Friday, March 14, 2014
David Sciarra was at UNLV Law last week promoting the Education Law Center's 3rd bi-annual national school funding fairness report and highlighting Nevada's position at the "bottom of the barrel." This extended spot on the local NBC affiliate has David breaking down the premise of the report in laymen's terms and explaining why progressive funding is so important and legally mandated. The video feed is here. The funding conversation begins at 18:00 and runs for about 10 minutes.
The following is a cross-post, curtesy of Scott Bauries at edjurist.com. Thanks Scott.
Imagine that you are an educational leader hired to head up an important community college program for at-risk youth. In your first days on the job, you do what any good leader does and audit the books. Through this review, you discover that you have an employee who is drawing a large salary from the program, but is not doing much, if any, work. You do some further digging, and you realize that this "employee" with the "no-show" job is also a sitting state legislator. You care about your fiduciary duty over the public money you've been entrusted, so you confront the no-show employee and request that she begin showing up and working. She not only refuses, but also threatens your livelihood. You are not a coward, so you fire her. Not only that, but when subpoenaed, you testify truthfully against her in her criminal trial once the feds discover her fraud. Soon after, you are fired.
You file suit against your former employer to challenge your termination as retaliation for your speech as a citizen on a matter of public concern. But the District Court, and later the Circuit Court of Appeals, reject your challenge, citing the Suprme Court's recent decision in Garcetti v. Ceballos. In Garcetti, the Court held that, "when public employees speak pursuant to their official duties, they do not speak as citizens, and the First Amendment does not shield their communications from employer discipline." Essentially, speech that a public employee is hired to make is not that employee's own speech, but his work product, and may therefore be the basis of employer discipline. The Circuit Court cites Garcetti and reasons that, because you testified only about matters you learned about at work, your testimonial speech "owe[d] its existence" to your employment, and was therefore made "pursuant to [your] official duties." Notwithstanding the Garcetti rule, the Circuit Court proclaims that it is immaterial that your job does not require you to testify in judicial proceedings, as long as your testimony is about your job.
Should this judicial sleight-of-hand resulting in an unbelievably expansive reading of the Garcetti exemption be allowed to stand? In Lane v. Franks, the Court will consider the question on alleged facts similar to those in the vignette above. Along with Professors Paul Secunda and Sheldon Nahmod, and on behalf of more than 60 other law professors, I have written an amicus brief (free download) arguing for the reversal of the 11th Circuit's flawed reading of Garcetti. The case will be argued on April 28th, and it could have major implications for public employees--including educational employees--nationwide.
Thursday, March 13, 2014
Christine Kiracofe's latest article, Serial and Second Generation School Finance Litigation: 2000-13, 299 Ed. Law Rep. 1 (2014), accomplishes what I have tried to encourage law students to do in seminar and law review articles for the past decade: assess the impact of school finance decisions by comparing the evolution of the precedent and student outcomes in individual states. Prof. Kiracofe's article focuses on two categories of school finance litigation: a) what she calls "serial" litigation, meaning "petitioners repeatedly return to court over a significant period of time … litigation in some of these cases is seemingly endless, and may result in little change … and even then perhaps only in small increments;" and b) "second generation" litigation, which means "plaintiffs secured a victory at court only to have circumstances change over subsequent years that once again render a system of funding public schools unconstitutional."
She then looks at how these states have fared on the Education Law Center's school funding fairness reports. She finds that "[m]any of the states that have experienced second generation and/or serial litigation over the past ten years earn favorable marks on the Education Law Center's recent National Report Card study. While it is impossible to draw a direct correlation between state school finance litigation and funding system health using the National Report Card measure alone, this data is promising for funding change advocates who will undoubtedly be involved in the litigation process for a significant amount of time."
The article is interesting in its own right, but also provides a good starting point for students who may want to dig deeper in terms of their own state or region.
Wednesday, March 12, 2014
7th Circuit Rules that Hair Grooming Codes Applied Only to Male Student Athletes Violate Equal Protection Clause and Title IX
The Seventh Circuit reconsidered some of its earlier precedent last week and held that a school’s policy requiring male basketball players wear their hair cut above their ears violated the equal protection clause of the Fourteenth Amendment and Title IX of the Education Amendment Acts of 1972. The 3-1 panel decision in Hayden v. Greensburg Cmty. Sch. Corp., No. 13-1757 (7th Cir. Feb. 24, 2014), is one of the circuit’s few school cases addressing hair length in decades, prompting questions whether its older grooming code holdings survive Price Waterhouse.
In the case, the coaches of the male basketball and baseball teams at the public high schools in Greensburg, Indiana, required players to keep their hair cut short to promote “team unity” and a “clean-cut image.” One basketball player, A.H., wished to wear his hair longer, saying that he did not “feel like himself” with shorter hair. A.H.’s parents, the Haydens, sued on behalf of their son claiming that the school’s hair grooming code “intruded upon their son’s liberty interest in choosing his own hair length, and thus violates his right to substantive due process, and [ ]… because the policy applies only to boys and not girls wishing to play basketball, the policy constitutes sex discrimination.” The 7th Circuit found for the school district on the substantive due process claim. The court found that A.H.’s hair length was not a fundamentally protected right under Glucksberg, but instead a “harmless liberty,” where “the government need only demonstrate that the intrusion upon that liberty is rationally related to a legitimate government interest." The Haydens, the court concluded, failed to show that the hair-length policy failed rational-basis review. The circuit court reversed, however, the district court’s finding that the Haydens did not make out a prima facie case of discrimination. The hair length policy for the male basketball and baseball team members did not apply to male athletes in other sports and did not apply to female athletes at all, and the circuit court noted, “there is no facially apparent reason why that should be so. Girls playing interscholastic basketball have the same need as boys do to keep their hair out of their eyes, to subordinate individuality to team unity, and to project a positive image. ... Given the obvious disparity, the policy itself gives rise to an inference of discrimination.” Finding “no rational, let alone exceedingly persuasive, justification has been articulated for restricting the hair length of male athletes alone,” the court remanded the case to the lower court to determine appropriate relief on the Haydens’ equal protection and sex discrimination claims. Read Hayden v. Greensburg Cmty. Sch. Corp., No. 13-1757 (7th Cir. Feb. 24, 2014) here.
The dramatic rise in suspensions and expulsions over the past two decades is unlikely to be news to anyone reading this blog, but what may be interesting is the near complete disengagement of courts from reviewing school discipline, including the expulsion of otherwise innocent students and those who have engaged in trival behavior. My new article, The Constitutional Limit of Zero Tolerance in Schools, argues that basic principles of substantive due process, when taken seriously, limit the zero tolerance. The full article is available here. I would welcome thoughts and feedback from anyone cares to offer it.
I trust none of the law profs are ready to flee the academy for practice, but I am sure you have some great former students who might be interested in civil rights work at the Department of Education. Right now, the Office for Civil Rights has postings for 16 different jobs spread around the various field offices. The jobs require, at least, one year of post law school experience. The postings are here: https://www.usajobs.gov/GetJob/ViewDetails/363800600
Tuesday, March 11, 2014
The Kansas Supreme Court has ruled in favor of the plaintiffs in the state's long-running finance litigation, Gannon v. State. Last week, the Court upheld the lower court's ruling, writing:
As for the capital outlay funding claims, we hold the panel correctly ruled that the
State created unconstitutional, wealth-based disparities by withholding all capital outlay
state aid payments to which certain school districts were otherwise entitled under K.S.A.
2012 Supp. 72-8814(c). We additionally hold the panel correctly refused to order
payment of capital outlay state aid to which districts were otherwise entitled for fiscal
year 2010. We further hold that the panel correctly ruled that the State created
unconstitutional, wealth-based disparities by prorating the supplemental general state aid
payments to which certain districts were entitled under K.S.A. 2012 Supp. 72-6434 for
their local option budgets.
It did find, however, that the lower court had applied the wrong legal standard in determining whether the state was violating students' rights to an adequate education, and remanded on that point.
Overall, the case reads as a huge victory for the plaintiffs (see the Education Law Center's analysis), although the state is claiming some solace in the flexibility the opinion potentially affords it.
Paul Secunda's new article, Overcoming Deliberate Indifference: Reconsidering Effective Legal Protections for Bullied Special Education Students, is up on ssrn. The abstract offers this summary:
Ten years ago, in response to an epidemic of bullying and harassment of special education students in our nation’s schools, I put forward two new legal proposals based on legal protections that these students uniquely have under the Individual with Disabilities in Education (IDEA). Although these proposals have gained some traction in the ensuing time period, most courts continue to analyze these cases under the same series of largely ineffectual constitutional and statutory laws. What many of these laws have in common with my previous proposals is reliance on a deliberate indifference standard, which requires schools and responsible school officials to essentially ignore the bullying behavior before being held legally accountable for their actions. Not surprisingly, there has been a remarkable lack of case success in even the most severe instances of special education student bullying.
To provide meaningful legal protections for bullied special education children, this article seeks to overcome the deliberate indifference standard by relying on a combination of reasonable accommodation principles under federal disability law and legal protections that children with disabilities already have under IDEA. More specifically, this article argues for adoption of the gross mismanagement standard under Section 504 of the Rehabilitation Act and an expansion of existing state anti-bullying laws to provide special education children with various forms of private rights of action to combat the most severe forms of bullying. These new legal proposals will add to the arsenal that bullied special education children have at their disposal to fight back against both their tormentors and their institutional and individual enablers.
Download the full article here. I have blogged on deliberate indifference in sexual and racial harassment several times. I have to admit my ignore regarding the intracies in special education students, but Paul's article would seem to be an important contribution. Because schools owe special education students affirmative education rights (whereas they owe no affirmative rights based on race or sex), allowing them too much deference in terms of harassment strikes me as inconsistent with IDEA.
I have long argued that once federal student loan debtors began to have their loan balances forgiven through the various income-based repayment options the whole narrative about student loans would change. All of a sudden, student loan debtors would go from being hapless victims of an exploitive system to being crafty beneficiaries of an exploitable system. It has been my prediction that this shift in narrative would result in political backlash against the forgiveness provisions that would result in a tightening of eligibility requirements—or the doing away with the provisions altogether.
We have seen this type of overreaction before. Up until the 1970s, student loan debt was dischargeable in bankruptcy to the same extent as other forms of unsecured debt. But sensationalized stories about doctors and lawyers receiving discharges just before embarking on lucrative careers prompted Congress to impose increasingly onerous restrictions on the discharge of student loan debt. And while the perceived impossibility of student loan discharge is overblown, there are undoubtedly debtors facing genuine hardships who are not afforded the benefit of a fresh start through bankruptcy, all because a few debtors abused the system.
Unfortunately, the Obama Administration’s newly-released budget proposal appears intent on forestalling any media backlash about the forgiveness provisions. One specific proposal calls for capping the eligibility for Public Service Loan Forgiveness (PSLF) at the maximum aggregate loan limit for independent undergraduate students—currently $57,500. The effect of such a cap would be to essentially render graduate and professional school loans ineligible for forgiveness through the PSLF program.
As it currently works, PSLF allows debtors who qualify for hardship, or income-based, payments to seek forgiveness of their student loan debts after making 120 monthly payments while employed in an eligible public or non-profit sector job. The program was signed into law during the waning days of the George W. Bush presidency, as part of the College Cost Reduction Act. The twin purposes of PSLF were 1) to provide relief for debtors struggling to make student loan payments and 2) to incentivize employment in the public and non-profit sectors, especially among those who may have more lucrative options in the private sector.
There are no caps on the amount of debt that is eligible for forgiveness, a logical omission given the high cost of higher education. But if the proposed changes are adopted, any amount above $57,500 would be subject to a 25-year window (300 monthly payments, with any forgiven amounts counted as income for the tax year in which they are forgiven). This cap would render the program ineffective at serving either of its original purposes—especially for individuals with graduate and professional school debt.
But once again, there is a theme here. In 2011, the President signed a bill ending student loan interest subsidies for needy graduate and professional school students. The ostensible reason was to shore up the need-based Pell Grant program, which was under fire by Republicans. Unfortunately, this political compromise is costing the typical needy graduate or professional school student thousands of dollars in additional accrued interest—an absurd proposition when you consider that the federal government generated $66 billion in profit from student loan debtors between 2007 and 2012.
The stated justification for capping PSLF is to keep schools from increasing tuition. In other words, the Administration wants to punish students for the “sins” of their schools. It seems that Georgetown Law School’s manipulation of its tuition rate to take full advantage of the PSLF program means that every student who pursues an educational path that ends up costing more than $57,500 will have to suffer. This is a wrongheaded and patently unfair approach.
There are perverse political forces lurking beneath the surface as well. There has always been suspicion of the federal student aid program. So "reforms" typically work against students. Additionally, this Administration seems to believe that graduate and professional school students are undeserving of support and hardship relief. The reality, however, is very different.
Not every graduate and professional school student is a trust fund baby or destined for a lucrative career, especially not early on. Many of these students struggle with the same types of hardships facing the neediest undergraduate students—and when it comes to student debt, these students are carrying the heaviest burdens. In higher education, the vast majority of students must pay to play. Unfortunately, the game is expensive—often much more than $57,500. Moreover, when you consider that student loans are often the only means of financing education for individuals from poor backgrounds, the effect of this proposal would be most severe on those who already have the least.
It is irresponsible to try to control college costs on the backs of students, not to mention baffling that this Administration would open budget negotiations with such a willingness to sacrifice needy students. The budget proposal has been characterized as “dead on arrival” (largely because of its attempts to expand the social safety net in other areas); we should all hope that provisions such as the PSLF cap are not selectively resurrected.
Monday, March 10, 2014
The National Center on Education Statistics has released Condition of America's Public School Facilities: 2012-13. Based on survey responses the report found that
53 percent of public schools needed to spend money on repairs, renovations, and modernizations to put the school’s onsite buildings in good overall condition. The total amount needed was estimated to be approximately $197 billion, and the average dollar amount for schools needing to spend money was about $4.5 million per school. Among schools needing to spend, the cost estimate was based on the best professional judgment of the survey respondent in 57 percent of the schools; on facilities inspection(s)/assessment(s) performed within the last 3 years by licensed professionals in 44 percent of the schools; and on a capital improvement/facilities master plan, schedule, or budget in 42 percent of the schools.
Moreover, 5 to 17 percent of the schools "were rated as unsatisfactory or very unsatisfactory" in terms of environmental factors. As NPR put it, our school buildings are in no better shape than our bridges.
Friday, March 7, 2014
One of our recent posts noted the publication of R. George Wright's article, Post-Tinker, 10 Stan. J. Civ. Rts. & Civ. Liberties 1 (January 2014). Considering one of Professor Wright's points-- that we could dispense with Tinker in favor of allowing public schools' to control student speech based on (in part) their responsibility to teach civility and mutual forbearance-- a recent Ninth Circuit case might present a question of if wearing an American flag t-shirt is a breach of civility? In Dariano v. Morgan Hill Unified Sch. Dist., the Ninth Circuit upheld a school official's decision to require high school students wearing t-shirts bearing images of the American flag during a school-sanctioned celebration of Cinco de Mayo to turn the shirts inside out or go home after the school principal learned of threats of violence against the students. During a Northern California school's Cinco de Mayo day, several students wore American flag t-shirts to school, prompting comments from other students who viewed the students' shirts as a slight against Mexicans and Mexican-Americans. A year earlier, there had been threats and obscenities exchanged between a group of predominantly Caucasian students and a group of Latino students when the Caucasian students hung an American flag on a school tree and chanted “USA,” in response to a group of students who had been walking around with a Mexican flag. The day of the flag t-shirt incident a year later, an assistant principal was told that some students were expressing displeasure about the American flag t-shirts. The assistant principal met with the students wearing the U.S. flag shirts and asked them to turn the shirts inside out or remove them, explaining that he was concerned that they may be attacked by students who supported the Cinco de Mayo celebration. The students acknowledged that the shirts might start fights, but refused to take them off. They were sent home with excused absences and stayed home two additional days after receiving threatening text messages. (Two other students were allowed to return to class because the shirts because they were wearing "TapouT," shirts that had a muted version of the U.S. flag.) The students who were sent home sued, alleging that the school violated their rights to freedom of expression, equal protection, and due process. In upholding the district court's grant of summary judgment for the assistant principal, the Ninth Circuit found that given the history of violence at the school, the school officials stopping the display of the t-shirts was a "tailored response" to "anticipated violence or substantial disruption of or material interference with school activities," and therefore the school's response was justified under Tinker. The Ninth Circuit found that the school's response was appropriately tailored under Tinker because while it suppressed the message on the clothing, they students were not punished for it and also allowed students wearing clothing with a less prominent message to wear their shirts. Read Dariano v. Morgan Hill Unified Sch. Dist. here.
The Office for Civil Rights has completed its compliance review of Indianapolis Public Schools and found a violation of Title IX in regard to its athletics program. OCR's resolution letter to the District is a model in terms of applying the three prong standard. A district is in compliance if it can show a) proportional participation in sports, b) a continuing history of program expansion, or c) that current offerings meet student interest and ability. The letter sets out and applies each very clearly and could easily be used to teach the subject matter in class.
On the first prong, OCR found that one of the district's high schools was in compliance, but the rest were not. Girls are 50.5% of the overall student population, but only 35.5% of the student athletes. To the district's defense, it is rare that an institution meets the first prong, and that one of the district's high schools did is noteworthy.
On the second prong, the district's athletic programs had been stagnant for some time and, thus, there was no history of efforts to expand offerings in ways that might have improved the disparity.
On the third prong, "OCR considers whether there is (a) unmet interest in a particular sport; (b) sufficient ability to sustain a team in the sport; and (c) a reasonable expectation of competition for the team in the school’s normal competitive region. If all three conditions are present, then OCR will find that the school has not fully and effectively accommodated the interests and abilities of the underrepresented sex." The district, however, had made no attempt to assess student interest and, thus, could not avail itself of this prong either. In short, the second and third prongs provide schools with a "safe harbor" for disparities, but they have to do something to take advantage of this safe harbor. Indianapolis had done nothing.
Beyond the raw number of opportunities offered, OCR also found evidence of qualitative inequalities, with the district affording different resources and support to those female programs that were available. In particular, it found inequalities in equipment and supplies and the scheduling of games and practices.
As a result, the district entered into a resolution agreement with OCR that provides:
- the District will provide participation opportunities for girls and boys . . . that effectively accommodate the athletic interests and abilities of both sexes. . . . In particular, the District will conduct a comprehensive assessment during the 2013-2014 school year to determine whether female students (who are the underrepresented sex in the District’s athletics program) have unmet athletic interests and abilities. . . . If through the assessment, the District identifies a sport or sports in which there is sufficient but unmet interest and (if applicable) ability of female students to participate at the interscholastic level at a particular high school, the District will add athletics opportunities (including new sports or new levels of existing sports by the next competitive season) at the high school(s) until such time as either (1) the high school is fully and effectively accommodating the expressed interests and abilities of female students (i.e., there remains no unmet interest and ability); or (2) the participation rate for female students in the high school’s interscholastic athletics program is substantially proportionate to their rate of enrollment at the high school. . . .
- In addition, during the 2013-2014 school year, the District will develop a plan to ensure that it provides equal athletic opportunities . . . for members of both sexes in the provision of locker rooms, practice and competitive facilities . . .
- Finally, the District will create during the 2013-2014 school year a comprehensive policy, subject to OCR’s review and approval prior to implementation, to regulate booster club funding and any other private donations flowing into the athletic programs at each high school to ensure that if booster clubs or other outside sources provide funding that results in disparities in benefits and services favoring athletes of one sex over the other sex, then the District will take action at the high school to ensure that the benefits and services are equivalent for both sexes.
Thursday, March 6, 2014
In 1998, California passed a ballot measure to ban bilingual education in public schools. Similar initiatives followed in Colorado, Arizona, and Massachusetts, passing in the latter two states. The ban in California led to litigation in Valeria v. Davis, 307 F.3d 103 (9th Cir. 2002), in which plaintiffs alleged the ban was motivated by discriminatory intent. The Ninth Circuit disagreed, finding the state had a legitimate non-discriminatory explanation: its educational judgment that English immersion is the better pedagogy.
A decade and a half after banning bilingual education, the state may be poised to reverse course. State senator Sen. Ricardo Lara has introduced a bill to repeal the ban on bilingual education. He intends to put the issue before voters on the 2016 ballot. Some believe that the politics have sufficiently changed in the state and the bill may pass. Researchers also point out that bilingual education is not just a cultural or individual interest issue. Rather, bilingualism is a valuable economic resource that the state needs to be able to tap. While the economy has become global over the past 15 years, California's education system has effectively demanded that it remain local. For more on the bill and research, see here and here.
Wednesday, March 5, 2014
Obama's 2015 Equity Initiative: Quality Teachers, Funding Fairness, School Climate, and Concentrated Poverty
Notwithstanding all the claims that the President's budget is dead on arrival, his new budget is important in the policies and values it is putting forward, particularly since this President has shown his ability to push his policies administratively, even when Congress does not act. The 2015 budget includes "a new initiative called Race to the Top-Equity and Opportunity (RTT-Opportunity), which would create incentives for states and school districts to drive comprehensive change in how states and districts identify and close opportunity and achievement gaps." The initiative focuses on the equitable distribution of school funding, hiring quality teachers, and improving school climate. Tagged on at the end is a new message from the President: "identify and carry out strategies that help break up and mitigate the effects of concentrated poverty." It is unclear whether the President intends to promote integration strategies, try to make separate equal, or both. The President's own description of his plan states:
Grantees would enhance their data systems to place a sharp focus on the districts, schools, and student groups with the greatest disparities in opportunity and performance, while also being able to identify the most effective interventions. They would develop thoughtful, comprehensive strategies for addressing these gaps, and use the data to continuously evaluate progress. Grantees would invest in strong teaching and school leadership, using funds to develop, attract, and retain more effective teachers and leaders in high-need schools, through strategies such as individualized professional learning and career ladder opportunities.
States would collect data on school-level expenditures, make that data transparent and easily accessible, and use it to improve the effectiveness of resources and support continuous program improvement. Participating districts would be required to ensure that their state and local funds are distributed fairly by implementing a more meaningful comparability standard based on this school-level expenditure data.
RTT-Opportunity funds also would be used, for example, to provide rigorous coursework; improve school climate and safety; strengthen students’ non-cognitive skills; develop and implement fair and appropriate school discipline policies; expand learning time, provide mental, physical, and social emotional supports; expand college and career counseling; and identify and carry out strategies that help break up and mitigate the effects of concentrated poverty.
The resegregation of public schools over the past two and a half decades is not news to most of the readers of this blog. Numerous reports demonstrate that our public schools are now as racially and socioeconomically segregated as they were when mandatory desegregation began in earnest in the early 1970s. What may be news is the new trend of "school district secession." Historically, many of the most effective school desegregation plans covered large school districts in metropolitan areas. Now that those districts have been released from court ordered desegregation, smaller wealthier neighborhoods are attempting to secede from their districts to form their own independent and isolated schools. Businesweek reports:
In Alabama, which makes it relatively easy to create districts, two Birmingham suburbs have left the countywide system in the past two years. After the majority-black Memphis schools merged last year with the majority-white county district, Tennessee's Republican-dominated legislature lifted a decades-old ban on creating new systems, and six suburbs seceded, approving sales tax increases to pay for their schools. Parent groups in Atlanta and Dallas are considering similar proposals.
A similar move is being pushed in Baton Rouge, Louisiana, where a parent leader of secession comments that "We are tired of basically being a cash cow for the rest of the parish." If secession occurs, per pupil spending in the Baton Rouge district would drop from $9,635 to $8,870. The new affluent district would have per pupil expenditures of $11,686. In other words, secession would create a $2,000 per pupil gap overnight. In an average elementary school, this would be the difference of nearly a $1,000,000 a year.
This trend raises important causal questions. Are these secession movements the lingering effects of school systems that never became substantively unitary? Are they the result of the "invidious value" that Kevin Brown argues segregation fostered and integration never cured? (See Has the Supreme Court Allowed the Cure for De Jure Segregation to Replicate the Disease?, 78 Cornell L. Rev. 1 (1992)). Or are they the result of bringing market ideas to public schools and fomenting the idea that education, rather than a public good, is consumer resource? I would suspect the trend stems from all three. In so far as it is connected to the third, it also demonstrates my point in Charters Schools, Voucher, and the Public Good, where I argue that charters and vouchers are not inherently good or bad. Rather, they are the policies through which good or bad values can flow (most often bad at the moment). But laws permitting school district secession allow these same bad values to flow through traditional public schools.
For Jan Resseger's analysis of the trend, see here.
Tuesday, March 4, 2014
In the Spring of 2011, Capital High School in Santa Fe, New Mexico, subjected students entering the high school prom to random, suspicionless pat-downs. The goal of the searches were to prevent students from bringing drugs, alcohol, or other contraband to the prom. One of the students testified that:
[The ASI New Mexico security guard] had me spread my arms and legs out, and she patted along my arms, touched along the waist. And then she grabbed the outer part of my bra and moved it here. And then she grabbed the inner part of my bra and moved it here. And then she cupped my breasts and shook them.... [T]hen afterwards she moved down to my waist and then she went all the way down my leg. And then she felt over my dress and then she pulled the dress up to about mid-thigh and she felt up the bare leg, as well.
Other students testified similarly. Four students brought suit against the school district and the principal. In its latest opinion, the district court in Herrera v. Santa Fe Public Schools, 956 F.Supp.2d 1191 (D. New Mexico 2013), held that search violated students' rights, but the principal was entitled to qualified immunity.
The school had attempted to extend the rationale of Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), and Board of Education of Independent School District No. 92 v. Earls, 536 U.S. 822 (2002)-which upheld suspicionless drug testing of students participating in sports and extracurriculars--to these pat-down searches. The district court reasoned that those cases were inapposite because they involved a special needs exception to the general reasonable suspicion requirement in schools. Moreover, the searches in those cases applied to a subsection of the student body, whereas the prom search potentially applied to any student in the school. Applying the reasonable suspicion test from New Jersey v. TLO, the court easily found it lacking and the searches unconstitutional. In an earlier opinion, the court had also catalogued other lower courts applying similar rationales to suspicionless searches. See Herrera v. Santa Fe Public Schools, 792 F.Supp.2d 1174 (D.N.M. 2011). This earlier opinion was particularly revealing in showing that several recent courts have pushed back against random student searches.
The school district had also argued that the students consented to the searches, but the court applied the unconstitutional conditions doctrine to find that consent was invalid.
Immigrant Children File DOJ Complaint Challenging Barriers to Enrollment in Two N.C. School Districts
A civil rights complaint was filed with the Justice Department last month alleging that two North Carolina school districts are discouraging immigrants from enrolling in public school. Cribbing from the complaint, plaintiff “C.V.,” a 17-year-old Honduran immigrant, attempted to enroll in high school in Buncombe County, N.C. But school officials twice application telling her that she was too old, even though North Carolina law says all students under 21 are entitled to a public education in the school district in which they live. Plaintiff “F.C.,” a 17-year-old native of Guatemala tried to enroll in high school in Marshville, N.C. last year, but was told that he was too old and was referred to a GED program at a local community college. The community college told F.C. he was too young and suggested that he try enrolling in high school again. At the high school, F.C. was told that he could not enroll until after he took an ESL exam even though his English-speaking skills were limited at the time. Unable to pass the ESL exam in Marshville, F.C. eventually enrolled in the Union County school district. The Southern Poverty Law Center, which is co-counsel for the plaintiffs, says that the two incidents are symptomatic of a larger problem in school districts across the state. Immigrant children – who arrive in the United States without a parent or legal guardian and are placed in the care of a sponsor, such as a family member – are being discouraged from enrolling in public school because of limited English proficiency, age or national origin. The plaintiffs are asking the Justice Department to require the districts to adopt a nondiscrimination policy and to provide training to ensure that the civil rights laws and the constitutional protections in Plyler v. Doe are being followed. Read the complaint, filed jointly by the Southern Poverty Law Center, Legal Services of Southern Piedmont, the North Carolina Justice Center, and the Southern Coalition for Social Justice, here.
Monday, March 3, 2014
Office for Civil Rights Reaches Voluntary Resolution of Kentucky School District’s Discipline Disparities
The Office for Civil Rights, Department of Education, had been investigating Christian County Public Schools' discipline system. It found basic due process flaws on the front end and significant racial disparities on the back end. "[B]lack students were consistently more likely than white students to be assigned in-school suspension and out-of-school suspension when their first disciplinary referral was for violations that were subjective in nature, such as Deliberate Classroom Disruption, Disorderly Conduct, Failure to Follow Directives, and Profanity/Vulgarity. For example, in school year 2010-2011, black students were nearly 3.5 times more likely than white students to receive out-of-school suspension for Profanity/Vulgarity."
Under the final resolution agreement reached last week, the District agreed to:
- Ensure to the maximum extent possible that misbehavior is addressed in a manner that does not require removal from school;
- Collaborate with experts on research-based strategies designed to prevent discrimination in the implementation of school discipline;
- Provide students who engage in disruptive behaviors with support services designed to decrease behavioral difficulties;
- Review and revise the disciplinary policies, and implement disciplinary practices that will effectively promote the fair and equitable administration of discipline;
- Provide training for staff and administrators on the disciplinary policies, and implement programs for students and parents and guardians that will explain the district’s disciplinary policies and behavioral expectations;
- Effectively address school climate issues;
- Improve the disciplinary data collection system in order to evaluate discipline policies and practices.
The full press release and resolution agreement is here. I believe this is the first discipline resolution reached since the Department's new discipline guidelines. Those guidelines seem to be reflected in this resolution, particularly the agreement to use less harsh and discriminatory alternatives to the current discipline policy.
Thursday, February 27, 2014
I have to admit to not keeping up with research on class size in recent years. A decade ago or so, I was under the impression that social science had reached a consensus that teacher quality mattered more than class size and that, with a high quality teacher, class size did not matter much at all. The only caveat, I thought, was that at-risk students did see some benefit from class-size reduction, even if others did not. Leonie Haimson, Class Size Matters' Executive Director, offers a strong retort. Below is a summary of her rebuttal of the 7 myths about class size reduction.
1. Myth: Class size is an unproven or ineffective reform.
She points to the conclusion of the Institute of Education Sciences at the United States Department of Education that
class size reduction is one of only four, evidence-based reforms that have been proven to increase student achievement through rigorous, randomized experiments -- the "gold standard" of research. (The other three reforms are one-on-one tutoring by qualified tutors for at-risk readers in grades first through third; life-skills training for junior high students, and instruction for early readers in phonics -- and not one of the policies that the corporate reformers are pushing. )
2. Myth: There is a threshold that has to be reached before class size reduction provides benefits.
The most comprehensive study of classroom size was in Tennessee. A recent reanalysis of the data in that study found that
for the control group of students who were in the "larger" classes and found that within this range, the smaller the class, the better the outcome.
Indeed, esteemed researchers such as Peter Blatchford have found that there is no particular threshold that must be reached before students receive benefits from smaller classes, and any reduction in class size increases the probability that they will be on-task and positively engaged in learning.
3. Myth: Large scale programs such as class size reduction in California didn't work.
She indicates that control groups in California were hard to find because the entire state reduced class size, but every controlled study of California did find significant gains for students in smaller classes.
Wednesday, February 26, 2014
The district court has issued a new opinion in Lewis v. Ascension Parish Sch. Bd., 2014 WL 556677 (M.D. La. 2014), a case involving allegations that the district discriminated in the rezoning of its schools. Like Spurlock v. Fox, 716 F.3d 383 (6th Cir.2013) and Doe v. Lower Merion Sch. Dist., 665 F.3d 524 (3d Cir.2011), the court in Lewis had to navigate the complex post-Parents Involved in Community Schools v. Seattle world, in which racial intent, racial classifications, and racial considerations all of different doctrinal relevance and potentially conflicted precedents.
The district court in Lewis had previously issued a summary decision granting the school district's motion for summary judgement, which was summarily overturned by the Fifth Circuit and remanded. The Fifth Circuit had intimated that the Third Circuit's holding in Lower Merion--that Justice Kennedy's opinion in Parents Involved was controlling and that assignment plans are subject to rational basis so long as they do not rely on individual racial classifications--was incorrect. The Fifth Circuit, however, indicated it need not reach those doctrinal question because certain factual issues needed to be addressed first.
In its new decision on remand, the district court offers what may be the most cogent post-Parents Involved analysis to date. Plaintiff's basic claim is that the district's new assignment plan segregates African Americans and provides them with unequal educational opportunities. The district court analyzes his claim based on three distinct doctrines. First, it asks whether a racial classification was employed in the assignment plan. If so, Parents Involved's strict scrutiny applies. Here, the court indicates there is no evidence of a racial classification. Awareness or consideration of race, alone, are insufficient to trigger strict scrutiny. Thus, the rational basis approach of Lower Merion would apply. On the one hand, this holding is another validation of districts' ability to voluntarily desegregate. On the other hand, the plaintiffs in Lewis were alleging segregation and, thus, this court makes clear that those claims still must meet the higher burden of Village of Arlington Heights v. Metro.
Second, the court analyzes the disparate impact of the plan and the extent to which it potentially gives rise to a claim of intentional discrimination per Arlington Heights. It finds that the assignment plan does.
Third, the court analyzes the school district's consideration of racial demographics, etc., in drawing the assignment zones. The court finds that these considerations, along with the impacts, create a triable issue of fact as to whether intent existed. The Court elaborated:
Here, the School Board also does not contest that the majority of the non-white students in the District are in the East Ascension High School feeder zone and that the majority of the white students in the District are in the Dutchtown High School and St. Amant High School feeder zones. With regard to the factors considered by the School Board when it adopted Option 2f, the School Board does not contest that its members considered race and socioeconomic status when they developed, evaluated, and adopted Option 2f. Unlike the students in Lower Merion, non-white and white students in the District have each been affected by Option 2f (i.e. assigned to different schools). Indeed, the School Board does not contest this fact. Further, the School Board does not contest that Option 2f assigns all students to schools based on their geographic location.
Unlike the court in Lower Merion, this Court is unable to consider all of the evidence presented until after a full trial on the merits. See Lower Merion, 665 F.3d at 542. However, given the evidence presented here, context of this matter, and factors considered by the School Board when it adopted Option 2f, the Court concludes that Varando and Child B are, in fact, similarly situated to white students in the Dutchtown High School and St. Amant High School feeder zones. Accordingly, the School Board's request that the Court dismiss Lewis' remaining Equal Protection claim on this basis is DENIED.
In short, the district court agreed with Lower Merion (and rejected plaintiffs argument for applying strict scrutiny), but found there are sufficient facts on which discriminatory purpose could be inferred (which would trigger strict scrutiny) and set the case for trial.