Wednesday, June 15, 2016
Over the past few years, Pennsylvania schools have experienced what may have been the biggest financial crisis of our lifetime. For those who follow this blog, the schools went almost the entirety of this past school year without a budget. As a result, some closed earlier for the winter break, opened late, eliminated programs, asked teachers to work without paychecks, and a parade of other horribles. Just weeks ago, the Erie School District indicated it might permanently close the doors of its schools, presumably dissolving itself and waiting to be absorbed by another district.
After more than a year of wrangling, the state has finally adopted a new school funding formula that will purportedly address the problems of high need districts. On its face, the formula almost sounds too good to be true. The formula has a heavy weighting system that accounts for poverty, student disabilities, and English Language Learner needs, among other factors. Schools are funded on a per pupil basis and these weightings allow districts to, in effect, double, triple, and quadruple-count some students for purposes of funding. According to Newsworks, this means, for instance, that while York's actual enrollment is 7,737, the "final enrollment figure used to decide how to divide money is adjusted up to 52,449." See here for an interactive map that provides the actual and adjusted enrollment for all the state's districts.
But there is one enormous catch. Newsworks indicates that the money that flows through this new formula "reflect[s] only a tiny fraction of the state's entire basic education subsidy. Lawmakers plan to use the formula to disperse only new increases in aid – which, in the near term, will barely affect the disparities that were created through decades of non-formula-based distributions, when not even shifts in enrollment were tracked. This year, of a $5.6 billion budget, the general assembly sent about $152 million through the formula — under 3 percent."
This surely made the formula palatable to those wealthy districts that benefit from old system, but the state is setting itself up to create an overall funding scheme that is entirely irrational. The federal funding formulas for low income students illustrate this point the best. As it currently stands, there are four separate and complex funding formulas at the federal level, along with a host of other grant programs. Each time Congress came up with a potentially better formula, it added it to the other formulas, rather than replacing older flawed formulas. As demonstrated here, the problem is that these four formulas now counteract one another in myriad ways and the result is an overall funding stream that produces random and irrational results. No relevant constituency is consistent advantaged or disadvantaged.
If Pennsylvania, like Congress, does nothing more than add a good formula on top of other dominant flawed formulas, it is wasting everyone's time and doing nothing to solve the underlying problem. If Pennsylvania plans to phase out the old formulas in future years and drive the lion's share of money through the new formula, it may have come up with something that actually helps students who need it. Unfortunately, Pennsylvania does not have a good enough track record to hold out too much hope on the latter.
Tuesday, June 14, 2016
Federal Court Refuses to Expand School Voucher Program That Was Declared Unconstitutional By Colorado Supreme Court A Year Ago
Almost a year after the Colorado Supreme Court declared that a district's school voucher program violated the state constitution's separation of church and state doctrine (which Derek discussed here), a federal district court in Colorado denied a renewed attempt last week to force the Douglas County (CO) School District School Choice Grant Program to include religious schools, according to the Denver Post. The federal court questioned whether the plaintiffs, represented by the religious-freedom organization Institute for Justice, were in a truly adversarial position with the defendant, the Douglas County School District. The federal court also questioned whether the plaintiffs could show a likelihood of success to warrant an emergency injunction. The court also stated that the Douglas County families seeking the voucher expansion could not show irreparable harm because only a few students had even shown interest in the program and no schools have yet agreed to participate in the School Choice Grant Program. The ACLU of Colorado and law firm Arnold & Porter have moved to intervene in the case, arguing that the plaintiffs’ motion for preliminary injunction is essentially a collateral attack on the Colorado Supreme Court's judgment.
Two weeks ago, the Kansas Supreme Court struck down the state's school funding scheme again. The Supreme Court also upped the stakes in the long running battle to get a recalcitrant state legislature and governor to comply with the constitutional obligation regarding education: it set a June 30 deadline for action. If the state does not act, the Court indicated it would, in effect, shut down schools. As discussed here, Kansas is one of just two courts that have stood strong against education funding cuts over the past eight years. If Kansas (or Washington) fails, there may be little hope elsewhere. Courts cannot win these battles by cowering away from them. In fact, cowering only undermines courts over the long term. Yet, standing strong comes with its own risk: that states will just ignore courts all together.
For now, at least, the Kansas Supreme Court's willingness to stand its ground is finally paying off. Governor Brownback has called a special session of the legislature to implement a solution and the grandstanding appears to be largely over. The Wichita Eagle reports,
“They’re basically saying $38 million more and you’re set,” Brownback said, referring to the amount it would cost to restore the state’s old formula for equitable funding. Lawmakers discarded that formula when they adopted a block grant form of funding last year.
Brownback signed the proclamation for a special legislative session – the 23rd in the state’s history – on Wednesday afternoon. He noted he does not have the power to tell lawmakers what to do – he can only call them back for a special session.
As the primary ringleader for defunding schools, Brownback cannot entirely concede and still save face. For instance, he said, “What I find so irritable about this is that the remedy that the court is putting in place, which is to shut the schools down over a $38 million dispute … just seems so completely out of bounds.” But what I find in this and the above statements is a resignation to the fact that the time has come to fund schools, whether he likes it or not. Some rank and file members are predictably grumbling about defying the courts and another is suggesting a constitutional amendment. An amendment is the one legitimate means to avoid funding schools, but at this point, neither an amendment nor outright defiance seems likely. Of course, anything could or could not happen between now and June 30, but my initial read is that Kansas's Supreme Court has run a very dangerous gauntlet to preserve the constitutional right to education in Kansas and lend support to the continued movement in other states. For more on the overall stakes in this battle, see here.
Monday, June 13, 2016
Manhattan U.S. Attorney Sues NYC Department of Education For Discrimination At Pan American Int'l High School
In an unusual action, the Manhattan U.S. Attorney's Office has sued the New York City Department of Education under Title VII for allegedly permitting a high school superintendent and principal to discriminate against the three black teachers employed at Pan American International High School and retaliate against an assistant principal who spoke out against the discrimination. The Manhattan U.S. Attorney's Office has rarely, if ever, brought a race discrimination claim against a school district in recent years. In the office's press release in Flanagan v. N.Y.C. Dep’t of Educ. et al., No. 13 Civ. 8456, U.S. Attorney Preet Bharara said: “It is nearly unthinkable that, in this day and age, one of the largest and most diverse school districts in the United States would allow racial discrimination and retaliation to flourish." Cribbed from the U.S. Attorney's press release: The Government alleges that during the 2012-2013 school year, the New York City DOE permitted Pan American Principal Minerva Zanca and Superintendent Juan Mendez to make derogatory racial comments about the school's only black teachers, such as saying that one teacher “looked like a gorilla in a sweater,” commented about one's “big lips quivering” during a meeting, and and that Zanca stated that she had difficulty suppressing her amusement at another teacher who reminded her of a Tropicana commercial where a black man “with those same lips” danced down a supermarket aisle. Several of these comments were made to or in the presence of the school's assistant principal, Anthony Riccardo. Zanca later accused Riccardo of “sabotaging her plan” when he refused to give one of the black teachers an unsatisfactory rating for a lesson that he had not yet seen. In response, Zanca called school security to have Riccardo removed from the premises. The Riccardo incident is part of the DOJ's retaliation grounds. The complaint in Flanagan v. N.Y.C. Dep’t of Educ. et al., No. 13 Civ. 8456 (filed 6/9/2016) may be viewed here.
Ann Mallet Killenbeck (Arkansas)'s article on Fisher II, Ferguson, Fisher, and the Future: Diversity and Inclusion As A Remedy for Implicit Racial Bias, 42 J.C. & U.L. 59, 60-63 (2016), posits that the Supreme Court will use Fisher II to guide higher ed institutions' racial diversity policies. Below is an excerpt from Prof. Killenbeck's introduction:
My thoughts on Fisher II in this Article will be somewhat unusual. My threshold assumption is that the Court will use the case to reaffirm Grutter and clarify what is required when a college or university decides to adopt an affirmative admissions policy as a means of attaining student body diversity. As I will explain, the decision to grant review was both logical and necessary. It is actually a welcome opportunity for the Court to give badly needed guidance to both sides in this debate about how best to go about implementing those policies. Indeed, I believe that for those who wish to preserve the diversity victory in Grutter, the best possible outcome will be to have their implementation feet held to the fire of intense judicial scrutiny in Fisher II. That said, there are substantial perils in this process given the lackadaisical manner in which virtually all institutions have approached their actual educational obligations once they have taken the steps required to admit a diverse group of students.
I will also argue that this new round of litigation offers an important opportunity for affirmative action's proponents to do two interrelated things. The first is to recognize, account for, and undertake key obligations imposed by Grutter and Fisher I. The second is to seize the opportunities presented in the wake of Fisher II to strengthen their case for the value of diversity as a matter of educational policy by focusing our attention on implicit racial bias. The virtues of educational diversity identified by Justice Sandra Day O'Connor in her opinion for the Court in Grutter had solid social science foundations. The evidence cited by the Court at that time did not, however, account for an important aspect of our national malaise, the corrosive impact of implicit racial bias and stereotyping. Significant developments in this body of knowledge have the potential to bolster the Court's prior determination that diversity's “benefits are not theoretical but real.” This knowledge can, and should, be part of the dialogue as we reexamine these issues.
Susan DeJarnatt, Kerrin C. Wolf, and Mary Kate Kalinich have posted their new paper, Charting School Discipline, on ssrn. It focuses on discipline in charter schools and their potentially distinct approaches. As recent civil rights complaints in New Orleans and due process litigation in California have shown, charter school discipline is of growing importance to the overall conversation regarding necessary reforms to school discipline. DeJarnatt and her colleagues offers this abstract:
Exclusionary school discipline can steer students away from educational opportunities and towards the juvenile and criminal justice systems. As many public school systems have turned to exclusionary school discipline practices over the past two decades, they have also increasingly adopted charter schools as alternatives to traditional public schools. This research is examines the student codes of conduct for the charter schools in the School District of Philadelphia to consider the role of their disciplinary practices and the potential effects on charter students.
We analyzed every disciplinary code provided to the Philadelphia School District by charter schools within Philadelphia during the 2014-2015 school year. Our goal was to examine the provisions relating to detention, suspension, and expulsion, along with other disciplinary responses, to determine what conduct can result in disciplinary consequences, what responses are available for various types of misbehavior, and whether the code language is clear or ambiguous or even accessible to students or potential students and their parents or caregivers. We conclude that too many of the codes are not well drafted, and too many follow models of punitive discipline that can be used to push out non-compliant or challenging students. Some codes grant almost complete discretion to school administrators to impose punitive discipline for any behavior the administrator deems problematic.
We hope that this work will spur future research on implementation of charter school discipline policies to illustrate how charter schools are using their codes. Further, we hope to see the charter sector develop model disciplinary codes that move away from a zero tolerance punitive model towards disciplinary systems based on restorative principles.
Wednesday, June 8, 2016
New Civil Rights Data Shows Just How Misguided Attack on Tenure Is; Teacher Quality Problems Run Much Deeper
The Office for Civil Rights' new data collection shows vast disparities in regard to teachers. Racial minorities were twice as likely to attend schools where one out of five teachers were brand new. Racial minorities were also more likely to attend schools with unlicensed teachers. Race aside, about 800,000 student attended a school where one out of five teachers lacked the required state licence.
Teacher quality is inherently a difficult thing to measure with blunt qualification metrics, but studies have show that some blunt measures matter. First, there is a learning curve to teaching. While quality may flatten after about five years of teaching, teachers do tend to improve during the first five years or so. Second, while "certified" teacher encompasses a broad range of teachers and teaching quality, uncertified is a relatively narrow group who have yet to demonstrate the basic requirements to enter a classroom. As a result, studies do show that uncertified teachers have a negative impact on student achievement.
Interestingly, none of these teacher inequalities have anything to do with tenure. As very rough measures, they tend to show just how wrong-headed the legal challenges to tenure are. These numbers show that if ever teacher in the country lost tenure tomorrow and we fired everyone of them on Monday, there are not enough certified teachers to fill our nation's classrooms. Moreover, this problem is most acute in predominantly minority schools. Tenure may randomly operate as a burden or disincentive to removing some teachers, but it is not a significant cause of low quality teaching. For a host of other flaws in the challenges to tenure, see here.
Tuesday, May 31, 2016
Kansas Supreme Strikes Down State's Funding Scheme Again, Setting Important Example for Others to Follow
Back in February, the Kansas Supreme Court ordered the state to remedy its unconstitutional financing system (for the umpteenth time). The state passed responsive legislation, but last week,the Kansas Supreme Court struck it down as well. For those who have not followed the school finance battles in Kansas, this is not the story of a runaway court, but a runaway legislature that has refused to recognize the authority of the court. The earliest of the Kansas Supreme Court's decisions were mild by most accounts. But rather than comply, the legislature has ignored its duty to provide its students with equal educational opportunities. It has even gone so far as to threaten the funding and appointment process of the judiciary itself.
The Kansas Supreme Court, however, has not flinched from its responsibility to adjudicate facts and apply the law. In this respect, the Kansas Supreme Court is becoming an outlier in school funding and quality cases. As detailed here, courts have increasingly shied away from enforcing the constitution and confronting legislatures since the recession. Even once those tax revenues rebounded, the trend continued. For instance, two weeks ago, the Texas Supreme Court overruled a trial court's order in support of low wealth districts, in litigation that has spanned for decades and almost uniformly supported the position of more equity and adequacy. The less than compelling reasoning in the Texas Supreme Court's new opinion suggests the court is setting a new and troubling course.
This is what makes the Kansas Supreme Court's opinions last week and earlier this year so important. They (along with recent opinions from Washington state) may represent the best and last hopes from separation of powers between the legislature and courts, the enforceability of the constitutional right to education, and the rule of law. If the rule of law cannot prevail in Kansas, it likely only spells more bad news for schools in other states.
As I argue in Averting Educational Crisis, there is nothing easy about forcing the state to comply with its duty to deliver equal and adequate education. That difficult job grows exponentially harder during times of economic crisis, so hard that it is nearly impossible at times. That job, however, does not become any easier by running from it. To the contrary, the more courts look the other way, the more they look like political actors and loose the institutional authority and respect necessary to have states concede to the rule of law. In other words, when courts refuse to enforce the constitution today, they jeopardize it for years to come.
The Kansas Supreme Court clearly has a sense of what it is fight for. It wrote:
The political necessities of the legislature are similarly irrelevant to our review. The constitution of the people of Kansas does not change its requirements based on legislators' support, or nonsupport, of proposed legislation. Rather, the Kansas Constitution "is the supreme and paramount law, receiving its force from the express will of the people." Just as the legislature has the power and duty to create a school funding system that complies with Article 6, it is this court's power and duty to determine whether an act of the legislature is invalid under that constitution, i.e., if the legislature has met its duty. A law's political expediency or level of support will not shield it from such review. After considering all of the arguments, we conclude the State has failed to meet its burden on this issue in the remedial phase of this case. Specifically, the hold harmless provision fails to sufficiently mitigate the increased inequities created by applying the capital outlay aid formula to the LOB funding system. At best, H.B. 2655 does no more than take away funds from the districts, then give the funds back, simply to restore the same level of inequity we ruled unconstitutional in Gannon II, 303 Kan. at 720. Additionally, it worsens disparity in accessing LOB funds among aid-qualifying districts.
Get the full opinion here.
Thursday, May 26, 2016
According to the complaint in Morgan v. Lexington, R.M., a middle school student in Lexington, Massachusetts, was physically and mentally bullied at school. The first time he and his mother notified his principal, the principal said that R.M. had “delayed the investigation” and, as a result, would not be allowed to participate in an upcoming track meet. After that, the bullying and assaults continued. The bullying was apparently pretty serious and included being shoved into a locker, having his pants pulled down in front of other students, suffering punches in the head and stomach. When he notified the assistant principal, he was told to stay away from the harassing students. His mother then raised the issue, but before the school’s investigation ended, R.M. became too scared to return to school. After missing several days of school, the principal, per state law, asked the police to go to R.M.’s house on two separate occasions.
At the conclusion of the investigation, the assistant principal reported to R.M. and his mother that students had admitted to some of the harassment, but the principal purported indicated that none of the students involved would be disciplined. R.M. decided to enroll in a private school for the remainder of the school year. R.M., however, returned to the public school next year and the harassment continued. Due to the harassment and anxiety, R.M. missed 112 days of school.
The lawsuit against the district alleged that the defendants deprived R.M. of a “protected liberty interest in bodily integrity, specifically, the right to be free from the abuse and injuries” under the Fourteenth Amendment. The court rejected the claim, concluding that Morgan did not present enough facts to establish that the defendants’ actions and/or inaction caused R.M. to be bullied by the other students or increased the risk to him. Moreover, it added, the First Circuit has never accepted such theory in the context of bullying.
Likely recognizing this problem, plaintiff sought to amend the complaint to raise a Title IX claim, which, of course, does provide a cause of action sex and gender based harassment. The trial court, however, denied plaintiff’s motion to amend, reasoning that the complaint does not allege any sex- or gender-based animus by any of the students, and none can be inferred from the circumstances outlined in the complaint. Plaintiff argued that in some cases one could "use a substantial amount of arguably gender-neutral harassment to bolster a smaller amount of gender-based conduct," but the district court found that there was insufficient evidence to do so. Rather, the conduct at issue involved undifferentiated bullying. The Court of Appeals affirmed on all counts.
This case offers a sad reminder of the large gaps in the law regarding bullying. Gender, race, and disability based bullying are prohibited because they are deemed discrimination, but other bullying, even when serious, is outside the scope of civil rights protections because it does not involve discrimination.
Wednesday, May 25, 2016
New Jersey's Failure to Assess Effects of Charter School Expansion on Already Underresourced Newark Schools Moves to Court of Appeals
This from the Education Law Center:
Acting on behalf of Newark school children, Education Law Center has filed an appeal of NJ Commissioner of Education David Hespe’s February 2016 approval of a massive enrollment increase in seven Newark charter schools over the next five years.
At issue in the appeal is the data and research evidence presented by ELC to the Commissioner demonstrating that expanding charter enrollments at this time would exacerbate the budget crisis in the State-operated Newark public schools (NPS) and trigger even deeper cuts to teachers, support staff and programs in already under-resourced NPS schools. ELC also presented evidence to show that expanding charters would further concentrate at-risk students in district schools, especially students with disabilities and English language learners (ELLs). These students require additional programs and interventions that have been reduced and cut in NPS schools over the last several years.
“This appeal is not about the merits of charter schools or district schools, but rather about the State’s overarching obligation to ensure a thorough and efficient education for all public school students in Newark,” said David G. Sciarra, ELC Executive Director. “This appeal raises the abject failure of the Commissioner to perform his mandated constitutional duty to make certain that before charter schools can expand, all Newark children have the resources they need to succeed in school, whether they attend a district or charter school.”
“The Commissioner simply ignored the overwhelming evidence in the record that a further increase in charter enrollment at this time will harm children and schools throughout the city,” Mr. Sciarra added.
In their applications for renewal, seven Newark charter schools submitted requests to Commissioner Hespe that, taken together, would greatly increase overall charter enrollments over the next five years. The Commissioner approved these requests without explanation and without providing reasons. The approved charter increase totals nearly 9,000 additional students over five years, from just under 10,000 to almost 19,000 students.
Several of the charters sought substantial increases. For example, Team charter school, operated by the New York-based KIPP network, secured the green light to increase enrollment from 3196 to almost 8000 students and to add up to six new charter schools. The Commissioner’s approvals will almost double the current enrollment in these seven charters by the 2020-21 school year.
The approved expansion will also increase the seven charters’ share of Newark’s total charter population from 20% to approximately 37%. If enrollment in the district and in the fourteen other charters remains stable, the Commissioner’s decision will mean that by 2020-21, nearly half of all Newark’s school children will be enrolled in the charter sector.
Before the Commissioner, ELC submitted extensive comments on the charters’ requests for expansion, including detailed research documenting how the State’s decision to rapidly expand charter enrollments from 2009 through 2015 has put the NPS budget in crisis. The data shows charter enrollments nearly tripled to 12,885 students during that period, while the percentage of students with disabilities and English language learners (ELLs) in NPS schools increased significantly.
Further, while the NPS budget has been flat since 2011 as a result of the State’s failure to fund New Jersey’s school funding formula, payments from the budget to charter schools have risen dramatically to $225 million, representing 27% of the total NPS budget. ELC also documented that the combination of flat budgets and rising charter payments has triggered severe reductions in spending on regular classroom instruction, guidance and other support services, and special education and bilingual education in NPS schools.
The NJ Supreme Court, in several rulings, has imposed upon the Commissioner an affirmative constitutional obligation to carefully evaluate the impact that opening or expanding charter schools will have on the loss of funding and the segregation of students in districts served by the charters.
“The Commissioner must meet his constitutional obligation to assess and determine the impact that the loss of funding from increased charter payments will have on the ability of the Newark district to provide a thorough and efficient education to all public school children,” said Michael Stein of Pashman Stein in Hackensack, the firm representing ELC on this appeal. “The Commissioner did not evaluate the impact of charter expansion on the NPS budget, even though ELC presented a compelling record that the expansion would mean less funding, more cuts to essential staff and programs, and the further concentration of students based on disability and English language proficiency in NPS schools.”
Public Advocates has released a new study analyzing the reporting practices of school districts in California. The report suggests a potential mismanagement or misuse of school funds intended to provide supplemental resources for high-need students. State law defines high-need students as those who come from low-income families, are English language learners, or in foster care. It requires that schools receiving supplemental funds for high-need student to use the funds to provide new or improved educational services. This report, interestingly, focuses on districts whose overall student population is not necessarily predominantly high-need. These districts are required to disclose how they spend states funds. An executive summary of the finding includes:
- Districts are not properly justifying their use of supplemental and concentration funds as principally directed and effective to serve the high-need students who generate those dollars.
- Many districts fail to clearly explain how they are meeting their obligations to increase and improve services for high-need students in proportion to the additional funds these students generate.
- Some districts appear to significantly underspend supplemental and concentration dollars compared to their LCAP plans without explanation and appear to fail to carry over that obligation to subsequent years.
- LCAPS generally fail to capture how supplemental and concentration dollars are being spent at school sites.
- Charter schools appear to be spending supplemental and/or concentration funds without any oversight whatsoever.
Roxanne Hoegger Alexander, report co-author and volunteer attorney with Public Advocates, further explains: “We have an example of Orange Unified, a district that spends 79% of its supplemental funds districtwide. In this district, one school with only 11% of high-need students appears to be benefitting similarly to a school across town with 96% high-need students. This isn’t what the law intended. Districts need to show that spreading the funds across the entire district is the most effective way to increase or improve services for high-need students but they aren’t doing it.”
Public Advocates is urging the state to pay closer attention to how non-concentrated districts budget and spend its supplemental funds – this is of particular importance with the upcoming Local Control Accountability Plans update. In particular, the report recommends:
- For “local control” to work, the state must invest in building the capacity of school districts and stakeholders to effectively garner community input into resource allocation and the cycle of continuous improvement reflection, including by offering more resources and guidance.
- The State Board of Education should issue guidance to County Offices of Education and Local Educational Agencies that will facilitate fiscal transparency and local accountability by clarifying, among other things, that an LCAP is not acceptable under the Local Control Funding Formula (LCFF) if it does not capture all the district’s actions and expenditures for all students on the eight state priorities and thus reflect nearly all LCFF funds the district receives.
- The State Board of Education and County Offices of Education must take measures to ensure that districts and charters are properly justifying and accounting for the extra dollars they receive to increase and improve services for high-need students.
- The State Board of Education should adopt common sense revisions to the LCAP Template that clarify the obligations of districts and charters while improving the accessibility and transparency of information for community stakeholders.
Tuesday, May 24, 2016
A new lawsuit against against a school district just outside Cincinnati, Ohio, raises several interesting factual and legal claims. Unfortunately, they are bound up in incredible tragedy. According to the complaint, Emilie Olsen, a middle school student, committed suicide following an extended period of regular and egregious harassment and bullying. The introduction to the complaint states:
Emilie, an Asian-American, was continually bullied, harassed, assaulted, battered, and discriminated against in school, and further bullied and harassed online, because of her race, national origin, and gender, as well as her association with Caucasian students, and her perceived sexual orientation and practices. Emilie and her parents tried to end the bullying and repeatedly pleaded with certain Defendants for help. Defendants failed to stop the bullying, and it continued. Consequently, Emilie suffered severe anguish, distress, and depression, and ultimately committed suicide. Sadly, Emilie’s case was not an outlier; other Fairfield students also suffered unrelenting bullying and discrimination, and two of those students attempted suicide months before Emilie’s death. Certain of the Defendants, likewise, failed to intervene on behalf of these students. This action seeks damages and seeks to reform the Fairfield City Public Schools’ policies and practices for responding to bullying, harassment, assault, battery, and discrimination.
The complaint frames these facts as violations of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments, Substantive Due Process, and Equal Protection. It also raises Section 1983 claims, alleging a pattern and practice of violating these aforementioned rights, along with a host of state law claims.
The first issue that jumps out at me is one of mixed motive. The complaint details a long list of incidents, statements, and altercations, some of which relate to sex, some of which relate to sexual orientation, and some of which relate to race and ethnicity. Some incidents do not facially fit into any category of discrimination and could be either general bullying or circumstantially related to the aforementioned discrimination. General bullying would not violate any federal statutory protection, although it might fall into a substantive due process claim if sufficiently egregious and ignored.
Bullying need not, of course, fit into any single prohibited category to be actionable, but it does need to fit in some category. The "cleanest" cases are those where the bullying is strictly about race or gender, as the fact finder does not need to work as hard to discern a prohibited motivation or form of discrimination. This makes the narrative of discrimination easier to build. In the instant case, race and ethnicity seems to be a dominant aspect of the harassment, but sex and potentially sexual orientation seem to play a significant role as well. The court, however, will either need to sort these types of discrimination out or recognize the inter-sectional nature that discrimination often takes but which courts sometimes fail to appreciate. Here, it may very well be the case that this student's gender, sexual orientation, race and ethnicity all intersected to create a particularly virulent form of discrimination. Life, quite simply, does not always fit easily into the neat boxes the law would proscribe.
Second, this case raises the same issues always at play in harassment cases: what exactly did the district know and, if they knew something, did they do enough to address it. Title VI and Title IX law is pretty permissive on both questions. Teacher knowledge is not enough. Agents of the school (principals, administrators, etc) must have knowledge of the harassment that amounts to prohibited discrimination and fail to reasonably respond. Failing to respond means more than just failing to stop the discrimination. Here the district, according to the complaint, was repeatedly put on notice on numerous occasions of what occurred. The parents, however, seem to have been kept in the dark about a lot of things, including incidents that the district may have learned of itself and the district did or did not take to address them. For the most part, the complaint alleges that the district did nothing to respond, which very well may be true, but one could fairly assume the district will point to a number of things it did, in fact, do. The determinative question will be whether whatever the district did was enough.
The lawsuit, interestingly, goes beyond these basic notice and response questions of statutory claims, raising constitutional claims that potentially require a broader inquiry into whether the district actively put the student in danger or harbored some impermissible biases or neglect of its own. I will, however, reserve that discussion for later.
Friday, May 20, 2016
The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity by Ogletree and Robinson
Charle s J. Ogletree , Jr. and Kimberly Jenkins Robinson's edited work, The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, is now available at an additional discount. Get the promo rate and code here: Download Enduring Legacy of Rodriguez 2016 Sales Flyer. The promotional materials offer this description:
In this ambitious volume, leading legal and educational scholars examine San Antonio Independent School District v. Rodriguez (1973), the landmark US Supreme Court decision that held that the Constitution does not guarantee equality of educational opportunity. Charles J. Ogletree, Jr., and Kimberly Jenkins Robinson have brought together a host of experts in their field to examine the road that led up to the Rodriguez decision, assess the successes and failures of the reforms that followed in its wake, and lay out an array of creative strategies for addressing the ongoing inequality of resources and socioeconomic segregation that perpetuate the inequity of opportunity in education. Successive waves of school reform efforts have failed to counteract the pernicious effects of inequality on student learning and achievement. The widely perceived exhaustion of these conventional approaches has led to a renewed interest in the Rodriguez decision and its impact on efforts to improve educational opportunity and outcomes for all students. A timely volume, The Enduring Legacy of Rodriguez makes a comprehensive statement that will inform research and reform for the next generation of scholars, educators, lawyers, and policy makers.
They also offered followup commentary to the book at edweek earlier this week.
Wednesday, a divided Wisconsin Supreme Court held that the 2011 Act 21, which allowed Governor Scott Walker and Secretary of Administration to permanently halt administrative rulemaking, was unconstitutional as it related to the Superintendent of Public Instruction (SPI) as well as the Department of Public Instruction (DPI). The Wisconsin Constitution grants the SPI power to supervise public instruction, stating “the supervision of public instruction shall be vested in a state superintended” as well as in “other officers of the supervision of public instruction.” The question for the court was, “even if rulemaking is a supervisory power, [can] the Legislature . . . divide that among ‘any officers’ it chooses”?
Relying on the constitution’s language, its amendments, debates, and legislation over time, the court found that “the ‘other officers’ in whom the legislature may vest the supervision of public instruction must be other officers of supervision of public instruction.” Thus, “the Legislature may not delegate to the Governor or the Secretary of Administration the power to ‘oversee, inspect, or superintend’ public instruction.” The Governor argued that Act 21 did not delegate these powers to him because he cannot make laws, but the court disagreed. The court determined that "[w]hile Act 21 does not give the Governor the power to promulgate rules regarding public instruction, it gives the Governor the power 'in his or her discretion' to decide, 'that there will be no rule on a given subject irrespective of the judgment of the SPI.'" Thus, “the Act doesn’t allow the SPI and DPI to proceed with their duties of supervision without the Governor’s, and in some circumstances the Secretary of Administration’s approval, Act 21 unconstitutionally vests the Governor and Secretary of Administration with the supervision of public instruction, violating Article X §1.” Get the full opinion here.
Credit the Wisconsin Supreme Court for hewing closing to the constitutional structure for managing education. This opinion resembles the Washington Supreme Court case from last year striking down the state's charter school law. Both cases are based on the fact that some state constitutions vest particular powers and responsibilities in particular executive bodies or agencies. When the constitution creates such a structure, the legislature is not free to play with it as it sees fit. Unfortunately, theses cases stand in contrast to the spate of supreme court cases finding that state legislatures can play with education funding as they see fit, effectively robbing public education of its constitutional status as the state's primary obligation. More on that point here.
Thursday, May 19, 2016
New Study Connects the Dots Between School Funding Choices and Student Achievement, Highlighting the Dangers of Retrenchment in Courts
The Educational Testing Service (ETS) released a new study by Bruce D. Baker, Danielle Farrie, and David G. Sciarra, analyzing the connections between improving school finance systems,improving educational outcomes and closing achievement gaps. After working through multiple factors and layers of data, the report zeroes in on the effects of school funding on pupil-teacher ratios and salaries. It them shows how those two factors relate to the achievement gap between low and middle-income students. The findings are rather impressive:
- These higher spending levels translate into higher statewide staffing levels—more teaching staff per pupil.
- These higher spending levels translate into more competitive statewide teacher wages.
- Increased targeted staffing to higher poverty schools within states is associated both with higher measured outcomes of children from low-income families and with smaller achievement gaps between children from low-income and children from non-low-income families.
More specifically, they "show that the level and distribution of pupil-to-teacher ratios are highly and consistently sensitive, both across states and over time, to changes to the level and distribution of school district current spending; that is, more spending, holding other factors constant, drives lower pupil-to-teacher ratios, and fairer spending across districts within states drives fairer pupil-to-teacher ratios. Spending also drives the competitiveness of teacher wages. States with higher spending have more competitive wages, all else being equal. And as one might expect, available spending and the equity of that spending remain contingent on the revenues that support that spending. Increased state support provides the opportunity for improved equity of current spending, whereas the stability of both state and local revenues dictates the overall level of spending."
The point about sensitivity to change "over time" is key to appreciating the significance of the deep cuts in education funding since the recession and the failure to replenish those funds even once state tax revenues rebounded. As I argue in a recent article, courts would normally serve as the check against states' wholesale abandonment of their constitutional duty to deliver equal and adequate educational opportunities. Unfortunately, as the Texas Supreme Court decision from last week shows, courts are increasingly shying away from their duty. As they do so, they place the very right to education in jeopardy both in the short and long term--the effects of which will be far worse than the legislative stand-offs that courts are seeking to avoid now. A full discussion of this new trend is available here.
Wednesday, May 18, 2016
Florida School Board Sued For Allegedly Funneling Recent Immigrant Students To Non-Credit, Fee-Based Program
The Southern Poverty Law Center filed suit yesterday in the Middle District of Florida challenging a policy of the Collier County, Florida School Board for allegedly steering English language learner (ELL) students off-site for adult English-only instruction. The named plaintiffs are two Guatemalan teens who were denied admission to high school in the Collier County district and instead referred an off-site, non-credit, adult, English language-only class at a local technical college. At issue is Collier County's age policy, which denies high school admission to students who are 17 years old or older who cannot meet graduation credit requirements by the end of the school year of their 19th birthday. The lawsuit alleges that despite federal and state civil rights laws and the federal and state mandates to teach and bring ELL students to grade level, the Collier County Board's policy acts to deny admission to recent immigrant students who lack English proficiency. The suit's allegations highlight potential barriers faced by immigrant children who seek to enroll in U.S. schools. A recent report by the Georgetown Law Human Rights Institute, Ensuring Every Undocumented Student Succeeds: A Report on Access to Public Education for Undocumented Children, cited similar examples of schools' discouraging "enrollment of undocumented students due to ancillary considerations, such as testing, grade placement, and prospects of graduation." A copy of the SPLC lawsuit can be found here.
New Federal Study Finds Increase in School Segregation and Recommends More Aggressively Federal Action
Yesterday, on the 62nd anniversary of Brown v. Board of Education, the U.S. Government Accountability Office released a report on school segregation titled Better Use of Information Could Help Agencies Identify Disparities and Address Racial Discrimination. The study found that
The percentage of K-12 public schools in the United States with students who are poor and are mostly Black or Hispanic is growing and these schools share a number of challenging characteristics. From school years 2000-01 to 2013-14 (the most recent data available), the percentage of all K-12 public schools that had high percentages of poor and Black or Hispanic students grew from 9 to 16 percent, according to GAO's analysis of data from the Department of Education (Education). These schools were the most racially and economically concentrated: 75 to 100 percent of the students were Black or Hispanic and eligible for free or reduced-price lunch—a commonly used indicator of poverty. GAO's analysis of Education data also found that compared with other schools, these schools offered disproportionately fewer math, science, and college preparatory courses and had disproportionately higher rates of students who were held back in 9th grade, suspended, or expelled.
While detailing and commending the various efforts the Departments of Education and Justice have taken "to identify and address racial discrimination against students," the GAO recommends that the Department of Education "more routinely analyze its civil rights data to identify disparities among types and groups of schools and that Justice systematically track key information on open federal school desegregation cases to which it is a party to better inform its monitoring. In response, both agencies are considering actions in line with GAO's recommendations."
I might, however, note a more important recommendation that is beyond the purview of the GAO report: the Elementary and Secondary Education Act should require districts to track their own demographic data and report any year-to-year increases in racial isolation and hold them accountable for any increases that were the result of state or district policies. This would eliminate the question of de jure versus de facto resegregation and instead make the question one of whether the district caused the resegregation. Resegregation caused by the state or district should come with consequences. Moreover, given the ESEA's original intent to give the federal government leverage to force desegregation and to address the needs of students in concentrated poverty, this change to the ESEA is common sense, not radical. For a full explanation of this proposal, see here.
Tuesday, May 17, 2016
After Fifty Years of Failed Policies, A Federal District Court Finally Orders District to Desegregate
Chalk one up to the principle that Constitution imposes an affirmative duty on school districts to dismantle segregation and that duty does to evaporate into the ether simply by the passing of years. A district that relies on evaporation can, at some point, finally be held to account. This is what the new decision in Cowan v. Bolivar stands for. But to appreciate the opinion's significance and not think the new order to desegregate is not crazy, one most know something of the history in the district.
On July 24, 1965, African American students sued the Bolivar County Board of Education and numerous of its members, alleging that the defendants “have pursued and are presently pursuing a policy, custom, practice and usage of operating the public schools of Bolivar County, Mississippi, on a racially segregated basis.” The district court agreed in 1969, "permanently enjoin[ing the district] from discriminating on the basis of race or color" and directing the district to “take affirmative action to disestablish all school segregation and to eliminate the effects of the dual school system.”
What followed was a long history of the district never taking that affirmative obligation seriously. Sixteen years later in 1985, the United States felt compelled to enter the case to pursue further relief for students. The United States alleged that the district had "actively pursued the . . . policies and practices [to] frustrat[e] the implementation of the Court’s [July 22, 1969] Order." Among the most egregious practices were allowing students to attend schools in zones outside of their residence, assigning faculty and staff to schools on the basis of race, and building new schools in locations designed to maintain those schools as 100% African American. The district court granted the United States intervention and another two and half decades of fighting with the district to desist from segregative practices and reverse their effect followed.
As late as 2011, the district court cited the district's “lack[ of] will to meaningfully integrate its schools.” To that day, according to the United States, the district continued to maintain schools that were all-black or nearly so, and assigned teachers to those schools that reinforced their racial identity. The best that appears to be said of the district was that it had developed magnet school programs that simply did not work. This is no surprise. In a community where school officials had resisted desegregation, why would the district expect parents to voluntarily desegregate the schools for the district?
Thus, nearly fifty years after the United States Supreme Court held in Green v. New Kent County that districts have an obligation to come forward with plans that work and "work now" to eliminate the vestiges of segregation, and that freedom of choice plans that do not work are unconstitutional, the federal district court in Mississippi has ordered Bolivar to take affirmative steps to redraw its attendance zones and finally bring integration to the district. More specifically, the district is to consolidate its high schools and middle schools. The court in Bolivar wrote:
In this case, the constitutional violation at issue is decades of state-sponsored segregation which existed at the point Judge Keady issued his initial order in 1969. The District has not cited, and this Court has not found, authority standing for the proposition that court-ordered desegregation plans that fail to achieve the desired desegregation absolve a school district of responsibility for remedying the effects of the initial state-sponsored segregation. To the contrary, the law is clear that, “[u]ntil [a school board] has achieved the greatest degree of desegregation possible under the circumstances the Board bears the continuing duty to do all in its power to eradicate the vestiges of the dual system.” Davis, 721 F.2d at 1435. Thus, where a court-ordered plan fails to achieve desegregation, a school district or board remains obligated “to come forth with a more effective plan.” Penick, 443 U.S. at 459–60. There is no dispute here that, in violation of the Constitution, the District has operated a dual system and that, as observed by Judge Davidson’s January 2013 order, the District has failed to achieve the greatest degree of desegregation possible under the circumstances. Accordingly, the District “bears the continuing duty to do all in its power to eradicate the vestiges of the dual system.” Davis, 721 F.2d at 1435. If the District fails to discharge this duty, this Court “has broad power to fashion a remedy that will assure a unitary school system.” Penick, 443 U.S. at 459. Put differently, Judge Keady’s implementation of attendance zones places no restriction on this Court in fashioning a desegregation remedy.
A tremendous amount of credit goes to the United States and this district court. The last decade has seen other desegregation cases dismissed under similar circumstances. School districts had learned to run out the clock on desegregation. After decades of never taking steps to eliminate segregation, they would argue that demographic shifts were now the cause of segregation. Even to the extent this claim might contain a nugget of truth, it is an odd thing to suggest a district's obligation to remedy segregation could vanish if the district stalled long enough for demographics in the district to change. Yet, this is exactly what some district courts have permitted schools to do.
I have always argued that the issue of taking affirmative steps to desegregate must precede any analysis of demographic shifts. Demographic shifts should become logically relevant only at the point at which the shifts overcome the affirmative efforts of districts. Both the U.S. Department of Justice and the federal district court firmly understood and appreciated this distinction. And from this perspective, the court really had no reasonable choice but to finally force Bolivar to desegregate.
Get the full opinion here.
Monday, May 16, 2016
Texas Supreme Court Finds $3.6 Billion Shortfall in Education Means Nothing: A Sign of the Times or New Wisdom?
On Friday, the Texas Supreme Court rejected plaintiffs' claim that the state's schools funding system is unconstitutional. In doing so, it reversed a trial court that had found in plaintiffs' favor based on extensive evidence of inequality and underfunding in the state's schools. Plaintiffs have lost constitutional challenges to states' school funding systems before, but the Texas decision is truly remarkable.
First, the Texas decision may be but the newest signal of a troubling trend that has been developing since the recession. During the recession, courts began rejecting plaintiffs' substantive claims at a higher rate. Even with state revenues now above pre-recession levels, the new judicial approach lingers on. As analyzed here, this new approach (if it is one) is unjustified and places the future of education rights in serious jeopardy. Texas fits well within this shift. The state supreme court had consistently accepted adequacy and equity challenges in the past. In fact, plaintiffs had been the Texas Supreme Court on at least six prior occasions in the attempt to force the state to comply with both new and previously articulated requirements, winning several times. This last Friday, the Texas Supreme Court seemed to set a new course in the litigation.
Second, the facts in Texas are more egregious than most. In 2005, the Texas Supreme Court in Neely v. W. Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746 (Tex. 2005), acknowledged substantial evidence "that the public education system has reached the point where continued improvement will not be possible without significant change," and that "it remains to be seen whether the system’s predicted drift toward constitutional inadequacy will be avoided by legislative reaction to widespread calls for changes.” The court also held that that the statewide property tax supporting education in the state was unconstitutional. Since that time, education funding in the state has fallen by approximately 11% in real dollar terms, according to a national report by the Center on Budget and Policy Priorities. The trial court tagged this as a $3.6 billion shortfall below what students need.
Third, those students who need the most in Texas get the least. As this newest national Funding Fairness Report shows, Texas funds its high-need districts at only 95% of the rate of its low-need districts. One could slice and dice the trial court's facts and the Texas Supreme Court's assessment of them anyway you want to, but it is hard to understand how a school system that the court said needed improvement a decade ago is now constitutional when it spends 10% less money than before and does not provide extra resources for the students at the highest risk of education failure. Sounds like magic.
Fourth, the court tries to argue away the relevance of inequality and inadequacy in the state. Several other Supreme Court's have rejected funding challenges under the rationale of separation of powers. In short, they have argued that either funding issues are reserved entirely to the discretion of legislatures or courts' lack the standards to evaluation education quality questions. While there is a lot of room to disagree with those rationales, they are not per se unreasonable. More important, those rationales do not attempt to argue away the facts of inequality. They accept them but say courts are powerless or incompetent to deal with them. Texas has never taken that route. Like most other courts, the Texas Supreme Court has traditionally taken the position that it has both the power and competence to deal with this issue. And this newest decision did not dare reverse itself on the past legal doctrines. Instead, it decided to mangle and manipulate the facts, sometimes in the name of a new wiser view of social science. What follows is a sampling.
After acknowledging the trial court's finding of a $3.66 billion budget shortfall in one year, the court wrote
- "We do not question that a school system must spend money to accomplish a general diffusion of knowledge. Common sense says as much, as have we. Our financial efficiency doctrine presupposes that some good comes from equalizing access to funding. But here the trial court went much further, embarking on a quest to calculate the statewide dollar cost of an adequate education, and declaring the system unconstitutional because the Legislature had not provided funds to meet that threshold. What is not clear, given the current state of knowledge in the social sciences, is that spending a specific amount of additional money necessarily correlates to a better education as measured by objective outcomes. Nor is it clear that the specific cost of a constitutionally adequate education for the entire State can reasonably be determined by a court and therefore justifiably imposed on the Legislature as a constitutional mandate."
- "By focusing so heavily on the input of spending, attempting to decide a fundamental question that remains unresolved in the social sciences, relying on a misinterpretation of this Court’s jurisprudence, and relying on what the court deemed 'best practices,' the trial court erred in assigning a minimum dollar figure as constitutionally necessary to achieve a general diffusion of knowledge. This error infected the entire adequacy analysis, influencing the trial court over and over, and rendering its ultimate conclusion that the school system is constitutionally inadequate hopelessly flawed."
- "Plaintiffs argue that the educational system is inadequate because the State has failed to make its own calculations of the funds needed to meet its performance standards or to obtain a general diffusion of knowledge. . . .The State does not deny that the Legislative Budget Board has failed for years to comply with section 42.007. But even assuming that section 42.007 is a statutory mandate for the Legislature to calculate the level of funding needed to provide for a general diffusion of knowledge, this failure does not establish a constitutional violation of the adequacy requirement. . . . To be sure, the better practice might be for the Legislature to regularly calculate the cost of a general diffusion of knowledge, or components thereof, particularly in light of section 42.007. But complaining that the State has not come up with its own dollar figures for meeting legal mandates for public education does not render the system constitutionally inadequate, because the Plaintiffs bear the burden of proving the system does not achieve a general diffusion of knowledge."
What is striking in these above quotes is that the court has recognized a constitutional claim based on inadequate funding can be made, but here the plaintiffs' evidence is apparently misdirected. But how can evidence of a $3.6 billion dollar shortfall and the state's random guesses at adequate funding be misdirected or insufficient? The answer seems to be that those facts do not matter. But if those facts do not matter, which ones would? The court comes close to saying money does not matter, an assertion that social science simply will not support, no matter how much a court might wish it.
The court also engages in what appears to be wishful thinking about how much better educational outcomes have gotten in recent years. It makes much of the fact that the overall 2015 end of course pass rates on Texas standardized exams reached 92%. The numbers were even more "impressive" when looking at individual subjects and subgroups. For instance, white students' pass rate for Biology I was 99.2%. African Americans passed at 98.8%. Unfortunately, students' scores on the National Assessment of Education Progress suggest that Texas is grossly manipulating the cut off scores for passing (so as to comply with NCLB's old mandates or paint a good picture for the court). On NAEP, students' scores did not really budge. "From 2005 to 2011, the results are described as flat except for the eighth grade math score."
The court's biggest idea, however, may be that inequality, as a general matter, does not constitutional concern:
- "[T]his Court has never squarely held that a separate, cognizable adequacy claim can be asserted by a student subpopulation such as economically disadvantaged or ELL students. . . .The State also points out that article VII, 170 section 1 only requires a 'general diffusion of knowledge,' not a diffusion of knowledge to particular groups. We do not today foreclose completely a ruling of constitutional inadequacy as to subgroups, but conclude that the showing necessary for such a ruling would have to be truly exceptional, for several reasons."
The notion that a claim on behave of low-income students would be "truly exceptional" is truly and undeniably exceptional one. That is what five decades of school finance litigation and wins in over half of the states has been all about. If claims on behalf of disadvantaged students in Texas are presumptively invalid, then school finance litigation is presumptively invalid. Again, this is dangerously close to an explicit statement of a new era of school quality and funding, as described here.
Finally, the court attempts to transform additional support for low-income students into class warfare, inequitable funding itself, or reverse discrimination. The court characterizes plaintiffs' claims for additional funding for low-income students as a claim that at, "any level of total funding, certain groups deserve a larger piece of the pie. The Plaintiffs are hard put to justify this result as necessary to improve 'the system as a whole' unless they can show that the achievement gains to the allegedly underfunded subgroup will more than offset the losses that other students will sustain if they receive less funding."
Get the full opinion here.
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.