Tuesday, August 16, 2016
At its recent national convention, the NAACP passed a resolution calling for a moratorium on charter schools. At roughly the same time, Black Lives Matter issued its policy agenda for the nation, which also included a moratorium on charter schools. The NAACP offered this justification for its position:
- “Charter schools have contributed to the increased segregation rather than diverse integration of our public school system.”
- “Weak oversight of charter schools puts students and communities at risk of harm, public funds at risk of being wasted, and further erodes local control of public education.”
- " [R]esearchers have warned that charter school expansions in low-income communities mirror predatory lending practices that led to the sub-prime mortgage disaster, putting schools and communities impacted by these practices at great risk of loss and harm…”
This turn of events is worth special note because the African American community's initial support for charters was a driving force for their adoption. Without state level support and the local demand of African American communities, I would imagine that charter school expansion and enrollment would be only a fraction of its current levels. But now that we have so many charters, I wonder if these new positions really have the capacity to reverse the tide.
Monday, August 15, 2016
First, let me say that that what I have learned about Joseph Kennedy, an assistant football coach at a public high school in Bremerton, Washington, is mostly from second-hand reporting. His story has burned up the the internet and airways with hard line positions on both sides, so much so that finding primary reporting is hard.
Here are what I understand to be the facts. For the past several years, Mr. Kennedy has engaged in religious exercises, apparently before and after games. Before games, he prayed. After games, he prayed and/or offered some sort of religious "inspirational talk" at mid-field. Sometime in the last year, the school district sent him a letter telling him to stop. Kennedy is said to have continued his activities in defiance. It is my understanding that he was fired.
When the Liberty Institute learned of this, it came to his defense indicating it would sue the school district for religious discrimination. Since then, politicians, both local and national, have gotten into the fracas. According to the Seattle Times, forty-seven members of Congress sent a letter in support of Kennedy. He has apparently now filed his lawsuit, giving the story legs again.
Once one cuts through the rhetoric, it seems to be that this case boils down to a few key facts. First, was Kennedy, in fact, leading a prayer before games? The law is clear that the state cannot lead religious exercises or direct others to do so. The assistant football coach is a state actor. Thus, he cannot lead students in a prayer.
Thursday, August 11, 2016
Lawsuit Challenges South Carolina's Disturbing Schools Act, Can It Also Challenge How We Think About Schools Discipline?
Last year, the video footage of a high school female being jerked and flipped out of her desk, thrown to floor, drug across it, and then handcuffed captivated the nation. Its shock value carried it for nearly a week and was also enough to prompt some legislative hearings on the state's Disturbing Schools Act, which was the authority under which the officer purported to act. But alas, nothing came of it. The law remains in place. As is so often the case, these incidents are perceived as aberrational rather than a fundamental aspect of the discipline systems in our schools. Once the story passes, so does the impetus for change.
Yesterday, the ACLU revived the issue and the prospects of change, at least, on the issue of the Disturbing Schools Act. It filed a case in federal district court arguing that the criminal statute authorizing the arrest and punishment of individuals who disturb school violates due process. The Act is so broad that it, in effect, permits law enforcement to arrest students at their discretion for almost anything. With such broad power, students and teachers have no way of know exactly what does or does not violate the law. This, the ACLU argues, violates basic due process and liberty principles.
The story of one of the plaintiffs in the case, Niya Kenny, makes this point clearly. Niya was in the classroom last year when the officer drug the other student to the ground. Niya, understandably shocked by the incident, did what almost every other person under the age of thirty or so does in America when they see something like this: she pulled out her phone and videotaped it. For this, she too was arrested and charged under the Disturbing Schools Act. Regardless of whether school rules prohibit the possession of cellphones, their use during class time, or anything else, the idea that this type of activity could be construed as a crime is surely something I, a law professor, never would have considered. I could only imagine what Niya must have thought when the cuffs went on.
Maybe the most shocking aspect of this story, however, has been those who have defended the expansion of law enforcement inside schools and their use of violence on students over the past year. The response I have gotten is that I do not know how dangerous schools really are and, even if they are not, we should err on the side of caution. It is, after all, our children we are talking about. My position would purportedly leave our children defenseless against marauders and gun-carrying high schoolers.
A few days ago the New York Civil Rights Coalition sent a letter to Moraine Valley Community College to
call your immediate attention, and to request your formal response, to the Chicago Tribune August 4th piece, and in other media, about a college course at Moraine Valley Community College reportedly exclusively for black (African-American) students.
Especially concerning to us are quotes attributed to college publications and officials that explain and seemingly justify the racial restrictions on enrollment in the required college course, “College: Changes, Challenges, Choice.” According to published reports and the Chicago Tribune piece, a catalog of course listings Note specifies that registration to a section of the aforementioned course is “limited to African-American students.” The piece quotes the college’s assistant director of communications, Jessica Crotty, as explaining that the course, which meets for 8 weeks, is required to be taken by students in their first year. The catalog describes the course as one that “provides [the student] an opportunity to assess your purpose for college, assess your study strategies, set college and career goals, examine your values and decision-making skills, and develop an appreciation for diversity.”
In explaining and, arguably, defending racial restrictions on some sections of the course, Ms. Crotty is quoted as saying: “Sometimes we set aside sections for specific populations, including veterans and older students.” (Emphasis added). Ms. Crotty added, and I quote: “Students feel comfortable and are more likely to open up because they’re with other students who are like them.” (Emphasis added),
I find it strange indeed that a course that purports to guide and develop students’ “appreciation for diversity” employs racial separatism and segregation as acceptable and effective means for teaching that “appreciation” for diversity. Most shockingly, I find it incredible and disingenuous on the part of any educational institution and/or higher education official to equate offering courses in racially restrictive ways to that of clustering students in focus groups that are not themselves categories prohibited by law or regulation.
Worse, we are shocked and appalled by the notion that racial segregation can be argued for, much less justified, on the premise that statistical data or “social science evidence” may exist somewhere that allegedly supports the college’s policy and/or practice of restricting or conditioning enrollment in a course of study in any academic program by race or skin color. Such argumentation obscures and defies everything we know about the wrong-headedness of classifying and treating students differently by reason of their “race”, and separating them by race and/or skin color in the academy.
Separation or segregation by race defies state and federal laws, and Supreme Court decisions that prohibit differential treatment of black students or of other students because of their skin color or groupings that are premised and justified by stereotypes about their racial group.
Tell me, please, that these media reports are errant.
Tell me, please, that Moraine Valley Community College is not actually segregating students in academic courses by race and/or skin color, in ways that separate them from their peers of other skin colors and in ways that bar any student from enrolling in a course designated for students of a particular race only.
In explicit terms, it is not sufficient for the college to offer psychobabble rationalizations for reprehensible racial classifications and legally and morally suspect groupings. We find it especially abhorrent for a college to project and invoke the bogus argument that any principled or singular objection to classes and courses for blacks only is itself a manifestation of [whites’ and others’] hostility or racism towards blacks. That’s racial and sheer idiocy. Rather, the grouping of black students in a course designated only for “them” is the practice of racism; it is the same as the college decreeing that sections of a course will be restricted to students who are “white/Caucasian,” and, therein, justified in the guise that students of a certain skin color supposedly feel more comfortable in discussing sensitive matters with peers of ‘”their own kind.”
Classes for “whites only” and/or classes for “blacks only” are one and the same—sheer racism. Such racial restrictions violate every tenet of equal protection under the law, and of academic integrity—notably the open pursuit of knowledge. I need not recount here or remind you what the federal and state laws require and prohibit. Indeed, Moraine Valley Community College’s web site and mission statements make clear that its leadership and trustees are keenly aware of the legal framework and guidelines for avoiding discriminatory policies and practices: “It is the policy of Moraine Valley Community College not to discriminate on the basis of race, color…” or “conduct in its educational programs, activities or employment practices” discrimination based on race, color. Thus, we cannot abide the alibis and excuses offered by any official or spokesperson for a community college for registering students—or barring students’ registering or enrollment to any academic offering—on the basis of any student’s race or skin color.
The mocking of the law and the sheer arrogance implicit in decision-making based on race and skin color “differences” are at hand. Any policy or effort that restricts enrollment to a college course on such objectionable and prohibited racial grounds—is profoundly obvious and disturbing. Such racial discrimination raises troubling and substantial questions about the college’s commitment to state and federal law—indeed to the rule of law—and to its commitment to the open pursuit of knowledge which is a fundamental of the academic experience and mission. To defy the law and regulations and academic principles in such a flagrant fashion suggests the lowering if not outright abandonment of rigorous standards of the college’s accreditation. That is why we are addressing this open letter to the college’s president and to the president of the Higher Learning Commission, the college’s accrediting authority. We are also copying this letter to the Chair of the Board of Trustees, because it is our belief that the trustees share responsibility for upholding the law and for fulfilling the college’s academic mission without compromise with fads and racist shenanigans.
With confidence, we are of the opinion that a self-respecting board of trustees and Higher Learning Commission will promptly recognize and act on their duty to intervene and to correct any violations of law and public policy and to remedy any diminution of academic standards. The imposition of any racial qualification or restriction on any student, of any race, to enroll in any college course because of his/her race or skin color, cannot stand. The objection to such race-based restrictions must by definition take exception to any purported rationalization that the affected or excluded racial group will not contest the racial classification. Likewise, we are not impressed with the argument that the affected minority group or the excluded members of other racial groups may “opt” to enroll in alternate courses that do not have the racial restrictions.
Let us be clear; racial segregation as offered or practiced by a community college is objectionable on legal and educational grounds. That there are some blacks, and whites, who advocate such restrictions on course enrollment, matters not the least bit to us. In our view, racial restrictions and qualifications for a course are improper classifications and are evidence of discrimination per se, in purpose and effect. As my mentor, Dr. Kenneth B. Clark, the social psychologist, observed while he was alive—in objecting to the then fashion of separatist fads that were sweeping some college campuses, commented:
“In 1954 [when the U.S. Supreme Court outlawed enforced segregation in public education] it would have been the consensus in the black and white liberal communities that white racism would have gained its greatest triumph had it been able to persuade its black victims that segregation was not only acceptable but desirable in itself, and that the justification for this separatism was color alone.’
Segregation by race then and today is not acceptable; and it is not desirable.
Higher education leaders should express the strongest opposition and outrage over this latest fad and manifestation of racism—that of stereotyping, steering, and segregating students by their “race” and/or skin color into separate courses and classrooms.
If these reports that I have described to you have any ring of truth to them, we urge you to rethink and remove all racial restrictions and qualifications for course-taking at Moraine Valley Community College, forthwith.
The College President, Sylvia Jenkins, immediately recanted, indicating that the "decision has been made to remove all racial restrictions and qualifications for course-taking at Moraine Valley Community College." If winning were only that easy in other instances.
Wednesday, August 10, 2016
Unequal Access Report: Twenty Percent of California's Charter Schools Have Exclusionary Admissions Policies
The ACLU Foundation of Southern California and the Public Advocates have released Unequal Access: How Some California Charter Schools Illegally Restrict Enrollment. Unequal Access reports that over 20% of California’s charter schools (about 253), have exclusionary admissions policies. At least 22 of those schools have policies that expressly exclude low academic performers, the very set of students who are often cited to justify charter creation. Cribbed from the report’s summary:
Although charter schools may be privately controlled and receive non-government funding, they are part of California’s public education system. The California Constitution requires all students to have equal access to educational opportunity, and the state legislature made this principle clear in the California Charter Schools Act, which plainly requires charter schools to “admit all pupils who wish to attend.” Except for limitations due to space, charter schools may not enact admissions requirements or other barriers to enrollment and must admit all students who apply, just as traditional public schools cannot turn away students.
Our review of California charter schools’ reveal that over 20% have written policies reveals that illegally prevent students from enrolling or remaining at their schools because the policies:
- Deny enrollment to students who do not have strong grades or test scores.
- Expel students who do not maintain strong grades or test scores.
- Deny enrollment to students who do not meet a minimum level of English proficiency.
- Discourage or preclude immigrant students from attending by requiring parents/guardians or
- students to provide Social Security numbers or other citizenship information before enrollment.
- Select students based on onerous pre-enrollment requirements such as student or
- parent/guardian essays or interviews.
- Refuse to enroll students unless their parents/guardians volunteer or donate money to the school.
The report recommends that charter school operators eliminate all exclusionary admission requirements that restrict student enrollment on the above grounds.
On May 19, 2011, F.M., a thirteen-year-old seventh grade student at Cleveland Middle School of Albuquerque Public Schools, generated several fake burps during class, causing several students to laugh. The teacher ordered F.M. to stop, but F.M. ignored her. The teacher then asked F.M. to leave the classroom and sit in the hallway. F.M. complied, but once in the hallway, he continued to disturb the classroom by leaning into the entranceway of the classroom to burp and laugh. At that point, the teacher requested assistance with the student on a school-issued radio. A school resource officer (SRO) appeared in response to her request. Based on what the SRO observed and heard from the teacher, the SRO decided to arrest F.M. for violating N.M. Stat. Ann. § 30-20-13(D), which says that “[n]o person shall willfully interfere with the educational process of any public or private school by committing . . . any act which would disrupt, impair, interfere with or obstruct the lawful mission, processes, procedures or functions of a public or private school.” The SRO conducted a pat-down search on F.M. and found nothing, handcuffed him, put him in a patrol car, drove him to a juvenile detention center, and booked him. The SRO later admitted that F.M. did not pose a flight risk and was not combative, but was cooperative. After the juvenile detention center completed its risk assessment of F.M., it released him to the custody of his mother with no further actions. The school, however, imposed a one-day suspension. F.M. served his suspension and did not return for the remainder of the school year.
F.M.’s mother filed a suit against the SRO on behalf of her son claiming that his Fourth Amendment rights were violated when her son was arrested and handcuffed. She claimed that any reasonable officer should have known that burping was not a criminal offense and that the force used to facilitate the arrest was unnecessary. The United States Court of Appeals for the Tenth Circuit, however, upheld the lower court’s dismissal of the case, awarding the SRO qualified immunity. According to the court, the plaintiff had failed to establish that the SRO violated a constitutional right of F.M.’s that was clearly established at the time of the alleged unlawful activity. The Tenth Circuit based its ruling primarily on its determination that the SRO’s understanding that he had probable cause to arrest F.M. under section 30-20-13(D) was “objectively reasonable—even if mistaken.”
While one could disagree with the majority over whether the SRO violated F.M.’s “clearly established” constitutional right (as one circuit judge on the panel did), to me a larger question remains that the court could not address: why do allow law enforcement officers to become involved in student behavioral matters that do not endanger other members of the school community? This is not to say that we shouldn’t hold students accountable for misbehaving in the classroom. We should. But as I explain here, the consequences of involving a youth in the justice system are severe for both the youth involved and for our nation as a whole. In fact, even an arrest that does not ultimately result in an incarceration can have detrimental, life-altering effects on students. Several empirical studies confirm that just an arrest often leads to lower academic achievement, dropping out of school, and future involvement in the justice system. Furthermore, overly-punitive school environments generally do not lead to positive outcomes, even for those students at the school who do not misbehave. Empirical studies suggest that an overly-punitive school environment can alienate students, destabilize the learning climate, foster more disorder in the long run, and impede academic achievement for all students at the school.
As I explain elsewhere, schools do not have to (and should not) over-rely on SROs, harsh surveillance measures, and exclusionary tactics to maintain safe and orderly learning climates. Rather, there are other evidence-based measures that schools can implement to promote student discipline and safety without putting more students on a pathway from school to prison. But if schools do choose to rely on SROs, it is essential that they enter into memorandums of understandings (MOUs) to ensure that SROs do not involve themselves in routine discipline matters with students, like burping in a classroom.
Monday, August 8, 2016
First Circuit: Good Academic Performance Is Relevant But Not Determinative For Special Education Eligibility
The First Circuit published an opinion last week dealing with the ambiguity of the "need" provision in the Individuals with Disabilities Education Act. The parents of a seventh-grader, called Jane Doe in the opinion, sued the local school district after it decided that Jane did not require special education in reading fluency because she was doing well in school. Jane had received special education services for years to improve her reading skills. Jane's parents argued that the "need inquiry" under the IDEA should determine whether a child needs special education to remediate the underlying disability. The school district argued that the need inquiry should determine whether a child needs special education to benefit from the school curriculum. If the child is doing well academically, the district argued, the child no long qualified for special education services. The case centers around the text of Section 1401(3)(A)(ii) of the IDEA that provides that a child determined to have one of the qualifying disorders under the first prong must also, “by reason thereof,” “need[ ] special education and related services” to be eligible for special education. 20 U.S.C. § 1401(3)(A)(ii). The First Circuit found that "Jane's overall academic performance could potentially be relevant in determining whether she has a reading fluency deficit, the district court erred in relying on such evidence without regard to how it reflects her reading fluency skills." The circuit court vacated and remanded the judgment in favor of the district, holding that the district court weighed Jane's overall academic achievement too heavily when the child's deficiency in reading fluency was sufficient by itself to support eligibility and that the district court afforded excessive deference to the hearing officer's determinations. In a concurrence, Circuit Judge Lipez offered guidance cautioning courts to not solely look at "an absolute standard of educational performance, the satisfaction of which would automatically disqualify a child from eligibility under the need prong." The case is Doe, v. Cape Elizabeth Sch. Dist., No. 15-1155, 2016 WL 4151377 (1st Cir. Aug. 5, 2016).
Thursday, July 28, 2016
On July 11, the Southern Poverty Law Center (SPLC) filed a lawsuit alleging that the school funding provisions of the state charter school law passed by the Mississippi Legislature are unconstitutional.
The complaint, in Araujo v Bryant, points out that the Mississippi Constitution requires schools to be under the supervision of the State and local boards of education in order to receive public funding. However, under the Charter School Act (CSA), charter schools receive public funding even though they are exempt from the oversight of the State Board of Education, the Mississippi Department of Education, and local boards of education.
The lawsuit calls for the Court to strike down the funding provisions of the CSA.
"A school operating outside the authority of the state board of education and the local school board cannot expect to receive public taxpayer money," said Jody Owens, managing attorney for SPLC's Mississippi office. "The state constitution is clear on this matter."
Charter schools in Mississippi are accountable to the Mississippi Charter School Authorizer Board, a body appointed by the governor and lieutenant governor, which receives three percent of the public tax dollars going to the charters it authorizes.
The complaint explains that two charter schools are currently operating in Mississippi, both within the boundaries of the Jackson Public School District (JPS). In one school year, more than $1.85 million was diverted from the local district to fund these schools. That amount could have paid the salaries of 42 public school teachers, according to the complaint. Given that a third charter school is set to open within JPS's geographic boundaries, the complaint notes that the local schools stand to lose more than $4 million in the 2016-17 school year.
The lawsuit warns that the opening of more charter schools will compound the financial harm. There are currently applications pending for four more charter schools. Each charter school would be located within the Jackson Public School District, drawing more funding away from the schools that are under the local school board.
"I sent my children to a public school because I believe in our public schools," said Cassandra Overton-Welchlin, a plaintiff in the case and the mother of two children enrolled in the Jackson Public School District. "I'm outraged that state and local tax dollars are funding charter schools in a way that threatens the existence of important services, including services for those with special needs, at my children's school. As a taxpayer, I expect my property tax dollars will be used to support local public schools, which educate the vast majority of students in Jackson."
The lawsuit was filed in the First Judicial District of the Chancery Court of Hinds County, which includes Jackson, the state capital.
Wednesday, July 27, 2016
The Office for Civil Rights issued this press release yesterday:
The U.S. Department of Education’s Office for Civil Rights (OCR) today issued guidance clarifying the obligation of schools to provide students with attention-deficit/hyperactivity disorder (ADHD) with equal educational opportunity under Section 504 of the Rehabilitation Act of 1973.
“On this 26th anniversary of the Americans with Disabilities Act, I am pleased to honor Congress’ promise with guidance clarifying the rights of students with ADHD in our nation’s schools,” said Catherine E. Lhamon, assistant secretary for civil rights. “The Department will continue to work with the education community to ensure that students with ADHD, and all students, are provided with equal access to education.”
Over the last five years, OCR has received more than 16,000 complaints that allege discrimination on the basis of disability in elementary and secondary education programs, and more than 10 percent involve allegations of discrimination against students with ADHD. The most common complaint concerns academic and behavioral difficulties students with ADHD experience at school when they are not timely and properly evaluated for a disability, or when they do not receive necessary special education or related aids and services.
Today’s guidance provides a broad overview of Section 504 and school districts’ obligations to provide educational services to students with disabilities, including students with ADHD. The guidance:
- Explains that schools must evaluate a student when a student needs or is believed to need special education or related services.
- Discusses the obligation to provide services based on students’ specific needs and not based on generalizations about disabilities, or ADHD, in particular. For example, the guidance makes clear that schools must not rely on the generalization that students who perform well academically cannot also be substantially limited in major life activities, such as reading, learning, writing and thinking; and that such a student can, in fact, be a person with a disability.
- Clarifies that students who experience behavioral challenges, or present as unfocused or distractible, could have ADHD and may need an evaluation to determine their educational needs.
- Reminds schools that they must provide parents and guardians with due process and allow them to appeal decisions regarding the identification, evaluation, or educational placement of students with disabilities, including students with ADHD.
In addition to the guidance, the Department also released a Know Your Rights document that provides a brief overview of schools’ obligations to students with ADHD.
The mission of OCR is to ensure equal access to education and to promote educational excellence throughout the nation through the vigorous enforcement of civil rights. Among the federal civil rights laws OCR is responsible for enforcing are Title VI of the Civil Rights Act of 1964; Title IX of the Education Act of 1972; Section 504 of the Rehabilitation Act of 1973; and Title II of the Americans with Disabilities Act. For more information about OCR and the anti-discrimination laws that it enforces, please visit its website and follow OCR on twitter @EDcivilrights.
Monday, July 25, 2016
It is not altogether clear what Governor Christie was thinking earlier this month/late last month when he offered this radical proposal (as reported by the Washington Post):
Christie is proposing a replacement for the current weighted-student formula that would move a lot of money away from the urban districts to suburban districts. In his proposal, Christie said that he wants to give every school district in the state the same amount of per-student aid per district — $6,599 — in what he said would help lower property taxes in many suburbs. Special education funding and charter schools may be exempt from the new formula, he said.
“It is time to change the failed school funding formula and replace it with one that will force the end of these two crises — the property tax scandal and the disgrace of failed urban education,” Christie said in a speech at a high school on June 21. . . . An analysis of the “Fairness Formula” by Mark Weber and Ajay Srikanth says that it will hurt many districts serving large numbers of at-risk students. . . . It will, the analysis said, reward the wealthiest districts — which are already paying the lowest school tax rates as measured by percentage of income — and will force the poorest districts to cut their budgets, increase local property taxes or both. The authors of the analysis also disputed Christie’s charge that schools enrolling high percentages of at-risk students “have failed,” noting that research shows at-risk students and students with limited English proficiency have made big gains on test scores over the past two decades.
In some respects, this move is not out of character. Christie cut over a billion dollars in funding for low-income districts during the recession, before the New Jersey Supreme Court forced the state to replace a large chunk of the funds--those reserved for the plaintiffs districts in the long running Abbott line of cases. In another respect, the timing is strange. Christie made time during his auditions for vice president and national policy arguments to go after schools at home. From afar, I had almost forgotten that he was still governor of New Jersey. This timing strikes me as odd, save for the fact that his attack on schools may be more about tax policy than school policy. Suburban tax payers would get a huge windfall under his proposal. One can only hope that now that his chance for a vice presidency is gone, so too are his designs for a new funding formula.
Thursday, July 21, 2016
New Transgender Discrimination Case Against Wisconsin School District Could Be Quick Repeat of Grimm or Present Several Wrinkles
Ashton Whitaker, A transgender high school student in Wisconsin, has filed suit against Kenosha School District. He alleges that the district has denied him access to male restrooms consistent with his gender and continues to refer to him by the female name on his birth certificate. He argues that this treatment violates Title IX and the U.S. Constitution. His factual and legal claims are nearly identical to those in Grimm v. Gloucester, in which the Fourth Circuit earlier this year sided with the student. Whitaker's case could be a simple repeat or move the law and courts in new directions.
Will the school district contest the question of whether Title IX protects transgender students in access to restrooms or will it simply contest Whitaker's version of the facts? If it concedes the facts and only contests the law, Grimm is the only case on point at the moment. Thus, the district court would a) rule quickly in favor of Whitaker, b) affirmatively counter the reasoning in Grimm or c) take the route the 6th Circuit did in the gay marriage cases, holding that until the Supreme Court or its own circuit speaks, it will rule in favor of the district. The same options would presumably exist for the Seventh Circuit Court of Appeals in reviewing the district court.
Option A would create two circuits firmly aligned in favor of transgender students and make the grant of cert in Grimm or Whitaker's case less likely (Grimm is currently pending before the Supreme Court). Option B or C would eventually create a circuit split and, even if the Court denies cert in Grimm, make a grant of cert in Whitaker's case more likely a couple of years from now.
Also interesting in Whitaker's case will be questions of qualified immunity. The district officials may argue that regardless of what the law requires moving forward that the law was unclear at the time they acted. This is after all new law. This was attempted in several cases dealing with sexual orientation claims over the past decade or two. On the other hand, the Office for Civil Rights has held a firm position for longer on this issue. And in Title IX cases, the Court has tended to rely heavily on OCR policy guidance to provide the necessary notice of illegality to school districts.
One thing, however, is clear: Whitaker is represented by exceptional counsel. Relman, Dane & Colfax has taken his case. The firm has been nationally recognized for its civil rights work and victories for decades.
Wednesday, July 20, 2016
New Study Confirms the Role Race Plays in School Choice, But Past Experience and Common Sense Offer a Solution
A recent study of school choice by Steven Glazerman and Dallas Dotter reveals the lingering cold-hard truth that race still matters far too much in parents' decision of where to send their child to school. In their paper, Market Signals: Evidence on the Determinants and Consequences of School Choice from a Citywide Lottery, they find that:
- Parents trade off school demographics and academic performance with distance when choosing schools.
- Parents tend to prefer schools where their children have at least some peers of the same race or ethnicity, but some parents also prefer a diverse school to a homogeneous one.
Preferences vary by race, income, and grade level.
- Simulations suggest that parent preferences, if allowed to dominate school assignment (with no capacity constraints), translate into more racial and economic integration and higher enrollment in high-performing schools.
This last point bears further explanation. The study finds that current school choice is heavily influence by race, but race preferences are not linear. Rather, there are tipping points, at which a school becomes too heavily one racial groups and parents of that group appear to prefer more diversity. The problem in DC is that the system lacks the controls and choices to bring this diversity interest into play. In simulations, however, the study finds that school choice could improve integration. In particular, they assume a world in which the district closed more low performing schools and increased capacity in higher performing schools.
As a side note, this appears to be the exact opposite of what DC has done over the past decade. A lawsuit by special education and minority students in federal district court alleged that DC had closed numerous low performing schools but simply lumped those students into larger low performing schools. Higher performing schools and white families had been almost completely unaffected by school assignment closures and policies in the DC. See more here.
Regardless, this new study, coupled with what half a century of social science has demonstrated about the negative effects of concentrated poverty in schools, confirms why the various choice programs proposed at the federal and state level are such a bad idea. For choice to improve educational opportunity, policy makers have to be far more careful about the context in which they apply it.
The million dollar question is how we might make race matter less in choice program. The answer may be surprising to some: consciously consider race from the outset. Controlled choice plans that account for race and place caps on racial and poverty concentrations have proven extraordinarily effective in creating and maintaining integration. And, as detailed in In Defense of Voluntary Desegregation, once districts achieve some level of demographic balance in the earlier years of a choice program, parents are then forced to begin making school choice based on factors other than race. In other words, race cannot factor in a parent's school choice because demographic are consistent across all the schools they might consider. Within this context, geography, academic programs, and other relevant factors will weigh more heavily. In this way, schools consideration of race is actually the way to make race no longer matter.
Monday, July 18, 2016
elow is the press release on this crucially important bill:
WASHINGTON – U.S. Senator Chris Murphy (D-Conn.), member of the U.S. Senate Health, Education, Labor and Pensions (HELP) Committee, and Congresswoman Marcia L. Fudge (Ohio-11), Ranking Member of the Subcommittee on Early Childhood, Elementary and Secondary Education of the U.S. House Committee on Education and the Workforce, on Tuesday introduced the Stronger Together School Diversity Act of 2016 to promote diversity in schools. The bill builds on President Obama’s FY 2017 Stronger Together budget proposal, and consists of a voluntary program to support the development and expansion of new and existing community-driven strategies to increase diversity in America’s schools. In June, Murphy joined U.S. Education Secretary John B. King Jr. at an event in the U.S. Capitol to discuss the opportunity for increased diversity in schools and communities to drive positive student outcomes in school and in life.
An April 2016 Government Accountability Office report found that the number of socioeconomic and racially segregated schools is increasing, negatively impacting students nationwide. The data shows that poor, segregated schools receive fewer resources, offer students fewer educational opportunities and take more disciplinary actions. Expanding socioeconomic and racial diversity in schools will reverse these troubling trends and help future generations of students receive the education they deserve. In fact, students from low-income households who attend diverse schools are nearly 70 percent more likely to attend college than students from low-income households who attend high-poverty schools. TheStronger Together School Diversity Act of 2016 provides planning and implementation grants to help school districts find voluntary local solutions, implement new strategies, and expand existing diversity initiatives.
“Diverse schools help students. That’s the bottom line,” said Murphy.“We’re introducing this bill because districts need the resources to enact voluntary measures that will make schools more diverse and reduce the economic and racial isolation that sadly exists in places like Hartford and Bridgeport. Looking back, some of the proudest moments in our nation's history have come when the federal government prioritizes racial integration in our schools. That’s why Washington cannot sit on the sidelines as racial and socioeconomic divisions in our schools get worse and our kids’ schools suffer.”
“Brown v. Board ruled more than 60 years ago that ‘separate is not equal,’ yet it is obvious that many schools are suffering from the effects of “de facto” segregation,” said Fudge. “As Ranking Member of the House Subcommittee on Early Childhood, Elementary and Secondary Education, increasing diversity in staff, resources, and student populations in our public schools is a top priority. That’s why I am pleased to be the House sponsor of The Stronger Together School Diversity Act of 2016. This bill will help bring parity of access and resources to schools across the nation, provide a platform to address inequities within our current education system, and help give all of our students a chance to succeed.”
“Today, diversity is not a nicety but a necessity,” Secretary King said.“Diversity is critical, not just for some students, but for all of our students. There are communities and neighborhoods and schools all over this country where educators, parents, and students understand this and are pushing for more diversity in their schools. The legislation introduced by Senator Murphy and Congresswoman Fudge will support and expand these efforts.”
Philip Tegeler of the National Coalition on School Diversity said,“School integration isn’t just important for academic achievement, although the evidence on achievement is very strong. Bringing children of different backgrounds together also helps to reduce racial prejudice and teaches children how to live and work together across racial and class lines. This bill is an important step toward reversing the trend of resegregation of our public schools that was recently documented by the Government Accountability Office, and it will provide funding for cities and towns that have recognized the importance of bringing their communities back together. What is unique about this bill is that it relies on substantial financial incentives to encourage progress on school integration.”
The Stronger Together Diversity Act has been endorsed by the National Education Association, American Federation of Teachers, the National Urban League, National Women’s Law Center, National Coalition on School Diversity, Association of University Centers on Disabilities, Magnet Schools of America, Lawyers’ Committee for Civil Rights Under Law, Poverty & Race Research Action Council, Civil Rights Project - UCLA, National Council of Jewish Women, and Girls Inc..
The Stronger Together School Diversity Act:
- Authorizes $120 million to provide planning and implementation grants to support voluntary local efforts to increase socioeconomic and racial diversity in schools.
- Supports school districts, independently or in collaboration with neighboring districts, as well as regional educational authorities and educational service agencies.
- Grants could fund a range of proposals, including (but not limited to):
- Studying segregation, evaluating current policies, and developing evidence-based plans to address socioeconomic and racial isolation;
- Establishing public school choice zones, revising school boundaries, or expanding bussing service;
- Creating or expanding innovative school programs that can attract students from outside the local area;
- Recruiting, hiring, and training new teachers to support specialized schools.
Wednesday, July 13, 2016
The State of Mississippi is being sued by parents who contend that a recent law unconstitutionally district public tax dollars from public school districts revenues to charter schools. Under the Mississippi Charter School Act of 2013 (CSA), charter schools in a public school district are entitled to a share of that district's state ad valorem tax revenue. The lawsuit's plaintiffs contend that a provision of the Mississippi Constitution forbids funding any school that is not a "free" school under the control of either the State Department of Education or district officials. (Mississippi's charters are instead supervised by an independent governing board.) The plaintiffs allege that the Jackson school district has already given $1.8 million of its funding to the two currently operating charter schools. A third charter is set to open in the coming school year,and the Jackson district school could be required to give up to $4 million to charter schools, resulting in shortfalls in personnel and education quality. The plaintiffs are represented by the Southern Poverty Law Center, and the complaint in Arujo v. Bryant may be viewed on scribd here.
Monday, July 11, 2016
Baquerizo v. Garden Grove Unified Sch. Dist., No. 14-56464, 2016 WL 3435270 (9th Cir. June 22, 2016) - The Ninth Circuit Court of Appeals recently held in that a school district's offers to place an autistic student in a small classroom rather than a mainstream one did not deny the student a free appropriate public education (FAPE). Baquerizo v. Garden Grove Unified Sch. Dist., No. 14-56464, 2016 WL 3435270 (9th Cir. June 22, 2016). The student and his guardian sued the school district under the Individuals with Disabilities Education Act (IDEA) after the district determined that he would benefit from a small class for students with mild to moderate disabilities rather than a mainstream classroom and refused to reimburse the cost of the student's private education during the following two school years. The plaintiffs had previously sued the district for failing to provide a FAPE and won; the Ninth Circuit affirmed in 2011 holding that the student was entitled to full reimbursement of his private tuition costs because the public school did not meet his educational needs. In this most recent decision, the Ninth Circuit deferred to the school district's decision that the smaller classroom would be better for the student's academic needs even though he may have benefited socially from a typical classroom setting.
James v. D.C., No. 14-CV-02147 (APM), 2016 WL 3461185 (D.D.C. June 21, 2016) -- The federal district court found that the District of Columbia Public School (DCPS) system did not comply with an intellectually disabled student's individualized education program (IEP) requiring her to receive specialized instruction, even though the school did not have a special education teacher to provide it. The district court found the student's guardian, her grandmother, was apparently unaware that the school was not carrying out student's IEP, and thus allowed her to remain enrolled in the school throughout the school year even though the school was not able to implement the IEP. The district court remanded the issue of whether the student had a speech and language disability to the Hearing Officer to determine whether DCPS failed to provide a timely speech-language evaluation as required by the IDEA.
Friday, July 8, 2016
Kansas Legislature Meets Court's Equitable Funding Duty Deadline, Allowing Schools to Open in the Fall by Molly Hunter
On June 27, 2016, four days prior to the Kansas Supreme Court's July 1 deadline, the parties in the Gannon educational opportunity lawsuit filed a stipulated agreement with the Court. They documented the Legislature's commitment to distribute funding to low-wealth school districts so as to comply with the state constitution.
The Kansas Supreme Court issued an order the next day indicating that the State -- in adopting Substitute for House Bill 2001 -- had complied with the Court's most recent order and could use the revised system to fund the public schools.
"Plaintiffs are extremely pleased that schools will be opening in the fall," said Alan Rupe, co-counsel for plaintiffs, "and that funding will be distributed in a manner that comports with the Kansas Constitution's equity requirement."
The Legislature's failure to maintain a fair and adequate state school funding system almost led to a constitutional crisis. But in a special session called to address the fair distribution issue, the Legislature found a way to add $38 million to the state aid total and allocate it to the underfunded districts.
Nonetheless, the Gannon case is not resolved because the Kansas Constitution also requires adequate school funding. The three-judge Gannon Trial Court Panel heard the evidence on adequacy and ruled that the State is underfunding its schools. The State appealed to the Kansas Supreme Court, which recently scheduled oral argument on this question for September 21.
Each side will have 60 minutes to present argument to the Court on two issues: (1) whether the Legislature has met its duty under Article 6 of the Kansas Constitution regarding adequacy; and (2) what remedy would be appropriate if the Court affirms the Panel's previous holding that the current funding levels are inadequate.
Education Law Center Press Contact:
Molly A. Hunter
Education Justice, Director
973-624-1815, x 19
Texas, Joined By Eleven States, Seeks Nationwide Injunction To Block DOE's Transgender Anti-discrimination Policy
Texas Attorney General Ken Paxton is seeking a nationwide preliminary injunction to stop the enforcement of the Department of Education's Dear Colleague letter to schools directing them not to discriminate against transgender students, particularly in students' choice of bathrooms. Paxton, along with Alabama, Arizona, Georgia, Kentucky, Louisiana, Mississippi, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin, applied for the injunction on Tuesday asking the Northern District of Texas to enjoin the DOE's transgender-inclusive policy nationwide because the policy applies all of the nation's public schools. To persuade the district court that it has to the power to enjoin the policy nationwide, Paxton is relying on the Fifth Circuit's ruling last year granting injunctive relief that halted enforcement of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which provided for legal presence for illegal immigrants who were parents of citizens or lawful permanent residents. See Texas v. United States, 809 F.3d 134 (5th Cir. 2015), as revised (Nov. 25, 2015), cert. granted, 136 S. Ct. 906 (2016). The states' preliminary injunction motion is here and the original report at the Texas Tribune is here.
The growing common refrain, urged on by no less than candidates for the presidency, has been to contrast our nation's investments in education versus incarceration. Civil rights advocates have, likewise, lamented the school-to-prison pipeline that is, no doubt, affected by these investments. Yesterday, the U.S. Department of Education released some cold hard facts substantiating these notions. Quite frankly, the numbers were shocking even to me.
Among the highlights were the following:
- From 1979–80 to 2012–13, public PK–12 expenditures increased by 107 percent (from $258 to $534 billion),4 while total state and local corrections expenditures increased by 324 percent (from $17 to $71 billion) ― triple the rate of increase in education spending.
- Over the same 33-year period, the percentage increase in state and local corrections expenditures varied considerably across the states, ranging from 149 percent in Massachusetts to 850 percent in Texas. PK–12 expenditure growth rates were considerably lower, but still varied widely across states, ranging from 18 percent in Michigan to 326 percent in Nevada.
- All states had lower expenditure growth rates for PK–12 education than for corrections, and in the majority of the states, the rate of increase for corrections was more than 100 percentage points higher than the rate for education.
- From 1989–90 to 2012–13, 46 states reduced higher education appropriations per full-time equivalent (FTE) student. On average, state and local higher education funding per FTE student fell by 28 percent, while per capita spending on corrections increased by 44 percent.
The study also drew on social science literature to suggest the effects of these funding trends:
Researchers have found connections between poor educational outcomes and incarceration. Among state prison inmates, available data suggests that two-thirds have not completed high school (BJS 2009). . . . Researchers have estimated that a 10 percent increase in high school graduation rates may result in 9 percent decline in criminal arrest rates (Lochner and Moretti 2004). A variety of studies have suggested that investing more in education, particularly targeted toward at-risk communities, could achieve crime reduction without the heavy social costs that high incarceration rates impose on individuals, families, and communities (Belfield et al. 2006; Reynolds et al. 2001; Heckman et al. 2010).
Investments in education can reduce criminal activity by altering student behavior and improving labor market outcomes (CEA 2016). Investments in early childhood education can lead to reduced incarceration later in life, in part through improving educational attainment (Currie 2001). . . .Evidence also shows that education provides a pathway to help justice-involved people restore full participation in their communities. For example, one study found that incarcerated individuals who participated in high-quality correctional education — including post-secondary correctional education — were 43 percent less likely to return to prison within three years than those who did not participate in correctional education programs (Davis et al. 2013). Furthermore, researchers estimate that for every dollar invested in correctional education programs, four to five dollars are saved on three-year recidivism costs (Davis et al. 2013).
This study also dovetails perfectly with yesterday's post about the NEA's policy position on school discipline. At its core, that policy statement makes two points: current discipline policy is devastating educational outcomes for millions of students each year, and reversing that course requires specific investments in education, most notably teacher training and development. If you buy that proposal, it is no surprise what the Department of Education's study suggested the money spent on incarceration ought to be put to:
Though many factors contribute to student success, research indicates that teacher effectiveness is perhaps the most important in-school factor related to students’ success in school (Rivkin et al. 2005). Further, research suggests that investing more in teacher salaries could result in an overall improvement in the quality of the teaching workforce and that higher salaries are associated with higher teacher retention (Dee and Wyckoff 2015; Kelly 2004; Guarino et al. 2006).
In other words, not only are we driving money toward incarceration, the money we drive is likely a key factor in why we have unresolved discipline challenges in schools. Those unresolved education issues fuel the school-to-prison pipeline, creating a vicious circle that we cannot seem to escape. This vicious circle lies at the core of the final chapters of my book, Ending Zero Tolerance, and my forthcoming article, Reforming School Discipline. In them, I argue that school quality conversations and school funding litigation must incorporate school discipline concerns. We cannot continue to discuss them as separate issues. Social science firmly demonstrates how closely connected discipline and school quality are. One cannot be improved without the other. Unfortunately, this new federal study suggests our funding patterns are making both worse. It is time to finally start connecting the dots.
Thursday, July 7, 2016
Nation's Largest Teacher Union Adopts Policy Statement on School Discipline and the School-to-Prison Pipeline, Rebalancing the Politics of Reform
Yesterday, the Nation's largest professional employee organization and largest teacher union, the National Education Association (NEA), adopted an official policy position on school discipline and the school-to-prison pipeline. The prefatory language of the policy appropriately recognizes the major issues:
The school-to-prison pipeline disproportionately places students of color, including those who identify as LGBTQ, have disabilities, and/or are English Language Learners, into the criminal justice system for minor school infractions and disciplinary matters, subjecting them to harsher punishments than their white peers for the same behaviors. The school-to-prison pipeline diminishes their educational opportunities and life trajectories. All educators—which includes every school employee—are key to ending the school-to-prison pipeline.
NEA’s Resolutions state NEA’s firm belief that schools must be safe and welcoming for all students, discriminatory toward none, and focused on educational practices that reach the whole child and disciplinary policies that emphasize prevention and rehabilitation over punishment (see, e.g., Resolutions B-6, B-14 (f – h, k) B-71, C-7, C-28, C-39). NEA’s Resolutions also reflect NEA’s belief “that all education employees must be provided professional development in behavior management, discipline, [and] conflict resolution,” (D-18) and that both education employees and parents need training “to help students deal with stress and anger.” (C-7). NEA also believes that equally important is deepening educator awareness about their actions and the impact on students. The purpose of this Policy Statement is not to modify existing NEA Resolutions, but to explain how NEA will act on its already stated beliefs to end the school-to-prison pipeline.
It then goes on to indicate that the "NEA and its members are committed to changing the policies and practices of the schools in which we work to end the school-to-prison pipeline." It says that work will focus on five major points: "Eliminating Disparities in Discipline Practices; Creating a Supportive and Nurturing School Climate; Professional Training and Development; Partnerships and Community Engagement; and Student and Family Engagement."
The NEA's official adoption of this policy is key for several reasons. First, teachers are regularly caught between the demands of ending harsh discipline and doing their job well. As I emphasize in Ending Zero Tolerance, it is not enough for districts to just adopt policies that limit harsh discipline. They must also support teachers with the training and alternative processes that make this possible at the classroom level. If schools simply prohibit harsh discipline and do nothing else, they may very well make matters worse, as untrained teachers may feel that their only option is to overlook misbehavior. The NEA policy statement acknowledges this and asks school districts to take the steps necessary to allow teachers to manage discipline appropriately.
Second, teachers who do not feel supported on these issues have pushed back against changes in central administration's changes to discipline policy. The most notable examples of this have been in Los Angeles, Minneapolis, and Philadelphia. In the Philadelphia, the local union formally came out against the district's new discipline policy. In Minneapolis, a teacher's story of the horrors he was forced to watch in the classroom went viral. The NEA's new policy now provides a huge counterweight to teachers' skepticism. It articulates a way forward that serves both the interests of teachers and students.
Third, this statement now aligns the federal government, grassroots communities, and the nation's largest teacher union against harsh discipline. This could leave those who would oppose reform as the so-called "odd-men-out." But as the NEA makes clear, ending harsh discipline in a way that improves education for all students and teachers will not happen by simply writing new rules or issuing statements. It requires states and districts to invest in better discipline systems and supports. In this respect, it places the ball in the court of legislative bodies, implicitly asking whether they will commit resources to reform.
Thursday, June 30, 2016
Scholarship: Gerber On Justice Thomas And Fisher; Gomez-Velez On Philanthrocapitalism And Education Reform
Clarence Thomas, Fisher v. University of Texas, and the Future of Affirmative Action in Higher Education
Scott D. Gerber (Ohio Northern Univ.) examines Justice Thomas' Fisher I opinion in an recent article (50 Rich. L.R. 4, (2016)). From the abstract posted on ssrn.com: This article originated as a paper for an affirmative action symposium at the University of Chicago Law School sponsored by the Midwest Black Law Students Association. The article places Justice Thomas’s concurring opinion in Fisher v. University of Texas (“Fisher I”) in the larger context of his voluminous writings on race in general and affirmative action in particular. The article also discusses the commentary on Justice Thomas’s Fisher I opinion because the reaction to what he writes, especially on matters of race, is almost as important as the opinions themselves. The article concludes with some brief comments on Schuette v. Coalition to Defend Affirmative Action, a 2014 case about the constitutionality of a 2006 amendment to the Michigan state constitution banning racial preferences in Michigan, and on Fisher v. University of Texas (“Fisher II”), which the Court will be deciding by the end of June 2016. Justice Scalia’s recent death figures prominently in the concluding section.
Common Core State Standards and Philanthrocapitalism: Can Public Law Norms Manage Private Wealth’s Influence on Public Education Policymaking?
Natalie Gomez-Velez (CUNY) examines "the phenomenon of philanthrocapitalism in current education reform, with a focus on the Common Core State Learning Standards initiative" in a forthcoming article in the Michigan State Law Review, posted on ssrn.com. From the abstract: Part I describes the role that a small group of philanthropists played in setting and catalyzing the Standards development and implementation. This description includes private philanthropists’ interactions with federal, state, and local government actors and other stakeholders. It also examines their work in the political process and the public discourse. Part II then considers the Common Core initiative over the last five years, including the role of philanthrocapitalists, nonprofits, and the state and federal governments, and the recent public backlash against and reconsiderations of the Standards. Part III considers the proper scope and limits of private philanthropists’ role in public education policymaking from the perspective of public law norms, governance, and policymaking. Drawing upon structural governance models designed to support robust public engagement in education policymaking, as well as those designed to prevent agency capture, the Article closes by considering methods for placing appropriate boundaries on the influence of philanthrocapitalists. At the same time, it acknowledges the difficulty of imposing meaningful limits in a political environment dominated by the influence of private wealth.