-income families into nonpublic schools in order to avoid the cost of providing them a sound, basic education in public schools” as mandated by state law. Judge Hobgood also criticized the legislature for omitting any substantive instructional, training, or credentialing requirements for private schools to receive OSP funds, saying, “[t]he General Assembly fails the children of North Carolina when they sent with public taxpayer money to private schools that have no legal obligation to teach them anything.” Yesterday, several civil rights organizations filed amici briefs in support of the lower court’s decision, including those of the National Education Association, the N.C. NAACP, the Duke Children’s Law Clinic and group of education scholars, and the ACLU with the Americans United for the Separation of Church and State. Read more about the case at N.C. Policy Watch here.
Two weeks ago, I commented on the significance of the New York Times editorial board's willingness to take a position on school integration. Two weeks later, the board is still pressing its case and making new important arguments. On Sunday, it again called out the state for its segregation and indicated it need look no further than Connecticut for solutions.
The fact that New York has the most segregated public schools in the nation does not bode well for the state’s future. It is a disaster for poor and minority children, who are disproportionately trapped in schools that will not prepare them for the new economy. And it is harming children of all races and economic levels who are in demographically homogeneous schools that do not reflect society or expose them to fresh perspectives.
New York’s political leaders need not look far for ideas. Connecticut has a desegregation program that has revitalized the once-dismal school system in Hartford. Created in response to a 1996 State Supreme Court ruling, it has relied on a voluntary school transfer plan and a vibrant system of magnet schools to improve opportunities for inner-city children and draw suburban families back to a city that was considered an educational dead zone.
They then point to the success of that program:
Racial isolation was the norm when the suit was first filed. Recent data show that 47.5 percent of Hartford children now attend integrated schools — defined under the Sheff agreement as schools in which fewer than three-fourths of the children are members of minority groups. This means that more than half of city students are still confined to segregated, often low-quality schools. But the agreement has shown many parents what public schooling can be and is creating demand for reform of the schools left behind.
The Hartford experience shows that it is possible to fight racial isolation and improve education at the same time.
The full editorial is here.
Monday, February 2, 2015
Representative Joe Wilson (SC-02) introduced legislation in Congress last week to prohibit the Department of Education from imposing new conditions on waivers. His main target is Common Core. His press release states:
My bill would return control over education to the states by prohibiting the federal government from using grants or waivers to mandate, incentivize, or coerce states into adopting Common Core. For states that have already adopted Common Core, it would ensure that any previous requirements for waivers would be void, and the U.S. Secretary of Education would be prohibited from requiring states to agree to any new conditions in order to keep their existing waiver.
The bill has about 35 co-sponsors, and Senator David Vitter, from Louisiana, introduced companion legislation in the Senate. The legislation is unlikely to go far because it does not address the practical problem it would create: states keep their waivers for free. Presumably, this would mean that their non-compliance with NCLB would be completely waived. Beating up on NCLB is easy to do in the current climate, but offering states a free waiver, regardless of their past efforts, is problematic. It would undermine the capacity of the federal government to enforce conditions in future new legislation and it would also completely ignore the substantive failings of many states.
In my article, Federalizing Education by Waiver?, I argue that the conditions placed on NCLB waivers were beyond the scope of the Secretary's statutory power, if not unconstitutional. But this legal conclusion would have merely reset the negotiations over waivers and undercut some of the Secretary's compulsive power. It would not have given the states a free waiver.
Friday, January 30, 2015
Yesterday, Rebecca Klein at Huffington Post published a U.S. map color coded by the average per pupil expenditure in each state. See here. In the heart of the Northeast (NY, NJ, MA, and VE), states spend $16,000 to $20,000 per pupil. Their immediate neighbors spend $12,000 to $14,000. Most of the North-South border states (extending out to Montana) spend $10,000 to $12,000 per pupil. In the Southeast, only one state-Louisiana-spends more than $10,000 per pupil. No obvious explanation for Louisiana jumps to mind. The lowest per pupil expenditures in the nation stretch from the Canada border in Idaho to the Mexico border in Arizona, at less than $8,000 per pupil.
A map of this sort is, unfortunately, too simplistic because it does not account for locality costs. Given the cost of living, the per pupil expenditures in the Northeast necessarily should be higher than those in the South, and those in certain parts of the West even lower. The relevant question is whether expenditures in those states are excessively low or high. With that factor in mind, the per pupil expenditures in California, Oregon, and Washington are the most striking. California falls in the same spending bracket as Mississippi, Alabama, Arkansas, Kentucky, and South Carolina. Go figure. Florida, likewise, falls in the same category as the rest of the Southeast, notwithstanding its dramatically different demographics and costs. For a better means tested analysis of funding, see the Education Law Center's funding fairness reports here.
Klein's second graphic, however, is very instructive. It shows the change in education spending from 2011 to 2012 (adjusted for inflation). Only seven states saw education funding rise. Only 4 saw significant increases. Fourteen states experienced modest decreases in funding (1 to 2% in real dollars), but the biggest group of 29 states saw education funding decrease from 2 to 9 percent.