Wednesday, July 15, 2015
The U.S. District Court for the District of Columbia again found last week that the D.C. school district failed to comply with their “Child Find” duty to locate disabled students in the birth-to-five population, as required by the Individuals with Disabilities Education Act. The court found in 2010 that the D.C. district neglected its duties for years to identify, evaluate, determine eligibility, and ensure a smooth transition for services for preschool disabled children covered by the IDEA and the Rehabilitation Act. Following Wal-Mart v. Dukes in 2011, the D.C. Circuit Court vacated the original plaintiff class certification of disabled children and remanded for the district court to determine whether the plaintiffs' claims had sufficient commonality to represent a class. On remand, the district court certified four subclasses. In last week's decision, the district court found no genuine dispute that the "District's attempts to identify, evaluate, determine eligibility of, and transition disabled children were inadequate through and including 2007, [which is] sufficient to establish the District's liability under the IDEA on each subclass's claim." The District had been cited by the Office for Special Education Programs (OSEP) in 2001 for failing to conduct timely evaluations under its program compliance agreement. The case is DL v. D.C., No. CV 05-1437, 2015 WL 3630688 (D.D.C. June 10, 2015).
Chicago Public Schools Enter Agreement with Office for Civil Rights to Ensure Equal Athletic Opportunities for Females
Last week the U.S. Department of Education announced that a settlement had been reached between its Office for Civil Rights and the Chicago Public School District #299 after the National Women’s Law Center filed their initial complaint back in 2010. The agreement mandates that the Chicago school system add athletic opportunities for females in at least 12 high schools in order to comply with Title IX (the anti gender discrimination law in education). The purpose of the agreement is to remedy the stark disparities between enrollment of female students and their participation in high school interscholastic athletics. In Chicago schools, females make up over 51 percent of the student population yet they only represent 41 percent of the districts’ athletes. Males are 58 percent of the athletes. The eleven page detailed settlement requires that the Chicago Public School District comply with the agreement at each District high school and sets up a standard the schools must meet.
Compliance at each high school will be measured by using the three-part test of compliance showing at each school that: 1) interscholastic participation opportunities are provided in numbers substantially proportionate to the respective enrollments of boys and girls; or 2) that the District can show a history and continuing practice of program expansion that is demonstrably responsive to the developing interests and abilities of the members of that sex; or 3) that the interests and abilities of the underrepresented sex are fully and effectively accommodated by the present program.
The agreement will go into effect as early as fall 2015 and the Office for Civil Rights will continue to monitor the District’s compliance closely thereafter.
A little over a month ago, Sen. Tim Scott (R-S.C.), a member of the education subcommittee, had foregone his voucher amendment at the committee level so that the bill could move to the full Senate with a unanimous vote. He revived that amendment before the full Senate. The measure would have allowed low income students to opt out of public school and use $2100 in Title I dollars to pay for tuition at a private school. The amendment was defeated on a 45-to-51 vote yesterday. Democrats were unified in their opposition and a few Republicans joined them, including Senators from Missouri, Kansas, and Alaska. Senate rules required 60 votes for the amendment to pass.
Still up this week are amendments to the funding formula (discussed here yesterday) and an anti-discrimination measure to protect against harassment based on sexual orientation.
Tuesday, July 14, 2015
This blog's title is the bottom line takeaway from Dan Goldhaber, Lesley Lavery, and Roddy Theobald's new study Uneven Playing Field? Assessing the Teacher Quality Gap Between Advantaged and Disadvantaged Students. The abstract explains:
Policymakers aiming to close the well-documented achievement gap between advantaged and disadvantaged students have increasingly turned their attention to issues of teacher quality. A number of studies have demonstrated that teachers are inequitably distributed across student subgroups by input measures, like experience and qualifications, as well as output measures, like value-added estimates of teacher performance, but these tend to focus on either individual measures of teacher quality or particular school districts. In this study, we present a comprehensive, descriptive analysis of the inequitable distribution of both input and output measures of teacher quality across various indicators of student disadvantage across all school districts in Washington State. We demonstrate that in elementary school, middle school, and high school classrooms, virtually every measure of teacher quality we examine—experience, licensure exam scores, and value added—is inequitably distributed across every indicator of student disadvantage—free/reduced-price lunch status, underrepresented minority, and low prior academic performance. Finally, we decompose these inequities to the district, school, and classroom levels and find that patterns in teacher sorting at all three levels contribute to the overall teacher quality gaps.
Last week, I closed with a post noting how close we are to the finish line of reauthorizing the Elementary and Secondary Education Act (ESEA), but reserved any substantive commentary on the potential legislation. It is hard to speculate on what a final bill passed by both Houses will look like. But right now, the House and Senate bills are substantially different. This weekend at a conference, I asked Congressman Bobby Scott what we might expect out of the reconciliation process between the House and Senate. He said that the President has made it clear that no bill is better than a bad bill, which Scott believes will offer Democrats more leverage during the reconciliation process.
From the President's perspective, no bill may even be better than a decent bill because his Secretary of Education has, in effect, already rewritten the ESEA. In 2012, he began waiving states' requirements under the existing version of the ESEA and replacing those requirements with a new set of policies. He did this through a conditional waiver process, which 45 states are currently operating under. In other words, there is the existing ESEA as written into law and the de facto ESEA as imposed through the administrative process. Those two things are entirely different in substance. Any legislative amendment to the written ESEA will also wipe out the de facto administrative ESEA. Knowing that there is policy upside to leaving the existing ESEA in place for the President means there may be even more leverage than Congressman Scott suggested.
The waiver issue also takes us to the substance of current bills in the House and Senate. The Senate Bill, in particular, is dead set on limiting the Secretary's waiver authority. Secretary Duncan was able to impose conditions on waivers because the statutory language on waivers was so sparse in the current statute. It simply said that states can apply for waivers and the Secretary can grant them so long as the waiver applications set goals that will improve education. As I demonstrate here in Federalizing Education by Waiver?, the Secretary exceeded his statutory authority in conditioning those waivers and probably violated the constitutional as well. This point is now the subject of litigation in the federal district court in Louisiana.
The solution in the current Senate bill is to take the opposite approach to waiver power. Rather than a general waiver power, the current bill has various small waiver powers. Some sections of the bill do not include a power to waive the relevant provisions. In other words, the provisions cannot be waived. Other areas of the bill do have waiver provisions, but they only apply to that section and have their own particular standards. Also, while there is no general waiver authority, there is a general waiver restriction that prohibits the Secretary from imposing things such as the Common Core and its associated tests. Whether shrinking the Secretary's power is a good thing is not clear yet. My analysis in Federalizing Education By Waiver? was not a judgment as the substantive merit of the policies embodied in the Secretary's waiver conditions, but simply an analysis of whether he had such authority and whether granting wide waiver authority is permissible or wise.
Without attempting to identify the optimum level of waiver power the Secretary should have, the current reaction in the Senate bill is probably an over-reaction. The Secretary should not have the authority to effectively rewrite the ESEA. Even if granted to the Secretary, such a power would most likely be an unconstitutional delegation of authority. But it also a mistake to tie the Secretary's hands at all turns. The entire point of a waiver power is to deal with unexpected events, including catastrophes and innovations. The current Senate bill may not allow the next Secretary to sufficiently deal with either.
The most significant potential alteration to ESEA, however, may be the funding formula. As I demonstrate here, the funding formulas in ESEA are entirely irrational. The formulas allocate funds to states and districts based on factors that do not reflect student need, local costs, and equitable funding goals. As many others have remarked, the primary effect--if there is one--of the formulas is to reward rich states for being rich and punish the poor for being poor. This is not Congress's intent. It is just how things have shaken out.
The problem is that any changes to the formulas, even if they make perfect sense, will produce winners and losers. Losers do not care about what makes sense. Illinois would be one of the losers. Senator Durbin has said he will vote against changes that produces cuts for Illinois, not because those cuts are irrational, but because he is against hurting his school districts. Such a change is not yet in the current bill. But Senator Burr from North Carolina is introducing such an amendment and is getting a lot of attention. The only way around the problem of winners and losers is to increase the federal financial stake in education so that we could rework the formula without reducing any state's raw dollar allocation. No one is seriously discussing that.
Monday, July 13, 2015
Two years ago, Anna Aizer and Joseph J. Doyle published a study finding that juvenile incarceration does not have the deterrent effect that the system supposedly intendeds. The abstract explains:
Over 130,000 juveniles are detained in the US each year with 70,000 in detention on any given day, yet little is known whether such a penalty deters future crime or interrupts social and human capital formation in a way that increases the likelihood of later criminal behavior. This paper uses the incarceration tendency of randomly-assigned judges as an instrumental variable to estimate causal effects of juvenile incarceration on high school completion and adult recidivism. Estimates based on over 35,000 juvenile offenders over a ten-year period from a large urban county in the US suggest that juvenile incarceration results in large decreases in the likelihood of high school completion and large increases in the likelihood of adult incarceration. These results are in stark contrast to the small effects typically found for adult incarceration, but consistent with larger impacts of policies aimed at adolescents.
They have now published a second even more nuanced study.
Friday, July 10, 2015
With Watered Down Analysis, Eleventh Circuit Holds Florida Can Evaluate Teachers Based on Their Students' Scores In Someone Else's Course
Thursday, July 9, 2015
This release comes from the Campaign for Educational Equity at Teachers College, Columbia University:
In 2014, New Yorkers for Students' Educational Rights (NYSER) filed a lawsuit on the behalf of New York State's public school students charging that the state is neglecting its constitutional duty to ensure that every student receives a "sound basic education." In NYSER v. State of New York, plaintiffs argue the state has failed to implement the school-funding reforms that it committed to adopt in response to the Campaign for Fiscal Equity (CFE) court decisions.
To move the case ahead more quickly, earlier last week, NYSER plaintiffs filed a "motion for summary judgment" that asks State Supreme Court Justice Manuel J. Mendez to bypass a lengthy trial and declare, based on the state's indisputable actions and inactions in recent years, that the state has violated the Court of Appeals' CFE orders and has failed to achieve constitutional compliance.
Late yesterday, the U.S. House of Representative passed a Bill to reauthorize the Elementary and Secondary Education Act. This reauthorization has been a long, wild, and bumpy ride. The Act should have been reauthorized seven years ago. Prior to the financial collapse and changes in Congress, many expected it would. After those events, the odds just grew longer and longer. In 2010, the administration made proposals for reauthorization and the Senate and House moved forward on some bills in 2011, but it was clear that an impasse existed and nothing would happen. Reauthorization was simply dead on arrival. The Secretary of Education used administrative action to deal with the mess that widespread violations of the existing Act was creating. At that point, no one even mentioned the word reauthorization and insiders thought it might be the next administration before anything happened.
Then early this year, the unthinkable happened: bipartisanship. Senators Alexander and Murray decided something must be done and went into closed door sessions to develop a plan. The result was a Bill that sailed through committee with a unanimous vote and is now before the full Senate. That prompted the second unthinkable to happen: the House got serious. The House revived its old bill, which the President had promised to veto, and made a few changes that moved it a little further away from extreme positions. It passed by the slimmest of margins: 218-213. Twenty-seven Republicans voted against it and no Democrats for it.
Wednesday, July 8, 2015
Nikole Hannah-Jones at ProPublica published her take on the cert grant in Fisher v. Univ. of Texas at Austin recently in A Colorblind Constitution: What Abigail Fisher's Affirmative Action Case Is Really About, reminding us of a few facts that ought to influence the Supreme Court's next Fisher decision:
1) because UT Austin's policy of admitting the top ten percent of Texas' high school graduates claimed 92% of in-state freshman seats, Fisher faced stiff competition for admission with all other in-state applicants for the remaining eight percent;
2) while some students with lower test scores and grades than Fisher were provisionally admitted, only five of those students were black or Latino; 42 were white;
3) Fisher's lawyers concede, as they must, that Fisher's race was likely not a significant factor in UT denying her admission.
Instead, Hannah-Jones writes, what Fisher's lawyers want is a referendum on whether the equal protection clause "also prohibits the use of race to help them overcome the nation's legacy of racism." Read more at ProPublica here.
The final education budget adopted, in June 2015, by the Nevada Legislature for the 2015-2017 biennium does little to improve school funding overall and reduces most districts' general operating budgets for the 2015-2016 school year, an analysis by Educate Nevada Now! (ENN!) shows.
Under the "Nevada Plan," which is the state's 1967 school funding formula still in effect, the general operating budget represents the amount of state and local funding available to each district to support the basic education program for all students. A key component of the general operating budget is the amount of state aid and local revenue allocated by the Legislature to each district, known as the Basic Support Guarantee (BSG). The BSG accounts for 75-80% of districts' operating budgets.
An analysis of the budget adopted by the Legislature in June shows a significant decrease in per pupil BSG in the largest district in the state, the Clark County School District (CCSD), which serves about 322,000 children, over 70% of the state's entire student population. CCSD expects to receive $5,512 per pupil, $15 less than the 2014-2015 school year. In Washoe County, the state's second largest school district, funding remains nearly flat. And, some rural districts are also bracing for less per pupil funding in the coming school year.
OCR's Dismissal of Asian Americans' Claim of Discrimination Against Harvard Is Much Ado About Nothing
Yesterday, a number of major new outlets, from the Wall Street Journal and the AP to the Bloomberg and US News & World Report, published stories on the fact that the Office for Civil Rights dismissed the complaint that Asian Americans recently filed against Harvard. The complaint alleged that Harvard systematically discriminates against them in the admissions process. The substance of the complaint and the prestige of the university against which it was filed are both significant. See my prior post on the complaint. That OCR dismissed the complaint, however, is not.
After filing the complaint, the plaintiffs had also filed a lawsuit in federal court. The federal court's jurisdiction exceeds and can preempt that of OCR's. Thus, even if OCR had left the complaint open, the final word would have belonged to the federal court. That OCR, which has a rapidly growing case load, would choose to avoid devoting resources to this complex case makes perfect sense. This not a substantive judgement on the merits of the complaint, as some headlines would leave readers to believe, but just good stewardship of federal dollars. Moreover, if there are issues the federal court does not address, the plaintiffs will be free to revive their complaint with OCR.
Monday, July 6, 2015
An article in the Atlantic, drawing on the research of Pamela Cantor, says we can. Cantor frames the problem as one of childhood trauma. She finds that poverty has effects on brain and other development that mirrors that of other types of childhood trauma.
[Poor children] had all experienced loss, violence, neglect, or other adversity. And no matter what traumatic events they had experienced, the results were similar: they showed up distrustful, easily triggered and distractible. I couldn’t make the adversity they faced go away. But I could and did change how they surmounted that adversity.
What I saw in Washington Heights students were the same manifestations of trauma I had seen in my patients. I saw how adversity gets under the skin, into the brains and bodies of children through the mechanisms of stress. And I saw that when lots of kids experience high levels of stress together, it produces a very specific collection of challenges to a school, to a classroom, and to the students themselves.
The solution she says is to develop interventions aimed at the trauma of poverty, rather than chasing the illusive solution to poverty itself. In a separate paper, she proposes
Friday, July 3, 2015
On Tuesday, California Governor Jerry Brown signed legislation eliminating personal and religious belief exemptions from public school vaccinations. The new law makes California's vaccination law one of the most stringent laws in the country. The new law, taking effect January 1, 2016, mandates all children provide proof of vaccination for communicable diseases in order to attend school in California. The only exemptions are for medical reasons and must be approved by the State Department of Health.
California is only the third state to eliminate religious and personal belief exemptions for vaccinations. The legislation comes in the aftermath of a measles outbreak linked to Disneyland in California earlier this year. Supporters of the new law advocate that it will protect those children too young or sick to be vaccinated, while opponents of the law say it unfairly restricts parental choice.
Thursday, July 2, 2015
The Supreme Court granted certiorari Monday to hear Friedrichs v. California Teachers Association, the case about compulsory teachers' union dues that some observers say will threaten union financing. Friedrichs challenges California's “agency shop” laws, which require public employees to pay union dues as a condition of employment, Friedrichs argues that state's agency shop laws violate the First Amendment particularly when the union's positions conflict with individual teachers' on-the-job interests or personal beliefs. Friedrichs' certiorari petition presents two issues:
(1) whether Abood v. Detroit Board of Education (1977) should be overruled and public-sector “agency shop” arrangements (that require teachers to join the union or pay the equivalent of union dues) should be invalidated under the First Amendment; and
(2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
In Abood, the Supreme Court held that nonunion public sectors employees could not be required to fund political or social activities to which they objected, but employees could be required to fund activities that benefitted all employees related to “collective bargaining, contract administration, and grievance adjustment purposes.” Because Abood controlled the outcome of Friedrich's claims, the Ninth Circuit summarily affirmed the district court's ruling against Friedrich.
Wednesday, July 1, 2015
On Monday, the Supreme Court of Colorado in Taxpayers for Public Education v. Douglas County School District struck down a voucher program in Douglas County, finding that the Choice Scholarship Pilot Program violated separation of church and state doctrine under the state's constitution. The ruling reversed the decision in Taxpayers for Public Education v. Douglas County School District, a 2013 Colorado Court of Appeals decision upholding Douglas County’s voucher program.
The voucher program awarded taxpayer money to students who could use that money to pay for private schools, including some religious schools. The court found that, in doing so, the voucher program facilitated students attending religious schools and amounted to aid of religious institutions. This violates the state constitutional provision that prohibits government aid to “any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school ... controlled by any church or sectarian denomination.” The Supreme Court of Colorado remanded the case, directing the lower courts to reinstate an order permanently enjoining the program.
This holding based on state law is, of course, in contrast to the U.S. Supreme Court holding in Zelman v. Simmons-Harris. There the Court held that voucher program in Cleveland, Ohio, did not violate the First Amendment, notwithstanding the fact that the program almost exclusively sent kids to private religious school. Many state constitutions have provision that are more restrictive of the flow of public money to religious institutions.
Tuesday, June 30, 2015
On June 19, Texas enacted a law, S.B. No. 507, calling for video surveillance of special education classrooms. The law applies to all public schools, including open-enrollment charter schools, that receive a request from a parent, trustee, or staff member, and within those schools to all self-contained special education classrooms and classrooms in which a majority of the students in regular attendance are provided special education and assigned to a self-contained class or other special education setting for at least half of the instructional day. The schools have to retain video recordings for six months. The video is not to be regularly or continually monitored, and the video is not to be used for teacher evaluation or any uses other than promotion of student safety. But the otherwise confidential recordings must be released for viewing on request by school district employees or parents of students involved in an incident for which a complaint has been reported to the district. It must also be released to Department of Family and Protective Services personnel conducting investigations, police, human resources staff members, and several other designated categories of individuals.
Supporters of the law cited physical injuries and abuse of students with disabilities, particularly students who are nonverbal or uniquely vulnerable in other ways, and said video monitoring will deter the incidents. Opponents were preoccupied with costs – the new law does not create a state funding stream for the equipment, its installation, and operation. Given the pervasiveness of video monitoring in modern society, privacy concerns do not appear to have been paramount, though the singling out of special education is troubling. A better solution surely would be video monitoring in all classrooms. After all, video cameras are now found in vast numbers of stores, public transit facilities, and other public places, and students without disabilities are vulnerable to abuse and mistreatment.
Video monitoring has appeared in the special education caselaw in recent years. In Phipps v. Clark Cnty. Sch. Dist., No. 2:13:00002-GMN-PAL (D. Nev. Apr. 23, 2014), the court refused to dismiss constitutional claims brought by a nonverbal child with autism who alleged that he was abused in a classroom in which the school district had installed surveillance cameras and the video showed abuse of the child by teachers, but no school personnel witnessing events live or on video intervened. In B.A. v. Missouri, No. 4:09CV1269, 2010 WL 1254655 (E.D. Mo. Mar. 24, 2010), the court denied a motion to dismiss an action brought under the Individuals with Disabilities Education Act in which a student alleged serious physical and verbal abuse and asked as a remedy that the school install audiovisual monitoring of all classrooms and hallways.
Monday, June 29, 2015
The Supreme Court granted certiorari today in Fisher v. Univ. of Texas to revisit race-conscious admissions policies at the University of Texas at Austin. The Supreme Court remanded the Fisher case in 2013 for the Fifth Circuit to conduct a "searching examination" of whether UT's policies were narrowly tailored to serve a compelling government interest. The Chronicle of Higher Education reports that in addition to the Fifth Circuit's upholding UT's policy, the justices may also consider new evidence that then-UT Austin President William C. Powers Jr. intervened on behalf of well-connected applicants (the elephant in the room for racial diversity policies in college admissions). The Chronicle of Higher Education's story is here.
State Court Holds That Pennsylvania Department of Education Must Investigate Curricular Deficiencies in Philadelphia
In September 2013, a group of parents filed a lawsuit in state court against the Pennsylvania Department of Education, alleging the Secretary of Education violated her mandatory regulatory duties by failing to carry out her duty to “receive and investigate allegations of curriculum deficiencies.” 22 Pa. Code § 4.81. Last week, the trial court in Allen v. Dumaresq issued an opinion agreeing in large part.
The lawsuit arises out of parents previous attempts to have the Secretary intervene in Philadelphia's under-resourced schools. Parents had previously filed 825 complaints with the Department regarding the reduction of thousands of staff positions and expenditures in Philadelphia schools. The complaints ranged from overcrowded classrooms, inadequate counselor staffing, numerous reductions in art, foreign languages, and physical education in the curriculum, and unsanitary toilet conditions. Petitioners claim that these conditions impede the delivery of the curriculum and students’ ability to learn it. The lawsuit claims that the Secretary never responded to many of those complaints. Those to which she did respond revealed a failure to carry out her duty. The Secretary simply sent out letters calling the allegations a “local matter” and that their allegations would be forwarded to the District.
The trial court reasoned that complaints regarding facilities and staff were non-curricular and, thus, the Secretary was not bound to investigate them. But allegations of reduced access to art, foreign language courses, and physical education were curricular matters. Thus, the Secretary was obligated to receive, investigate and correct these allegations if necessary.
On June 24, the New York Times published an op-ed piece by Paul Morgan and George Farkas with the headline Is Special Education Racist? in which the authors argue that although children who are African American are 1.4 times more likely to be placed in special education than other races and ethnicities combined, the high number is not caused by racial bias. Instead, they contend, black children are underrepresented in special education classes when compared to white children who have comparable levels of academic achievement, behavior, and economic resources. They believe a federal standard for overrepresentation would be a bad move, one that would cause children who need special education to miss out on valuable services.
Overrepresentation has been a major topic among writers on special education law in recent years. I tried to take on the topic in a paper called The IDEA Eligibility Mess, which appeared in the Buffalo Law Review in 2009. My view has something in common with that of Morgan and Farkas. I am very concerned that if artificial limits on eligibility under the Individuals with Disabilities Education Act are imposed on the basis of racial disparities, that step will harm children who need both services and the procedural protections the law provides against suspension and other school discipline when the students’ misconduct results from their disabilities. But the critics who emphasize the statistical disparity have an important point: special education in some instances does not represent extra benefits, but rather means being shunted into isolated programs and placements in which services are of poor quality and the expectations for the students are low. African American children are particularly likely to be in special education settings that are self-contained or have low levels of integration into the mainstream. Schools need to act on the premise that special education is a bundle of extra services to help the child succeed, rather than a place to put the child. If they do not, special education will not provide the benefits that it ought to, and the racial overrepresentation will remain a problem to be addressed.