Friday, June 20, 2014
Request for Information (RFI) on Significant Disproportionality
The U.S. Department of Education (Department) published an RFI in the June 19, 2014 Federal Register requesting public comment on the actions that the Department should take to address significant disproportionality based on race and ethnicity in special education.
The Department is requesting input from the public on actions the Department should take related to:
- significant disproportionality based on race and ethnicity in the:
- identification of children as children with disabilities, including identification by disability category;
- placement of children with disabilities in particular educational settings; and
- the incidence, duration, and type of disciplinary action taken with respect to children with disabilities; and
- ensuring that funds reserved for comprehensive, coordinated early intervening services under Part B of the IDEA are used to effectively address significant disproportionality.
The RFI includes information about how to submit public comments. Responses must be received by July 21, 2014.
Link to OSERS Page: http://www2.ed.gov/policy/speced/guid/idea/disproportionality.html
Thursday, June 19, 2014
The now well-publicized federal lawsuit filed this week by a former high school student after he was suspended for a two-word post highlights the continuing difficulties that school officials have regulating off-campus internet speech. The student, Reid Sagehom, was suspended from Rogers High School in Minnesota for his response to an anonymous question on an unofficial student website asking if he had made out with a female school teacher. Sagehom responded, sarcastically, he says, “Actually yeah.” The school then recommended Sagehom be suspended, ultimately for ten weeks, because he “damaged a teacher's reputation.” Sagehom filed a complaint on Tuesday alleging that his speech was protected and that the subsequent events to the post, including being referred for prosecution and publicly upbraided by a police chief, violated his First and Fourteenth Amendment rights. Sagehom's complaint may likely never reach the decision stage, but raises issues that continue to bedevil the federal courts -- when does students' off-campus internet speech actually cause a substantial disruption to the educational environment under Tinker? Read the complaint in Sagehom v. Independent School District No. 728, 2014 WL 2724866 (D.Minn. June 17, 2014) here.
In Larue v. Douglas County School District, plaintiffs charge that a locally designed voucher program violates the Colorado Constitution. The program would funnel public funds to private, mostly religious, schools on behalf of some Douglas County families.
The Larue trial court issued an injunction that prevented the program from going into effect, but the appeals court overruled. Now the case is before the final decision-maker, the Colorado Supreme Court.
On May 29, 2014, several amici, or "friends of the court," filed briefs in support of plaintiffs. The parties and some amici addressed the state constitution's prohibition against spending public funds on religious education and plaintiffs' standing to bring the lawsuit.
Education Law Center (ELC) and the American Federation of Teachers (AFT) filed a joint amicus brief that provides the Court with the national perspective on key issues relevant to the appeal. This brief explains that:
- School voucher programs in other states have not improved student academic achievement.
- Due to the design of Colorado's formula for state funding of K-12 schools, this voucher plan would reduce resources available to the public school students in Douglas County and across the entire state.
- This voucher plan would send public taxpayer funds to private, religious schools on behalf of well-to-do families.
After the plaintiff parents and taxpayers in the Douglas County School District, a Denver suburb, filed their request for an injunction in 2011, the state district court held a three-day hearing. The court issued its injunction, preventing implementation, and held that the program violates various provisions of the Colorado Constitution and two Colorado statutes.
The Larue case is similar to "Blaine Amendment" cases in Arizona and Florida, where publicly funded vouchers for mostly religious schools were found to violate those states' constitutions.
Wednesday, June 18, 2014
A western Pennsylvania newspaper did some number crunching on school funding, disability, and poverty levels in the area. The paper found that "[o]f the 117 school districts in southwestern Pennsylvania, 40 educated a higher-than-average population of both special education and low-income students during the 2012-13 school year." And "that districts that serve low-income families are more likely to have higher percentages of special-education students. All but 12 of the 52 districts that serve communities with more than 41 percent of students identified as low-income also have a higher than average percent of special-education students. Comparatively, of the 65 districts serving fewer low-income families than average, only 21 have more than 15.3 percent of students identified as special education."
The paper turned to experts to help explain the phenomenon. The response "districts serving poor families deal with several issues that can affect whether a student is identified as special education, . . . including inadequate prenatal care, poor nutrition, and a fetal drug and alcohol problems." Lump on top of that the fact that these poor communities tend to have low tax bases, which means their capacity to fund educational in general is limited. In short, these poor communities experience a perfect storm: student poverty, high levels of disability, and underfunded schools regardless of demographics.
The proposed solution was to make a district's socioeconomic status a factor in special education funding, rather than relying on flat amount. At first glance, that sounds like an appropriate response, although countermeasures are likely also necessary so as to ward of perverse incentives in the identification of disability, which may already exist to some extent and explain so overidentification. Regardless, raising these issues in the context of western Pennyslvania is particularly important because, other than Pittsburgh, the area is is largely rural and white, with significant percentages of poverty and undereducation. These demographics take race out of the picture. All too often, issues of poverty are equated with or clouded by issues of race, impeding a fair and objective look at and response to the problem. That does not, however, mean a solution will be forthcoming. My suspicion is that, as poor and rural districts, these Pennsylvania communities still have limited political sway.
As a side note, those interested in poverty and disability should read James Ryan's recent article discussing the relevance of poverty in the identification of individual students' disabilities.
Tuesday, June 17, 2014
In a surprising about face, the Bill and Melinda Gates Foundation has called for a moratorium on relying on high stakes testing in connection to teacher evaluations and student promotion. The Gates Foundation has played an outsized role in education policy over the past decade and has been instrumental in bringing business perspectives to education, which many educators argue is at the root of ill-conceived reform and reform churn. Regardless, this announcement may also have outsized importance. It could be a momentary pause by the business reformers to give them time to regroup, or it could be a sign of the pendulum swinging back toward more reform from within the education community. If it is to swing back, there is certainly a growing grassroots movement behind it. Moreover, it should be no surprise that this statement comes in the wake of several recent high profile lawsuits in regard to teacher rights and evaluations. See here for more analysis of the Gates release.
The Century Foundation and Lumina Foundation are releasing The Future of Affirmative Action: New Paths to Higher Education Diversity after Fisher v. University of Texas today. The volume includes an introduction by Richard Kahlenberg and chapters Danielle Allen, John Brittain, Nancy Cantor, Anthony Carnevale, Dalton Conley, Arthur Coleman, Peter Englot, Matthew Gaertner, Sara Goldrick-Rab, Scott Greytak, Catharine Hill, Jessica Howell, Benjamin Landy, Richard McCormick, Nancy G. McDuff, Halley Potter, Alexandria Walton Radford, Stephen Rose, Richard Sander, Jeff Strohl, Teresa Taylor, and Marta Tienda.
[T]he authors tackle the critical questions: What is the future of affirmative action given the requirements of the Fisher court? What can be learned from the experiences of states that created race-neutral strategies in response to voter initiatives and other actions banning consideration of race at public universities? What does research by higher education scholars suggest are the most promising new strategies to promoting diversity in a manner that the courts will support? How do public policies need to change in order to tap into the talents of all students in a new legal and political environment?
The book proceeds in five parts: The Stakes; The Legal Challenge; State Experiences with Race-Neutral Strategies; Research on Promising Race Neutral Strategies; and Public Policy Proposals. You can read the book here, watch a webcast discussion of it here, read press coverage here, and get a summary of the key research from the Chronical of Higher Education here.
Monday, June 16, 2014
The Elmbrook School district in suburban Milwaukee conducted high school graduation ceremonies in the auditorium of a church. The district's decision was based on its school's inadequate space and air conditioning. The graduation itself was completely secular, but some the church's religious symbols remained in the auditorium during graduation. The Court of Appeals held that holding the graduation there conveys the message of government endorsement of religion and, thus, struck down the practice. The Supreme Court denied certiorari in the case today, although the denial drew dissents from Justices Scalia and Thomas. You may recall that earlier this term the Court upheld the practice of prayer at the beginning public meetings as a non-coercive historical practice.
The Houston Federation of Teachers and a group high-achieving individual teachers have filed a lawsuit in federal court challenging the "value added" teacher evaluation system recently implemented by the Houston Independent School District. This system is part of the nationwide change in teacher evaluation ushered in through conditions placed on grant applications for Race to the Top and NCLB waivers by the Department of Education. The plaintiffs allege that the evaluation system violates Due Process and the Equal Protection. In particular, they argue the tests and curriculum are not aligned and that they have no ability to challenge the results of the evaluation system. Teachers are then treated unequally and aribitrarily based on these results.
As proof that the system does not work as a practical matter, they point to an award-winning history teacher who has received low marks under the system. In 2011-2012, prior to the new system, the district labeled him as one of the top teachers in the entire district, but the new evaluation system indicates that he makes "no detectable difference” on student learning.
Friday, June 13, 2014
Putting Louisiana's Education Pieces Together?: Discipline, Vouchers, Data, and the State Dept. of Ed.
In the wake of the recent filing of civil rights complaints in regard to discipline in New Orleans charter schools, there is now a call for the state superintendent of education to resign. A local blogger, whose veracity I neither doubt nor affirm, suggests that are other problems of disfunctionality at the Department itself. His story alleges that there is a data crisis at the Department. In particular, he asserts the data is neither secure, nor accurate, and the Department, thus far, has been unable to clean it up. If true, his story adds important context to the school voucher fight between the Department (and Jindal) and the US DOJ's equal educational opportunity section. As readers may recall, that fight ultimately came down to access to basic information and data, with the state requesting extensions of time to turn over the data on more than one occassion.
Back in January, the Colorado Education Association filed a class action lawsuit citing concerns over the “mutual consent” provision of the state’s teacher effectiveness law. Under this provision, school districts cannot force different schools to accept veteran teachers who lost their jobs (usually due to budget concerns at low-performing schools). Rather, the teachers can only be placed in new schools if the principal agrees to hire them. A problem arises when a teacher is unable to find a new position within a year and is subsequently placed on unpaid leave. At this point, the teacher has been dismissed as a practical matter, although not formally. The teachers union argued that this violations the normal process that requires a hearing before an impartial officer for dismissals and layoffs under the Teacher Employment, Compensation and Dismissal Act.
The trial judge recently dismissed the case. The court found that Colorado’s revised teacher-tenure act makes clear that teachers are not guaranteed contractual rights to continued employment at all. Second, the court emphasized that there is a difference between a teacher being removed from one school and put on leave and a teacher being dismissed from the district entirely. Since the teachers are not being dismissed, but merely put on leave, there is less, if any, process due to them in these situations.
I haven't seen an actual opinion in this case, but based on reports, I find it hard to square this decision with the one reached in North Carolina recently. There, the court found that teachers had vested rights and legislatures are not free to change vested rights without implicating constitutional protections regarding the impairment of contracts and taking of property. If the Colorado decision is defensible, it is because it is correct that this "leave" is not the same as dismissal. But after being at home for a year without pay, those teachers would seem to have a job only on paper.
Thursday, June 12, 2014
A New York trial court held in Elissa v. City of New York, 2014 WL 2216883, that a public school was not liable for a student's suicide (prompted by bullying) because the suicide did not happen at the school, but the student could assert a claim for emotional injuries sustained prior to the suicide that occurred at school. The dismissal for the suicide is not surprising, but permitting the emotional harm claim was somewhat. As posted here before, courts often easily rationalize away school responsibility on theories of "no duty" under both state and federal law, and back it up with precedent. This case is remarkable for the amount of precedent to which it cited in favor of holding the district liable. In pertinent part, the court wrote:
the duty to adequately supervise the students is co-extensive with the school's physical custody and control over them ( See Pratt v. Robinson, 39 N.Y.2d 554, 560 ; see also Maldonado v. Tuckahoe Union Free Sch. Dist., 817 N.Y.S.2d 376 [2d Dept.2006]; Chalen, 814 N.Y.S.2d 254; Morning v. Riverhead Cent. Sch. Dist., 811 N.Y.S.2d 747 [2d Dept.2006]; Tarnaras v. Farmingdale Sch. Dist., 694 N.Y.S.2d 413 [2d Dept.1999] ). . . . However, the plaintiff's claim of emotional injuries was not dismissed, since that harm was inflicted when the student was within the school's physical custody.
With respect to plaintiff's causes of action seeking to recover damages for the emotional injuries sustained by the decedent prior to his death, defendant's have failed to establish their prima facie entitlement to dismissal of such claims.
These emotional injuries were allegedly sustained by the decedent during school hours and on school premises and, as such, plaintiff may seek recovery of these damages based on a theory of negligent supervision. Therefore, plaintiff is not required to plead the existence of a separate and distinct special duty to recover damages for the emotional injuries sustained by decedent prior to his death ( See, e.g., Miccio, supra at 543, 735 N.Y.S.2d 202).
Moreover, a claim that a school failed to adequately address the ongoing harassment of the decedent and that the decedent sustained emotional injuries as a result is a cognizable cause of action ( See Cavello v. Sherburne–Earlville Cent. Sch. Dist., 494 N.Y.S.2d 466 [3d Dept.1985]; see also Barmore v. Aidala, 419 F.Supp.2d 193, 206 [N.D.NY 2005] ).
As such, defendant's claim that a school district's response to harassment and bullying is a discretionary governmental function for which no liability may attach is without merit ( See Barmore, supra, at 206). Indeed, the adequacy of a school's supervision of its students generally presents a question of fact ( See Braunstein v. Half Hollow Hills Cent. Sch. Dist., 962 N.Y.S.2d 340 [2d Dept.2013]; Palmer v. City of New York, 970 N.Y.S.2d 583 [2d Dept.2013]; Oakes v. Massena Cent. Sch. Dist., 797 N.Y.S.2d 640 [3d Dept.2005] ).
Plaintiff's deposition testimony demonstrates that she and the decedent made multiple complaints to multiple school officials regarding the harassment of the decedent, while testimony by the school officials shows that they may not have been aware of the severity of the bullying. In addition, the school addressed harassment by visiting classrooms to educate students regarding the use of the word “gay.” They also hung posters and distributed brochures to educate students on harassment and the steps to report it. However, not all of the students alleged to have harassed decedent were disciplined.
Clearly this demonstrates the existence of triable issues of fact regarding the school's knowledge of the harassment of the decedent and the adequacy of their response thereto ( See Wilson, supra, at 1000–01; Cavello, supra, at 255, 494 N.Y.S.2d 466).
Wednesday, June 11, 2014
Inhibiting Intrastate Inequalities: A Congressional Approach to Ensuring Equal Opportunity to Finance Public Education
Michigan Law Review has published an interesting student note, Inhibiting Intrastate Inequalities: A Congressional Approach to Ensuring Equal Opportunity to Finance Public Education, by Joshua Arocho. It is primarily a policy argument, premised on Congress using its spending legislation to encourage states to adopt a "Guaranteed Tax Base" for all districts. The abstract states:
The United States has exhibited a strong commitment to public education throughout its history. The local control of education long associated with the United States' federal system, however, has led to extreme inequalities in education finance within states. This reality, held constitutionally permissible by the Supreme Court in San Antonio Independent School District v. Rodriguez, is a product of heavy reliance on local property taxation as a means to fund schools. Although levying property taxes is a permissible state action to promote local control of education, its unaltered use is archaic and ultimately detrimental due to the United States' growing income gap and corresponding wealth segregation in the housing markets. Because federal and state court litigation has produced an intractable and inequitable split in education policy that remains unsolved by current federal- and state-led initiatives, this Note argues that a conditional congressional grant of funds would serve as a new, more politically feasible solution to this problem. By making federal funding under the next reauthorization of the No Child Left Behind Act contingent on states' adoption of new school finance systems, particularly the Guaranteed Tax Base, Congress can encourage states to give all communities an equal opportunity to finance a high-quality education for their students, regardless of the value of their taxable property.
Download the full article here.
Tuesday, June 10, 2014
Does Arne Duncan read my blog? Absolutely not (although hopefully at least one person in the Department does). But a few hours after my blog post yesterday, he did answer the question I posed in it. He indicated that Oklahoma (and by extension South Carolina) was not at risk of having its NCLB waiver or funding revoked as a result of pulling out of the common core. That does not, however, negate the next step. Per my comments yesterday, those states still must come up with an alternative to the common core or they will find themselves in trouble.
LaJuana and I both posted on Vergara v. California (here and here) earlier this spring. The lawsuit alleged that statutes that keep ineffective teachers in place violate students' fundamental right to education (under the state constitution) by subjecting students to subpar educational opportunity. According to LA School Report, the judge agreed this morning:
It was a total win for the plaintiffs in Vergara v California, giving them a victory on all counts in the case, aimed at striking down five laws that govern tenure, seniority and dismissal. Judge Rolf Treu stayed any changes in the laws, pending appeals.
The decision is temporary, and final judgement may take as long as 30 days, depending upon any changes or modifications to the ruling.
Teacher tenure lawsuits have dominated recent events. Just yesterday, I posted on North Carolina's. California's suit, however, is distinct. In California, the court decision is saying that giving teacher's extensive tenure protections is unconstitutional. In North Carolina, the court held that taking those rights away from teachers is unconstitutional. Tomorrow I will post on another lawsuit in Texas similar to North Carolina's. All of these cases will eventually be decided by higher courts. Although in different jurisdictions, the challenge will be developing coherent doctrine that does not create intractable positions between teacher rights, student rights, and policy developments. No easy trick.
The Republican leadership in the Delaware House has introduced legislation that would allow state per pupil expenditures on education to follow the child, even if the student goes to private school. Every state has a funding formula that allots state funds to local school districts based on the number of children they serve. For each child, the state directs a set amount of funding to the district, typically $7,000 to more than $10,000 per pupil, depending on the state. The Delaware legislation would allow students to have those funds directed to a private school. This is distinct from a voucher program, which technically does not draw on the state public education funds and is not tied to per pupil formulas. Allowing private schools to tap into the state per pupil allotments would be a first.
From one perspective, the legislation would not entirely revamp the current philosophy of educational choice and funding. It would create a funding stream analogous to some charter school laws. Charter schools draw a per pupil allotment from the state and are not part of the traditional public school system. In addition to a charter, under this bill, students could also go to a private school.
From another perspective, this bill would fundamentally change education in Delaware. Charters have to be authorized and still operate under some level of state oversight. This legislation would remove all government oversight and decision making in regard to state per pupil funding outside of public schools. Decisionmaking would be entirely consumer based and, thus, the bill would completely privatize a portion of public education funding. I have previously warned of the dangers of unregulated public education policies and those that would place public schools in a competitive environment that is per se to their disadvantage, so I won't rehash them here. To the legislation's credit, it does offer one hedge against some of those dangers. It phases out the applicability of the law for higher income families.
Households with income low enough to qualify for free or reduced-price lunch would receive the same amount as a school district would get to educate their child. For last year, that means $43,568 for a family of four. Families that earn less than 1.5 times that amount would get 75 percent; families than earn between 1.5 times and twice the amount to qualify would get half, and families that earn between 2 and 2.5 times the amount to qualify would get a quarter.
The remainder of that student's allotment would go to their home district as normal.
For those taking the skeptical perspective, take a breath. The bill was introduced by the minority leadership, not the majority, in the Delaware House. Even they admit the passage of this bill is a long term project.
Monday, June 9, 2014
As promised in an earlier post on the case, I secured the trial court opinion invalidating North Carolina's teacher tenure repeal statute. Interestingly, the decision was not based on due process, but on the contracts clause in the U.S. Constitution and the state constitution's takings provision. The court reasoned that those teachers in North Carolina who had attained career status prior to the new statute had a vested contractual right in their career status and that the repeal of that right amounted to an impairment of contract, which is prohibited by the U.S. Constitution. Likewise, because those contract rights were vested, the repeal of those rights amounted to a taking without just compensation under state law. The full opinion is here: Download NCAE v State - Summary judgment order 6 6 14
For the most part, I have avoided posting on the common core because the controversy has practically involved a 24 hour news cycle over the past several months, and most of it was politics and activism, not law. Now it is becoming law. Over the past two week, Oklahoma and South Carolina's governors signed laws pulling their states out of the Common Core State Standards initiative. They joined Indiana, which had officially withdrew from the common core earlier. Florida is reportedly considering pulling out as well.
For educators, the Common Core is a matter of pedagogy and curricular content. But these pull-outs also have potentially serious legal consequences, meaning the issues is equally important for bureaucrats and lawyers. The No Child Left Behind waivers granted last year were conditioned on states adopting academic standards that were benchmarked across states, rather than just within states. Adopting the Common Core met that condition. States pulling out must find an alternative. To my knowledge, there is not one readily available, meaning their waivers may be in jeopardy in the future.
Following a number of school religious expression bills introduced in state legislatures in the last year, the North Carolina House passed a bill last week that allows public school students to pray, express religious viewpoints, pass out religious materials, and assemble "as is given to other noncurricular groups without discrimination based on the religious content of the students' expression." The N.C. House approved S.B. 370, which also provides that school employees who are viewing student religious expression "shall not be disrespectful of the student exercise of such rights and may adopt a respectful posture." The bill will have to return to the state senate for final approval, where it is expected to pass. The ACLU of North Carolina released a statement objecting to the bill's language which it says could leave school officials unclear about the rules, particularly as adopting "a respectful posture" could communicate approval of one religious view above others. In application, the legislation is certain to highlight the tension between the Establishment and the Free Speech and Exercise Clauses that currently require public school officials to show neutrality in their treatment of religion and not inhibit student expression of privately-held views as long as that expression does not infringe upon the rights of others. For an overview of the constitutional issues, read the ED's Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools here.
Friday, June 6, 2014
Halley Potter, research associate at The Century Foundation and David Tipson, director of New York Appleseed, published an interesting editorial in the New York Times this week calling for the elimination of gifted and talented programs in the New York City Schools. The editorial draws on a report published by Appleseed earlier this year: Segregation in NYC District Elementary Schools and What We Can Do About It: Addressing Internal Segregation and Harnessing the Educational Benefits of Diversity. They argue the gifted and talented program has a
long history of exacerbating socioeconomic and racial segregation within city schools. As of 2011, roughly 70 percent of all New York City public school students were black and Latino, but more than 70 percent of kindergartners in G&T programs were white or Asian. Successive attempts to fix the problems associated with G&T admissions have in many cases only increased disparities. These trends show no sign of reversing in newly released New York City Department of Education data, which confirm that wealthier community school districts continue to dominate G&T placements.
After discussing the harms of segregation, they call for the
New York City schools [to] take a schoolwide approach to gifted education, eliminating separate G&T tracks and incorporating identified students into mixed-ability classrooms. A number of New York City public schools, such asBELL Academy and Veritas Academy in Queens, already use the Schoolwide Enrichment Model, which Chancellor Carmen Fariña favors, to offer “gifted education for all” through academic enrichment tailored to each student’s strengths.
The link to the full article and the discussion board following it, see here. As you will see, it has generated an unusual amount of conversation.
The Education Law & Policy Institute at Loyola University School of Law will present its seminar, “Education Law: A Year in Review” on June 25, 2014, from 1-5 p.m. The seminar will address important developments in the area of education law during the past year. Topics to be addressed include recent federal guidance on school discipline, bullying, and sexual violence; best practices in special education due process hearings; and other hot topics in the area of education law. CLE credit is available, and a reception will follow the program. As part of the Civitas ChildLaw Center, the Loyola University Chicago Education Law and Policy Institute is designed for students, faculty, judges, practitioners, business leaders and policy makers who strive to serve the educational needs of children through the law. For the full program and to register, click here.