Friday, May 13, 2016
The U.S. Department's of Justice and Education have released joint policy guidance regarding the rights of transgender students under Title. The guidance does not mince words or over-complicate the issue, but simply states that the "Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity." This emphatic position was no doubt helped by the recent Fourth Circuit decision in Grimm v. Gloucester County School Board. As the guidance explains:
The Departments’ interpretation is consistent with courts’ and other agencies’ interpretations of Federal laws prohibiting sex discrimination. The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity. Because transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence), requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.
A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.
Thursday, May 12, 2016
Second Circuit Restores Class Certification Claim For Former Students Of Failed Vocational School Chain
The Second Circuit recently reversed the dismissal of a class action lawsuit by former students of a chain of cosmetology schools, even though the Department of Education (DOE) had discharged the student loans of the named plaintiffs, because the issue was likely to reoccur with other plaintiffs in the class. The Second Circuit held in Salazar v. King, Sec. of Education, No. 15-832 (2nd Cir. May 12, 2016), that the suit was not moot under an exception for “inherently transitory” class action claims that related back to the complaint's filing. Plaintiffs had alleged in the suit that the beauty school chain, Wilfred American Educational Corporation, fraudulently certified students' eligibility for federal student loans by telling the government that students without a GED or high school diploma had an “ability to benefit” from the program, which the Education Department required to certify eligibility for federal student loans. Wilfred did this by certifying that its students had passed an approved ATB test when they had not. Wilfred, which got nearly 90% of its revenue from student loan payments, eventually closed, leaving many of its attendees without the ability to complete their training. The U.S. government nevertheless required Wilfred students to repay their federal student loans for some years afterwards, some through tax refund seizures and wage garnishments. The Wilfred plaintiffs were never told that their student loans could be discharged by the Education Department if the school falsely certified their eligibility. The Second Circuit reversed the district court's finding that the DOE's actions were unreviewable under the agency discretion doctrine. The opinion is available here.
Last year, Sheri Lederman stood up to the state of New York and those who think that teachers can be precisely measured by how their students perform on standardized exams. After 17 years of teaching and positive appraisals of school officials, she must have been shocked when New York's new value added model rated her as ineffective. She sued, claiming the system was irrational. This week a trial court agreed. The court acknowledged how hard the state had worked to develop the system, its complexities, and the court's own limitations in proposing a better solution, but the court concluded it had no choice but to find the system irrational as applied to Lederman. Based on submissions from a who's who list of education experts, the court found:
that petitioner has met her high burden and established that petitioner's growth score and rating for school year 2013-2014 are arbitrary and capricious.
The Court's conclusion is founded upon: (1) the convincing and detailed evidence of V AM bias against teachers at both ends of the spectrum (e.g. those with high-performing students or those with low-performing students); (2) the disproportionate effect of petitioner's small class size and relatively large percentage of high-performing students; (3) the functional . inability of high-performing students to demonstrate growth akin to lower-performing students; (4) the wholly unexplained swing in petitioner's growth score from 14 to 1, despite the presence of statistically s_imilar scoring students in her respective classes; and, most tellingly, (S) the strict imposition of rating constraints in the form of a "bell curve" that places teachers in four categories via pre-determined percentages regardless of whether the performance of students dramatically rose or dramatically fell from the previous year.
This makes the trial court in Lederman the second court to reach this conclusion. Late last year, the trial court in New Mexico ex rel. Stewart v. New Mexico Public Education Department, No. D-101-CV-2015-00409 (N.M. Dec. 2, 2015), enjoined New Mexico's value added model of teacher evaluation. Although the state is free to continue to use its model for diagnostic or other purposes, the court held that the state cannot use it for high stakes purposes of terminating teachers or placing teachers on notice of future termination. Nor can it use the model to revoke licenses or deny raises. Throughout its opinion, the court found various aspects of the evaluation system that made it generally unreliable. It emphasized, for instance, the random variations in the model’s results for teachers from district to district and year to year. As one superintendent admitted, he could not determine why a teacher was rated as ineffective; he just knew that was her rating.
Combined, these two cases would suggest that Cook v. Bennett, 792 F.3d 1294 (11th Cir. 2015), which upheld Florida's value added model, is the odd man out. As discussed here, Florida's system may be one of the most troubling of all. It shares many of the same flaws as New York's system, but also assigns value-added scores to teachers whose subjects are not even tested on standardized exams. For them, it uses a composite of how students performed on other subjects. If New York's system is arbitrary, one struggles to offer a justification for Florida's.
Tuesday, May 10, 2016
Ohio Supreme Court Holds That State Education Department Can Retroactively Claim Funds From Districts' Budgets
The Ohio Supreme Court recently reversed a trial court ruling and held that the State could retroactively lower school districts' funding without running afoul of the state constitution's retroactivity clause. The case arose when the State Dept. of Education determined that school boards in the Cleveland, Cincinnati, Dayton, and Toledo districts had been overpaid for fiscal year 2005 when it mistakenly counted students as part of district budgets even though the students were attending community schools outside of their home districts. The department recouped the overpayment by deducting the amounts from the boards’ school-foundation funding during fiscal years 2005-2007. The Cincinnati School District sued the department over its fiscal-year-2005 adjustment of Cincinnati’s school-foundation funding but settled before the Ohio Supreme Court could decide the case. In the meantime, the Ohio General Assembly passed legislation that allowed the department to adjust school funding retroactively and immunized the department from liability for any legal claim for reimbursement brought by a school district. The school districts argued and won a claim at trial that the elimination of their funds and of potential state liability violated the constitution's retroactivity clause because it impaired the boards’ substantive right to accrued education funding. The Ohio Supreme Court agreed with the department's position that the retroactivity clause was historically interpreted to protect private parties, not arms of the state, relying on U.S. Supreme Court holdings that political subdivisions do not have the same rights as private corporations or individuals, and authority from other state courts concluding that legislatures may retroactively reclaim money from school district budgets. The case is Toledo City School Dist. Bd. of Edn. v. State Bd. of Edn. (Ohio May 4, 2016).
The Office for Civil Rights has released its annual report to Congress. Like last year, it is very well written and informative--a break from past traditions. The biggest numbers OCR wanted to emphasize is that it processed over 10,000 complaints--a new record high--with only 540 staff members--a new record low. Doing more with less will certainly make many in Washington happy, but it may also raise questions as to whether OCR is doing the job as well as it could or should. The numbers won't really tell us that. On the other hand, it is possible that OCR has wrenched out this efficiency without sacrificing quality by being very clear about its own standards. If OCR is clear with itself and school districts as to exactly what a violation of Title IX is, for instance, then it might move more quickly to reach a resolution of complaints in that area. Toward that end, this current administration has done an excellent job of updating and issuing various different policy guidance documents. In just this past year, OCR released nine separate policy guidance documents. This is on top of several key ones from the prior year in areas like school discipline and resource equity. None of this, however, should undercut OCR's request for more resources. The demand for OCR's services is clearly high and the current stewards of those resources are allocating them well. Sounds like an agency to support, not undermine.
The report offers this executive summary:
In In FY 2015, the quality and pace of OCR’s enforcement work remained high. OCR received a record-high 10,392 complaints, initiated 19 compliance reviews and directed inquiries, and resolved 9,250 cases overall, including 1,044 resolutions that secured changes protective of students’ civil rights in schools around the nation. (See the Appendix for the total number of resolution agreements in FY 2015 by jurisdiction, state, and type of investigation.) Over several years, the number of complaints OCR received generally rose in several areas, including restraint or seclusion of students with disabilities; accessibility of curriculum through technology for students with disabilities; harassment based on race, color, or national origin; appropriate support for English Learner (EL) students; and sexual violence.
OCR developed and released nine policy guidance documents and hosted policy-related listening sessions with stakeholders on the following issue areas:
• resource equity and resource comparability and discrimination based on race and national origin;
• obligations of elementary and secondary schools to respond to the bullying of students with disabilities that denies a free appropriate public education (FAPE) and disability-based harassment of students with disabilities;
• schools’ obligations surrounding effective communication for students with disabilities;
• questions and answers regarding singlesex elementary and secondary classes and extracurricular activities;
• applicability of federal civil rights laws to juvenile justice residential facilities; • implementing the Centers for Disease Control and Prevention’s (CDC) Ebola guidance for schools;
• schools’ obligations to ensure that EL students can participate meaningfully and equally in school and to communicate information to limited English proficient (LEP) parents in a language they can understand;
• addressing the risk of measles in schools and school obligations to students with disabilities medically unable to obtain vaccinations; and
• the importance and role of Title IX coordinators in fostering compliance with Title IX of the Education Amendments of 1972.
OCR provided more than 250 technical assistance sessions to a wide range of stakeholders – including schools and districts, state education agencies, colleges and universities, parent groups, nonprofit organizations, advocacy organizations, and other federal agencies – and conducted other outreach to galvanize action on important civil rights topics. Notable outreach efforts include a convening at the White House on school discipline (with the Supportive School Discipline Initiative), a celebration of the 25th Anniversary of the Americans with Disabilities Act, and continued leadership in the White House Task Force to Protect Students from Sexual Assault.
OCR administered and collected data for the 2013-14 school year Civil Rights Data Collection (CRDC) from approximately 97,000 public schools serving about 49 million students nationwide. OCR improved the data collection process for thousands of school districts by instituting customized data submission checks that provided them with realtime technical assistance while significantly cutting back on the possibility of submission errors. OCR also launched a pilot program with eight states to pre-populate local CRDC data, thereby dramatically reducing the reporting burden on districts in those states.
Wednesday, May 4, 2016
Michelle J. Anderson (CUNY) has posted Campus Sexual Assault Adjudication and Resistance to Reform on SSRN (125 Yale Law Journal, 2016 (Forthcoming)). From the abstract: The forty-year history of rape law reform sheds light on current debates around the adjudication of campus sexual assault. Two strands of rape law reform are important. The first, a progressive reform movement, abolished the unique procedural hurdles in rape prosecutions. That movement is now transforming the key elements of the crime: force and nonconsent. The second reform movement, conservative in nature, increased criminal and civil punishments for rape. While there has been a backlash to the reformation of force and nonconsent, there has been little political or scholarly opposition to the imposition of increased punishments for rape. The Office for Civil Rights at the Department of Education recently clarified that Title IX, which outlaws sex discrimination in education, requires colleges and universities to respond promptly and equitably to allegations of campus sexual assault. In addition, colleges and universities are increasingly adopting affirmative consent rules, a standard higher than most state criminal codes, to govern sexual activity on campus. These progressive changes in campus sexual assault adjudication have faced a backlash, mirroring the backlash to progressive rape law reform. Rape law’s evolution over time suggests not only that we should support campus adjudication of sexual assault under an affirmative consent standard, but also that we should oppose both unique procedural protections for those accused and mandatory punishments for those found responsible.
The Gap between Rights and Reality: the Intersection of Language, Disability, and Educational Opportunity
Claire Raj (South Carolina) has posted "The Gap between Rights and Reality: the Intersection of Language, Disability, and Educational Opportunity" on SSRN. From the abstract: To date, schools and courts have largely ignored the intersection of language and disability, operating as though the IDEA addresses one set of students and the EEOA an entirely different set. Many schools select and implement their English language acquisition programs without giving any thought to the unintended consequences on special education. This approach, sanctioned by courts, is both flawed and dangerous because a school’s chosen language program can either impede or enhance the accurate identification of students with disabilities. Even more worrisome, some schools use language acquisition as a justification to delay identification of ELLs with disabilities. While this is inconsistent with the intent of the IDEA, provisions of the IDEA, as interpreted by courts, do not adequately prevent it. Even worse, EEOA precedent may actually encourage such delays. As a result, students with dual challenges of language and disability do not receive the necessary educational services these two statutes are designed to provide. The mixed messages from statutes and courts can be resolved, but such cohesion requires reading the IDEA and EEOA together, not separately. This Article provides the specific analysis by which to do so.
Killing Two Achievements with One Stone: The Intersectional Impact of Shelby County on the Rights to Vote and Access to High Performing Schools
Steven L. Nelson (Memphis) has posted his article on the Intersectional Impact of Shelby County on voting rights and access to high quality education on SSRN (published in 13 Hastings Race & Poverty L.J. 225 (2016)). From the abstract: The Supreme Court’s decision in Shelby County restricted access to political participation for Black voters in New Orleans. In particular, this Article argues that the Shelby County decision allows states to use the charter school movement to displace predominately Black and elected school boards with predominately White and non-elected school boards. Furthermore, this Article asserts that there are better formats for charter school governance if academic accountability remains a goal of the charter school movement.
Nicole Garnett (Notre Dame) has posted her article (forthcoming, Vanderbilt Law Review) discussing "the blurring of the distinction between charter and private schools" in education reform efforts on SSRN. From the abstract: Over the past two decades, the landscape of elementary and secondary education in the United States has shifted dramatically, due to the emergence and expansion of privately provided, but publicly funded, schooling options (including both charter schools and private-school choice devices like vouchers, tax credits and educational savings accounts). This transformation in the delivery of K12 education is the result of a confluence of factors—discussed in detail below—that increasingly lead education reformers to support efforts to increase the number of high quality schools serving disadvantaged students across all three educational sectors, instead of focusing exclusively on reforming urban public schools. As a result, millions of American children now attend privately operated, but publicly funded, schools. This rise in a “sector agnostic” education policy has profound implications for the state and federal constitutional law of education because it blurs the distinction between charter and private schools. This paper explores three of the most significant of these implications.
U.S. Departments of Education and Housing Are on the Same Page: Desegregate If You Want to Cut Achievement and Opportunity Gaps
The U.S. Department of Housing and Urban Development (HUD) has released a new report that comes out heavily in favor of coordinating housing and education policy to produce integration. The reasoning is simple and compelling: school and housing integration combined slash achievement gaps like nothing else. Speaking of such a policy in Montgomery, Maryland, the report emphasizes that "After 7 years, the public housing students at lower-poverty schools cut the math achievement gap with their higher-income peers in half, while the public housing students at higher poverty schools showed no relative improvement."
I am sure that I am beginning to sound like a broken record, but after decades of neglect, it feels like the stars are finally aligning around coordinated efforts and concerns to make a dent in segregation (or these are just the last hurrahs of an outgoing administration with nothing to lose). As discussed yesterday, segregation is coming under serious fire from the academic community, the Department of Education, and now HUD.
HUD's report is divided into five sections:
First, the report describes how school poverty is closely associated with children’s school performance, how neighborhoods relate, and how housing policies are an important complement to school choice programs. Second, the report details the current state of housing and school segregation, how the relationship between neighborhoods and schools creates a vicious circle, and how families choose homes and schools. Third, the report suggests how stronger institutional relationships and place-based initiatives could improve children’s school options. Fourth, the report proposes how affordable housing could be sited near opportunity schools. Fifth, the report describes housing mobility programs, including regional programs, and identifies how to help families with vouchers access opportunity schools as well as opportunity neighborhoods.
The report's major recommendations include:
• Coordinate school, housing, and transportation planning, including place-based programs. Sustainable, institutionalized processes could align related policies at all levels of government, providing a platform for coordinated strategies to support students attending low-quality, high-poverty schools.
• Build place-based housing-education partnerships. These partnerships can support low-income students and school improvement strategies. Also, school strategies such as magnet schools can complement place-based programs, enabling children in revitalizing areas to attend highquality, integrated schools.
• Encourage affordable housing development near high-quality schools. The Low-Income Housing Tax Credit (LIHTC) Program, for instance, could provide a bonus for development located near high-performing schools, and the U.S. Department of Housing and Urban Development’s (HUD’s) Section 8 Management Assessment Program could encourage PHAs to increase voucher use near high-quality schools.
• Support mobility at the regional level. Children often must move outside their current school district or PHA’s jurisdiction to attend higher-performing, lower-poverty schools and live in a lower-poverty neighborhood. Regional strategies can better match low-income families and opportunity areas. Promising regional strategies include regionally administered vouchers, regional project-based voucher pools, and regional waiting lists. The federal government could help with technical assistance, evaluation, waivers, and financial support.
• Consider schools when designating opportunity areas for housing voucher mobility programs, and be flexible when defining those areas. Only a subset of low-poverty neighborhoods provide access to low-poverty or highperforming schools; low-poverty neighborhoods do not guarantee access to high-quality schools. Communities could aim for high-performing elementary schools, such as those identified by local value-added performance measures. They could also avoid resegregating schools by considering schools’ economic and racial composition.
• Help families use housing assistance in opportunity neighborhoods and near opportunity schools. Mobility counseling can provide families with concise, understandable information on neighborhoods and their schools, including how those schools compare with the schools their children currently attend. The federal government can support more and higher-quality mobility counseling, better and simpler ways to provide families with their housing and school options, and more research on effective counseling. This support could include a voucher demonstration to provide access to both opportunity neighborhoods and opportunity schools. The federal government can also help communities encourage landlords in opportunity areas to participate.
Tuesday, May 3, 2016
Rising Income Inequality Is Fueling School Segregation: Families with Resources Increasingly Buy Into Exclusive School Attendance Zones
It is shaping up as a bad month for school segregation--kind of. Secretary John King has been pushing for new integration policies. Sean Reardon and his colleagues released a new study finding that money alone cannot close the achievement gaps that segregation creates. And now, Ann Owens has delved into the sociological aspects of segregation and found that economic inequality itself is a source of school segregation, at least, among families with children. In Inequality in Children’s Contexts: Income Segregation of Households with and without Children, she finds that wealthier families without children are not so much of a problem for school segregation. But wealthier families with children make housing choices based on schools that intensify school segregation. In the current environment, they are predisposed to, in effect, buy their way into particular public schools. In other words, for them, the public school system is not so different from the private school system. The difference is that instead of paying tuition to the realtor, you pay it through your realtor.
On one level, this makes perfect sense, and families buying homes in "good" neighborhoods so that their children will attend "good" schools is not new. Owens' study, however, points out that the ability and incentives to exercise this type of choice have increased over time, and the results have become more glaring. With increasing income inequality, there are more clearly schools that some families do not want to send their kids to. At the same time, those same families have the purchasing power to go elsewhere, and they know where to go. Her abstract explains:
Past research shows that income segregation between neighborhoods increased over the past several decades. In this article, I reexamine income segregation from 1990 to 2010 in the 100 largest metropolitan areas, and I find that income segregation increased only among families with children. Among childless households—two-thirds of the population—income segregation changed little and is half as large as among households with children. I examine two factors that may account for these differences by household composition. First, I find that increasing income inequality, identified by past research as a driver of income segregation, was a much more powerful predictor of income segregation among families with children, among whom income inequality has risen more. Second, I find that local school options, delineated by school district boundaries, contribute to higher segregation among households with children compared to households without. Rising income inequality provided high-income households more resources, and parents used these resources to purchase housing in particular neighborhoods, with residential decisions structured, in part, by school district boundaries. Overall, results indicate that children face greater and increasing stratification in neighborhood contexts than do all residents, and this has implications for growing inequalities in their future outcomes.
The text of the article offers these findings:
- The increase in residential income segregation occurred entirely among families with children, for whom income segregation rose by about 20 percent. Among childless households—two-thirds of the population—income segregation did not change, on average. By 2010, income segregation between neighborhoods among families with children was twice as high as segregation among childless households. My findings reveal that the current narrative of an increasingly unequal metropolis in terms of income segregation is true only for families with children.
- My findings show that the relationship between income inequality and income segregation is twice as large among households with children, for whom income inequality rose more. Income inequality changed little among childless households during this time period, and households without children may have different residential concerns and spending priorities, so that income inequality is a less powerful predictor of income segregation. Among families with children, high-income parents may have become increasingly concerned about their children’s well-being, or they may have prioritized expenditures on residence in neighborhoods seen as advantageous for their children, and rising income inequality provided the resources with which to achieve these residential goals.
- [S]egregation is highest and has risen steadily between neighborhoods among affluent families with children. Growing income inequality and concerns about educational advantages for children may contribute to high segregation of affluent families. As the cultural norms around parenting and investments in children have intensified, spending on investments in children has risen among families at the top of the income distribution (Kornrich and Furstenberg 2013). My results indicate that real estate is another area where the class gap in investments in children has grown— income segregation between high- and low-income families with children has increased.
In her conclusions, she points out that school choice policies have done almost nothing "to overcome the role of neighborhood racial and income segregation in creating segregated schools [because] nearly all school choice plans operate within school districts." As a result, "they do not address the increasing economic homogeneity of school districts documented here." Her solution is to "consider new ideas in breaking the link between neighborhood residence and school attendance to thwart the increasing pace of segregation between neighborhoods, schools, and school districts among families with children." More particularly, policy makers should "redraw district boundaries to reduce the number and fragmentation of districts within [metropolitan areas]." She also points out that breaking the link between housing and schools may also have a positive effect on housing, as it could "reduce the capitalization of school quality into home prices, facilitating neighborhood income integration."
Monday, May 2, 2016
The past few weeks have included a bevy of data and new resources on school funding, segregation, and academic achievement. NPR developed a multi-week story on school funding, slowly and methodically teasing out its complexities. Last week, Sean Reardon and his colleagues released analysis of a new data set looking at academic achievement, school resources, and segregation. Both go an extremely long way toward documenting educational inequality and making it easily accessible to the average person. They come on top of a slow burning advocacy for integration at the state, local, and federal levels over the past few years. Finally, educational inequality and segregation are back in the mainstream conversation.
Reardon's new research, which is now dominating the most recent news cycles, makes an extremely important nuanced point worth emphasizing--a point the media could easily miss with all the fancy info-graphics and interactive charts showing just how unequal achievement is. Reardon and his colleagues state the following major findings:
- One sixth of all students attend public school in school districts where average test scores are more than a grade level below the national average; one sixth are in districts where test scores are more than a grade level above the national average.
- The most and least socioeconomically advantaged districts have average performance levels more than four grade levels apart.
- Average test scores of black students are, on average, roughly two grade levels lower than those of white students in the same district; the Hispanic-white difference is roughly one- and-a-half grade levels.
- Achievement gaps are larger in districts where black and Hispanic students attend higher poverty schools than their white peers; where parents on average have high levels of educational attainment; and where large racial/ethnic gaps exist in parents’ educational attainment.
- The size of the gaps has little or no association with average class size, a district’s per capita student spending or charter school enrollment.
This very last finding is a bombshell and could be used for good or bad. Some would use it to say money does not matter to educational outcomes. That simplistic conclusion overlooks two major points. First, there is plenty of research to demonstrating that money matters a lot when spent on the right things. Second, Reardon's point is not that money is irrelevant, it is that "racial segregation is inextricably linked to unequal allocation of resources among schools; and that policies that don’t address this will fail to remedy racial inequality. 'In sum, racial integration remains essential for reducing racial disparities in school poverty rates.'” This reminds me of an argument James Ryan made 17 years ago:
Chapel-Hill, North Carolina, has long boasted one of the finest public school systems in the nation. They have a community totally committed to education; they fund their schools at high levels; they pay their teachers a nice supplement; and their students are apparently a pleasure to teach. I was once told that with the number of AP courses offered (and the extra GPA points they offer), the average GPA at Chapel Hill was close to 4.0. What should come as a surprise is that even Orange County-Carrboro (the district in which Chapel hit resides) is struggling to retain teachers. The News and Observer reports:
Orange County’s school districts have asked county commissioners for $8.3 million more next year, in part to slow the tide of teachers leaving for other districts.
The Chapel Hill-Carrboro and Orange County school districts pay supplements of 10 percent to 12 percent on top of state-mandated base salaries for new teachers. But annual turnover has risen to 18.5 percent in the Chapel Hill-Carrboro schools and 18 percent in Orange County, district officials said.
That left Chapel Hill-Carrboro without enough qualified elementary teachers this year and made it difficult to find other teachers, they said. Competition is compounding the problem. Wake, for instance, offers new teachers up to $2,500 more, Chapel Hill-Carrboro officials said, and invested $16 million in teacher salaries in October, the first step in a five-year plan to meet the national average.
That prompted the school board in April to raise next year’s supplement to 16 percent and offer signing bonuses for math, science and exceptional class teachers.
“The recruiting season is now, so there’s certainly no way we could stand at a table next to Wake and say, ‘Hey, come to Chapel Hill-Carrboro, we’ll give you 12 percent, and they’ll give you 18,’” school board member Rani Dasi said. “It really didn’t feel like a choice for us.”
The source of the problem is the overall disinvestment in education since the recession, and North Carolina is one of the nation's worst examples. When one of the state's-if not the nation's finest districts--struggles to hold onto its teachers, one can only imagine how tough things are in disadvantaged communities. More here on funding cuts, teacher shortages, and the dwindling commitment to public education (along with suggestions about how to avert the next educational crisis).
Thursday, April 28, 2016
The Huntsville (AL) Education Association (HEA) sued Huntsville City Schools last week alleging the district illegally revised procedures for determining when a teacher will be found ineffective and violated the state's open records act by withholding a list of the names of teachers it considered to be ineffective. The controversy began last December when Huntsville City Schools Superintendent Dr. Casey Wardynski (who is no stranger to controversy) gave a presentation to principals entitled "Guidance for Dealing With Teachers Who Are Not Effective." During that presentation, Dr. Wardynski and the district's attorneys purportedly provided the principals with a list of the district's ineffective teachers. Both the Huntsville Education Assoc. and the state teachers' union requested the names, but the district allegedly refused the request. The HEA has asked the state court for a preliminary injunction allowing the HEA to see the new standards and list before the City Schools takes any action and for injunctive relief requiring the City Schools to turn over the materials under the open records law. The complaint is here.
Wednesday, April 27, 2016
Parents Allege Money Earmarked for School Integration Was Diverted to Charter Schools; Now They Want It Back
Plaintiffs in St. Louis, Missouri, have filed a very interesting challenge to recent charter funding practices. They allege that a local sales tax increase earmarked exclusively for desegregation remedies has been diverted to charter schools since 2006. The tax was originally passed in 1999 as part of a consent agreement in school desegregation case. The complaint alleges that the tax was properly spent from 1999 to 2006, but in 2006 it began being diverted to charter schools. The complaint is now asking that those funds be reclaimed for the traditional public schools and desegregation. As one might imagine, this is creating a huge division between families with students currently attending charters, as the remedy the plaintiffs seek would effectively bankrupt the charter system.
Whatever the merits of the complaint, it highlights another example of the ongoing tensions between creating new funding streams for charter schools at the same time that traditional public schools are being underfunded. For instance, Pennsylvania's newest charter funding scheme during the recession required local school districts, rather than the state, to reimburse charters, and the state set unreasonably high reimbursement rates. This nearly bankrupted Chester public schools and it caused Philadelphia schools to run significant deficits. In North Carolina, statutes allowed charter schools to tap into school districts rainy day funds. This meant that the money that districts saved for long term budget shortfalls could be spent immediately by charters. For more on the contrasting funding commitment to traditional public schools and charters, see here.
Monday, April 25, 2016
This year, the U.S. Department of Education's call for grant applications for the "Investing in Innovation Fund" returns the Department of Education to its roots and the original justifications for the federal role in education itself: school integration. Integration and diversity have been sidelined as a reform policy at the federal level for at least two decades, but in just a few short months, Secretary John King has put them squarely on the table. He recently asked Congress for new funding streams to promote education and, this week, has announced that applications that focus on "school diversity" will receive an "absolute priority" in this round of the Investing in Innovation Fund. Oh what a difference a new Secretary of Education makes, which cannot help but make wish for a rewind to the beginning of the Obama Administration and an alternate universe in which Linda Darling-Hammond had been name Secretary or John King got started earlier. Regardless, today is a good day for America's school children.
For those unfamiliar with the Investing in Innovate Fund, the "program is designed to generate and validate solutions to persistent educational challenges and to support the expansion of effective solutions to serve substantially larger numbers of students. The central design element of the i3 program is its multi-tier structure that links the amount of funding that an applicant may receive to the quality of the evidence 3 supporting the efficacy of the proposed project." The new statement on funding priorities state:
First, we include an absolute priority that asks applicants to focus their projects on student diversity. In parts of the country, America's schools are more segregated than they were in the late 1960s, including by students’ race and socioeconomic status. One-quarter of our nation’s public school students attend high-poverty schools where more than 75 percent of the student body is eligible for free and reduced-price lunch; in our cities, nearly half of all students attend schools where poverty is concentrated. In addition, almost half of all African-American and Latino public school students attend these economically segregated schools. Children raised in segregated communities have significantly lower social and economic mobility than children growing up in integrated communities, and States with socioeconomically segregated schools tend to have larger achievement gaps between students from low- and higher-income households. There is a growing body of evidence suggesting that socioeconomic diversity in schools can lead to improved outcomes for students from low-income households (compared to students from low-income households who attend higher-poverty schools). Moreover, research shows that students educated in diverse settings have shown a higher level of critical thinking and life skills.
Therefore, through the invitational priority, the Department invites projects with ambitious strategies that improve outcomes for high-need students by increasing racial and socioeconomic diversity in classroom or school settings. These projects could leverage approaches at the school, district, or regional level that encourage racial or socioeconomic diversity within classroom or school environments. Proposed strategies may range from new instructional approaches that impact socioeconomic integration and student achievement within schools (e.g., schools could improve participation of students from low-income households in advanced placement or “honors” coursework) or through redesigning district recruitment and admissions strategies to support and foster such diversity in schools. The Department seeks to invest in projects that focus concurrently on increasing diversity and school quality in areas where schools are acutely impacted by segregation while closing gaps in academic performance between socioeconomic and racial groups. The Department also encourages all applicants to carefully consider their evaluation design as the Department is keenly interested in developing a body of evidence on how classrooms, schools, and districts can better integrate their student bodies across racial and socioeconomic lines and produce outstanding outcomes for all students.
Let's hope states and districts respond with applications to take advantage.
Friday, April 22, 2016
A California appellate court held last month that school officials' search of a student's cellphone while investigating a firearm violation in the school was justified under the Fourth Amendment. In People v. Rafael C., a student was searched at school after officials found a gun and a magazine in a trash can. The student acted suspiciously near the principal's office, then failed to respond to a request to stop and speak with the assistant prinicipals. School officials detained the student, searched his pockets, and discovered a cell phone. An administrator searched through the phone and found text messages and photographs which he accessed on a computer and printed out. The photographs showed students holding the confiscated firearm found earlier at the school. Rafael C. was arrested and charged with weapons possession. In juvenile court proceedings, a judge denied Rafael's motion to suppress the photographs, finding that the search was a permissible administrative school search. The California Court of Appeals affirmed the juvenile court's denial of the motion to suppress. First, the court noted, the search was justified at its inception because Rafael allegedly was evasive and then turned combative while school officials were questioning him. This behavior gave school officials reasonable grounds for detaining the student and believing that he had violated school rules. The California appellate court relied instead on TLO v. New Jersey, which permits an exception to the warrant requirement when school officials had reasonable grounds to believe school rules have been broken. That exception is even more applicable when the search involves a firearm, a safety issue for the entire school. The appellate court held that the search also did not implicate Riley v. California (2014), in which the U.S. Supreme Court required a search warrant before officers could examine the contents of a cellphone during an arrest. The school search here was conducted before Riley was decided, and therefore school officials could not be "bound to a standard that did not yet exist." The appellate court thus affirmed Rafael C.'s delinquency adjudication, but modified the sentence. The case's slip opinion in People v. Rafael C., No. A143376 (Cal. App. Mar. 25, 2016) is here.
Thursday, April 21, 2016
DOE Reaches Settlement With OK City Public Schools To Address Disproportionate Discipline of Black Students
From the Department of Education website:
The U.S. Department of Education announced a settlement agreement today with the Oklahoma City Public Schools to address disproportionate discipline of black students. An earlier investigation by the Office for Civil Rights found significant overrepresentation of black students, notably in the 2014-15 school year when black students accounted for 42 percent of in-school suspensions although they represent only 26 percent of the population. Previous years showed similar disparities. The agreement seeks to correct Oklahoma City's discipline practices to ensure that the district satisfies its civil rights obligations to its students going forward.
In response to an internal audit of its discipline policies, the district took corrective steps, including reviewing of its discipline code, policies, and practices. The district also created the Office of School Climate and Student Discipline and hired a director of school climate and student discipline and three student behavior specialists. The agreement, in part:
- Designates an employee to serve as the district's discipline supervisor.
- Prohibits exclusionary discipline to the maximum extent possible.
- Requires the district to retain experts to advise the district on research-based strategies to prevent discrimination.
- Implements revised policies and practices.
- Requires training for staff and administrators and programs for students and parents to explain the policies and behavioral expectations.
- Requires the district to provide teachers and administrators with the tools and training to support positive student behavior to prevent and address misconduct.
- Requires school staff to employ a range of corrective measures before referring a student to disciplinary authorities.
- Ensures a system of supports at each school to assess students who display behavior problems.
- Addresses school climate issues.
- Implements measures to engage students, staff and parents in the implementation of the revised policies, practices and procedures.
- Requires a comprehensive review of the School Resource Officer program to assess the program's effectiveness and alignment with ensuring misbehavior is addressed in a manner that minimizes exclusionary discipline to the maximum extent possible.
- Facilitates communication with the parent complainant should she choose to reenroll her children.
The settlement agreement is here.
Can a New Student Loan Forgiveness Program Save the Teaching Profession and the Commitment to Public Education?
Congress is considering a bi-partisan bill to address the national teacher shortage. The bill would extend additional higher education loan forgiveness to teachers who stay in the classroom for a specified number of years. Currently, two different federal programs offer loan forgiveness to teachers. One requires 10 years of service and the other 5 years, but teachers cannot apply for both at the same time, so to take the full benefit, a teacher would need to work 15 years. Under the new bill, teachers could participate in both programs at once, taking full advantage of them and discharging their loans within 10 years.
The million dollar question is whether this change would have a serious effect on those who might consider entering the profession and whether it would improve the quality of teaching over the long-term. It surely will not hurt, but given the depth of the structural problems confronting our teaching workforce, this new program is likely to only tinkering around the edges. As I describe in my forthcoming article Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education,
Extreme teacher shortages swept the nation this past fall, revealing that the education crisis that began during the Great Recession is far from over. From 2008 to 2012, nearly every state in the country imposed budget cuts on education. Cuts of more than one-thousand dollars per-pupil in a single year were routine—the equivalent of a teacher aid in every classroom or the entire science and foreign language departments combined. Some states experienced massive cuts in multiple years. In North Carolina and Florida, per pupil funding fell from over $10,000 to the $7,000 range in just a few years. These funding cuts affected a wide array of educational services, but the most significant were regarding teachers. Lay-offs, pay cuts, and new high-stakes accountability systems dissuaded the next generation of talent from even pursuing a teaching career.
As states finally began to replenish their teaching ranks this past year, they found that teachers were in very short supply. At the same time that states were making cuts to traditional public education, they were enacting huge increases for charter schools and voucher programs. In many instances, districts struggled to hire even the most minimally qualified individuals. Just to ensure warm bodies in the classroom, districts resorted to desperate measures—billboard advertising; hiring substitutes and college interns on a full-time basis; and seeking district-wide exemptions from teacher-certification requirements. In some districts, these drastic measures were not enough to stop class cancelations and teaching overloads. The teaching demand in California, for instance, is forty percent higher than the supply of individuals seeking teaching credentials this year. Current projections indicate the shortage may get worse before it gets better.
As suggested in this quote, this shortage is also having a toxic interaction with the way public schools, charters, and vouchers have been funded over the past several years. While public school funding has dipped tremendously, charter school and voucher funding has doubled and quadrupled in many instances. More here.
 Motoko Rich, Across Country, A Scramble Is on to Find Teachers, N.Y. Times, Aug. 10, 2015, at A1.
 Noelle M. Ellerson, Am. Ass’n of Sch. Admins, A Cliff Hanger: How America’s Public Schools Continue to Feel the Impact of the Economic Downturn 8 (2010) (sixty-six percent of districts reported cuts to state and local revenues between 2008 and 2009 and eighty percent reported cuts between 2009 and 2010).
 Bruce D. Baker et al., Is School Funding Fair?: A National Report Card 12–13 t.2 (3d ed. 2014); Marguerite Roza, Breaking Down School Budgets, 9 Educ. Next (Summer 2009) (specifying programing costs in public schools).
 Bruce D. Baker et al., Is School Funding Fair? A National Report Card 8 (2015).
 Derek W. Black, The Constitutional Challenge to Teacher Tenure, 104 Cal. L. Rev. X (forthcoming 2016) (describing new teacher evaluation systems and changes to hiring, firing, and tenure policies); Exec. Office of the President, Investing in Our Future: Returning Teachers to the Classroom (2012) [hereinafter Investing in Our Future], (reporting a loss of 300,000 teachers); Marjorie A. Suckow & Roxann L. Purdue, Cal. Comm’n on Teacher Credentialing, Teacher Supply in California: A Report to the Legislature Annual Report 2013–2014 16 (2015) (finding a 55% drop in the number of persons pursuing and completing education degrees in California).
 See, e.g., Kristen A. Graham, Looking for a Few Thousand Substitute Teachers, The Inquirer Daily News, Sept. 1, 2015, http://articles.philly.com/2015-09-01/news/66074823_1_retired-teachers-subs-philadelphia-teachers; State of Cal. Comm. on Teacher Credentialing, District Intern Credentials 3 (2015) (permitting interns to teach after 120 hours of training or six credit hours of course work); Andrea Eger & Nour Habib, Crisis Hits Oklahoma Classrooms with Teacher Shortage, Quality Concerns, Tulsa World (Aug. 16, 2015) (in a month and a half, the Oklahoma Department of Education received 526 requests for teacher certification exemptions).
 Eger & Habib, supra note 6; Rebecca Klein, Kansas Underfunded Education and Cut Tenure. Now It Can’t Find Enough Teachers to Fill Classrooms, Huff. Post, July 31, 2015 (reporting school district started year with uncertified teachers and had to use substitutes).
 Rich, supra note 1 (state issued 15,000 teaching credentials, which was 6,500 short of the open teaching positions).
 See Title II Higher Education Act, Data Tools, https://title2.ed.gov/Public/DataTools/Tables.aspx (last visited Nov. 23, 2015) (finding a sharp drop in the number of students pursuing education degrees); Suckow &Purdue, supra note 5.
Wednesday, April 20, 2016
The California Court of Appeals today affirmed the dismissal of a complaint that the state's education finance system violated the state constitution's fundamental right to an education. In Campaign for Quality Education v. California, the plaintiffs argued that article IX of the California constitution required the state to adequately fund education and that the state should be compelled to do so under court supervision. The complaint, brought by a coalition of non-profit organizations and guardians ad litem, alleged that California’s education funding scheme "fail[ed] to ensure that all public school children have the opportunity to become educationally proficient according to current legislatively-mandated academic standards," and that the legislature ignored a constitutional duty to provide an education of "some quality" to public schoolchildren. The appellate court concluded that article IX's text did not impose a judicially enforceable duty to provide an education of “some quality” nor did it require the state to maintain a certain standard of educational quality expressly or implicitly. The court, citing similar litigation in Illinois, also deferred to the the legislature and the political process to resolve educational finance issues. The court also held that the constitution did not provide for a minimal level of education expenditures. A copy of the case is here.
Kristi Bowman and her Education Law Seminar students at Michigan State College of law are hosting a conference on Friday, April 22 titled “Education, Law, and Detroit.” The day-long event seeks to unpack the roots of the current crisis in public education in Detroit and to explore how legal reform can impact financial stability, governance, and achievement in Detroit’s public schools. Speakers include researchers from various disciplines, legislators, and members of the Detroit education community.
The full program is as follows:
Tuesday, April 19, 2016
The North Carolina Supreme Court has overturned a 2013 law that repealed teacher tenure, holding that the repeal violated the Contract Clause of the United States Constitution. For over forty years, North Carolina's teachers were tenured under the Career Status Law, which set the rules for employing, retaining, and firing of public school teachers. In 2013, North Carolina's General Assembly passed a law that revoked the Career Status Law, allowing school boards to decide not to renew a teacher’s contract for any reason except for a few reasons otherwise prohibited by state law. The North Carolina Association of Educators, Inc. and a handful of tenured teachers challenged the law, arguing that the law was a taking because it applied retroactively to previously tenured teachers and prospectively to probationary teachers who were already on track to tenured status. The state supreme court found that the Career Status Law was an implied term of the teachers' employment contracts upon which they relied in accepting lower pay for the anticipated benefits of job security. That security was removed by revoking the Career Status Law and replacing it with a new system that allowed local school boards and teachers to enter into annual term contracts. The court noted that the State's justification for the passing the law, to alleviate difficulties in dismissing ineffective teachers, was unsupported by any evidence that such a problem existed. The court concluded that the State could not show that it had a legitimate purpose, or that if it were legitimate, retroactively ending teacher tenure was nevertheless an unnecessary and unreasonable step to achieve that purpose. The case, North Carolina Association of Educators, Inc. (NCAE) v. North Carolina, No. 228A15 (N.C. April 15, 2016), is available here.
Gavin Grimm Secures Monumental Victory for LGBTQ Community for Equal Access to Bathrooms and Facilities
Gavin Grimm just secured an enormous victory for himself, and the entire LGBTQ community, in his fight to gain equal access to the restrooms and other facilities at his public school in Gloucester, Virginia. After losing before his school board and a federal district court, he has now won in the Fourth Circuit Court of Appeals. For those who do not follow this blog or the issue in general, equal access to facilities for transgender students has been a topic of hot debate at the local and state level across the country. See here and here. Regardless, this was a case of first impression and reached a result that emphatically secures rights for students in the southeast and mid-Atlantic states, and will likely have an impact on other circuits as they take up similar cases.
For the non-lawyers looking for clear answers, the opinion in G.G. v. Gloucestor Country may appear confusing, as it includes some technical procedural and analytical issues. I offer this simplified explanation of the case. First, Title IX, a federal statute, prohibits discrimination based on sex in schools. Second, Title IX does not specifically address gender identity, but the U.S. Department of Education has interpreted the statute to transgender individuals: “When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity.” Thus, the key issues in the case were whether the meaning of "sex" in the statute was ambiguous and, if so, whether the Department's interpretation of the term was reasonable.
In a 2-1 decision, the Fourth Circuit held that while "sex" clearly refers to males and females, how Congress intended that term to apply to intersex or transgender students is not clear. When confronted with such an ambiguity, a court should defer to an agency's reasonable interpretation. Thus, that is exactly what the Fourth Circuit did, ruling in favor of Gavin Grimm. The case is now on its way back to the district court, which must now apply the correct standard and determine what remedy to afford Mr. Grimm.
For those legal scholars looking for more, the full opinion is here. Or see below for the most pertinent discussion by the court: