Tuesday, August 23, 2016
Recent State Supreme Court Decision Signals that Momentum Continues to Build Against Zero Tolerance Policies by Jason Nance
In re Expulsion of A.D. describes the expulsion of a student in southern Minnesota for accidentally bringing a small pocketknife to school. A school liaison officer found the knife while conducting a random search for controlled substances using a drug-sniffing dog. When the dog alerted the officer to stop at A.D’s locker, he searched it. Although he did not find any controlled substances, he did find a 3-inch folding pocketknife in a purse hanging in the locker.
The principal and officer then called A.D. into the principal’s office for questioning. They asked A.D. if she knew why they had called her into the principal’s office. A.D. responded that she believed it was because she brought a pocketknife to school. She then explained that she had used the pocketknife at her boyfriend’s family farm the previous weekend to cut twine on the hay bales. She also explained that she normally removes the pocketknife from her purse before leaving home, but that day she had forgotten that the knife was in her purse until someone announced that the school was on lock-down. The principal informed A.D. that she believed that A.D. was telling the truth and was fully cooperating with them. Nevertheless, under the school district’s weapons policy, the principal recommended to the superintendent that A.D. be expelled for the rest of the school year. Under Minnesota’s Pupil Fair Dismissal Act, a school district is authorized to suspend or expel a student for a “willful violation of any reasonable school board regulation.” The school district’s weapons policy prohibited a student from possessing a weapon while at school, including all knives and blades.
The Constitutional Challenge to Teacher Tenure Has Failed in California, But Justice Liu Highlights One Problem
The constitutional challenge to tenure in California has ended with a whimper rather than a bang. Vergara v. State captured the national attention when a trial court held two years ago that teacher tenure and seniority statutes violated students constitutional right to education. As detailed here, the opinion was riddle with serious flaws. Thus, it was little surprise that the Court of Appeals overturned the trial court earlier this year. By then, however, the theory had already spread to New York and Minnesota courts and plans were afoot to bring similar claims elsewhere. Given the gravity of the trial court decision and the issues it decided, I was sure the California Supreme Court would have the final word no matter what. Yesterday, proved that theory wrong, as the California Supreme Court denied certiorari and left the Court of Appeals decision in place. Three Justices did dissent, arguing that the Court should have taken the case. To no surprise, Justice Liu--the former law professor and leading education scholar--offered this introductory explanation for why the Court should have taken the case:
This case concerns the constitutionality of California's statutes on teacher tenure, retention, and dismissal. . . . . One of our criteria for review is whether we are being asked "to settle an important question of law." (Cal. Rules of Court, rule 8.500(b)(1).) Under any ordinary understanding of that criterion, our review is warranted in this case. As the trial court observed: "All sides to this litigation agree that competent teachers are a critical, if not the most important, component of success of a child's in-school educational experience. All sides also agree that grossly ineffective teachers substantially undermine the ability of that child to succeed in school." The controversy here is whether the challenged statutes are to blame for the hiring, retention, and placement of grossly ineffective teachers. Because the questions presented have obvious statewide importance, and because they involve a significant legal issue on which the Court of Appeal likely erred, this court should grant review. The trial court found, and the Court of Appeal did not dispute, that the evidence in this case demonstrates serious harms. The nine schoolchildren who brought this action, along with the millions of children whose educational opportunities are affected every day by the challenged statutes, deserve to have their claims heard by this state's highest court.
Justice Liu goes on to distinguish the two different groups of students on whose behalf Vergara was brought:
Monday, August 22, 2016
Federal Court Blocks Department of Education's Transgender Rules, Increasing the Odds of the Supreme Court Taking Up the Issue
A federal district court in the Northern District of Texas just blocked the Obama Administration from enforcing its interpretation that Title IX ensures transgender students the right to use bathroom facilities consistent with their gender. On Sunday, in Texas v. United States, the district court wrote:
The Court finds that Plaintiffs have shown a likelihood of success on the merits because: (1) Defendants bypassed the notice and comment process required by the APA; (2) Title IX and § 106.33’s text is not ambiguous; and (3) Defendants are not entitled to agency deference under Auer v. Robbins, 519 U.S. 452 (1997).
The court further explained:
What Does the New Public Advertising Battle over Charter Schools Tell Us about Overall Education Debates?
Last week, the story was the potential rift between local minority communities and their national and state leaders. This week, the story may be the amount of money being spent to counteract those those national and state level leaders who oppose charter school expansion. The Boston Globe reports:
A new $2.3 million ad boosting the expansion of charter schools in Massachusetts lists the campaign’s top five donors on screen, in accordance with state law. But the singularly bland names, including Strong Economy for Growth and Education Reform Now Advocacy, give no hint of who is writing the checks.
Four of the five donors to the procharter committee are nonprofit groups that do not, under state law, have to disclose their funders, allowing the individuals backing the effort to remain anonymous.
The cloak of secrecy surrounding the financing of what could be the most expensive ballot campaign in state history has frustrated election officials and underscored the proliferation of untraceable money in political races across the country.
. . . .
The ballot campaign known as Question 2 — which would allow for the creation or expansion of up to 12 charter schools per year in low-performing districts — is expected to smash the $15.5 million that was spent, mostly by gambling interests, to defeat a 2014 ballot question that would have repealed the state’s casino law.
This influx of money could be coincidental, but one has to wonder whether it is a response to the charter lobby's sense that things are slipping away.
Friday, August 19, 2016
Massachusetts Locked Over Charter School Expansion, Offering a Glimpse of the Politics Playing Out at the National Level
The national opposition to charters from the NAACP and Black Lives Matter is strengthening the position of those at the local levels who might otherwise fold under pressures to expand charters. At least, that appears to be the case in Massachusetts. As some may recall, an advocacy group filed a novel claim in Massachusetts last year arguing that the state's limitations on the number of and funding for charters violated the state constitution's mandate of a quality education. The theory, in many respects, copied that of the constitutional attack on teacher tenure in California: if there is an education policy you do not like and you think your policy would produce better results, challenge the policy you do not like as an unconstitutional impediment to a quality education. In fact, it worked at the trial level in California. But as I demonstrate here, constitutional education claims require a lot more than this. The challenge to tenure was riddle with factual holes and the Court of Appeals eventually saw through them. But the charter claim in Massachusetts is not even theoretically valid.
The state's obligation is to provide a quality education in its traditional public school system, not create an alternative system of charters for those who want to exit broken schools. To be clear, broken traditional public schools are a constitutional violation, but the notion that courts could mandate charters as the remedy is an enormous stretch. Nonetheless, the threat this litigation posed and, more important, the rhetoric and attention it brought to the issue of charters appeared to turn the political tide. Numerous leaders in the state, including the governor, were voicing support for a change to charter laws in the state shortly after the lawsuit. Quite honestly, I thought a new charter law was a foregone conclusion a earlier this year.
The current story out of Boston suggests the pendulum is already swinging back. Democratic leaders are standing stronger against charter expansion. And given that this particular change being debated will disproportionately fall on minority schools and communities, their views at both the local and national level are sure to loom large. But as my posts the past two days show, the differences in opinion between local and national opinions can run deep. The interesting question in Massachusetts is the possibility that differences in opinion between state leaders and local communities may also run deep.
Thursday, August 18, 2016
Birmingham's Continued Defense for Pepper Spraying Students Shows Why Courts Are the Last Vestige of Hope for So Many Students
Last year, in a challenge to the use of pepper spray on students, the federal district court in J.W. v. Birmingham Bd. of Educ., 143 F. Supp. 3d 1118 (N.D. Ala. 2015), wrote:
The court was profoundly disturbed by some of the testimony it heard at trial. The defendant S.R.O.s uniformly displayed a cavalier attitude toward the use of Freeze +P—in a display of both poor taste and judgment, one defendant joked that Freeze +P is a potent nasal decongestant for individuals with sinus problems. Equally disturbing, the trial revealed that the defendant S.R.O.s believe that deploying Freeze +P is the standard response even for the non-threatening infraction that is universal to all teenagers—i.e. backtalking and challenging authority. Frankly, the defendant S.R.O.s' own testimony left the court with the impression that they simply do not believe spraying a student with Freeze +P is a big deal, in spite of their own expert's testimony that Freeze +P inflicts “severe pain.” The court also heard testimony that indicated several of the officers spraystudents with Freeze +P because it is easier than more hands-on approaches, even though those approaches cause students less pain than Freeze +P. Ultimately, the court believes that it was unnecessary for the defendant S.R.O.s to spray most if not all of the plaintiffs. Unfortunately for some of the plaintiffs, behavior that is unnecessary and disturbing is not automatically unconstitutional.
The court ruled in favor of the students and issued an injunction to prevent future abuses. Quite honestly, I thought the case was over at that point. The story, however, is back in the news. The defendants appealed the case to the 11th Circuit Court of Appeals and yesterday defended their position in oral argument. I have yet to get the transcripts of oral argument, but the brief argued that the district court seeks to control “(1) [school resource officer] duties; (2) SROs’ use of Spray; (3) SRO training; (4) and SROs’ decontamination of students that have been sprayed,” even though it is “the power of the City of Birmingham’s elected government to control the BPD” through the police chief."
In my new book Ending Zero Tolerance, I spend the first half of the book laying bare the irrationality and ineffectiveness of harsh discipline and policing in schools. I acknowledge the importance of new state and federal policies designed to limit certain egregious problems, but critique many of them as too slow coming and too narrow in scope to fix an endemic problem. In the end, I emphasize that constitution stands as the only constant final red line against abuses and irrationality in school discipline, particularly for the most marginalized students. While advocates must continue to press for policy reform, courts must play an important role as well. If there were any doubt in courts' role, it ought be vanquished by the fact that Birmingham for years had been spraying its students with pepper spray for minor misbehavior in the first instance and, second, that Birmingham is audacious enough to demand discretion to carry out similar actions in the future.
This story also confirms another major premise of the book: no matter how much progress we may make in certain cities and states, there will always be a number of hold-outs. In these hold-outs locations, students cannot turn to the political process. They can only hope that the institution designed to protect against the tyranny of the majority--courts--will step forward.
Wednesday, August 17, 2016
Making Sense of African American Support for Charters: Affirmative Support or a Rational Response to Derelict States?
I rarely come back to a subject on consecutive days, but the headline of story this morning and the fact that so much was left unsaid in my post yesterday offers a compelling occasion. This morning, Keli Goff penned an article titled "NAACP Calls for Charter School Ban, Leaves Black Parents and Children Behind." The story led with the statement that "Groups that want to be the voice of people of color have to listen to all people of color, not just those reciting one party’s platform and talking points." Later she cites data that "that 65 percent or more of black parents in Louisiana, New Jersey, and Tennessee support charter schools—and that 70 percent of black voters believe in some from of educational choice for parents."
I cannot quibble with her basic factual points. They were at the thrust of my article yesterday and my conclusion that the "charter school gig" was far from up. What bears more discussion, however, is why so many families and communities want them. Is it the intrinsic merit of charter schools? Is it distrust of the traditional system? Or is it that existing opportunities are so deficient that they feel forced to accept consolation prizes like charter schools or vouchers?
No one motivation or answer fits all situations. No doubt, there are many excellent charter schools out there and the hope that one can secure a seat in one of those schools can be enough to drive politics. On top of that, the charter industry has a lot of incentive to oversell those success stories. The large majority of charters, however, do not fall in the success story category and a large chunk of families are not motivated by a lottery ticket mentality when it comes to their own children, although some surely succumb to it.
Tuesday, August 16, 2016
At its recent national convention, the NAACP passed a resolution calling for a moratorium on charter schools. At roughly the same time, Black Lives Matter issued its policy agenda for the nation, which also included a moratorium on charter schools. The NAACP offered this justification for its position:
- “Charter schools have contributed to the increased segregation rather than diverse integration of our public school system.”
- “Weak oversight of charter schools puts students and communities at risk of harm, public funds at risk of being wasted, and further erodes local control of public education.”
- " [R]esearchers have warned that charter school expansions in low-income communities mirror predatory lending practices that led to the sub-prime mortgage disaster, putting schools and communities impacted by these practices at great risk of loss and harm…”
This turn of events is worth special note because the African American community's initial support for charters was a driving force for their adoption. Without state level support and the local demand of African American communities, I would imagine that charter school expansion and enrollment would be only a fraction of its current levels. But now that we have so many charters, I wonder if these new positions really have the capacity to reverse the tide.
Monday, August 15, 2016
First, let me say that that what I have learned about Joseph Kennedy, an assistant football coach at a public high school in Bremerton, Washington, is mostly from second-hand reporting. His story has burned up the the internet and airways with hard line positions on both sides, so much so that finding primary reporting is hard.
Here are what I understand to be the facts. For the past several years, Mr. Kennedy has engaged in religious exercises, apparently before and after games. Before games, he prayed. After games, he prayed and/or offered some sort of religious "inspirational talk" at mid-field. Sometime in the last year, the school district sent him a letter telling him to stop. Kennedy is said to have continued his activities in defiance. It is my understanding that he was fired.
When the Liberty Institute learned of this, it came to his defense indicating it would sue the school district for religious discrimination. Since then, politicians, both local and national, have gotten into the fracas. According to the Seattle Times, forty-seven members of Congress sent a letter in support of Kennedy. He has apparently now filed his lawsuit, giving the story legs again.
Once one cuts through the rhetoric, it seems to be that this case boils down to a few key facts. First, was Kennedy, in fact, leading a prayer before games? The law is clear that the state cannot lead religious exercises or direct others to do so. The assistant football coach is a state actor. Thus, he cannot lead students in a prayer.
Thursday, August 11, 2016
Lawsuit Challenges South Carolina's Disturbing Schools Act, Can It Also Challenge How We Think About Schools Discipline?
Last year, the video footage of a high school female being jerked and flipped out of her desk, thrown to floor, drug across it, and then handcuffed captivated the nation. Its shock value carried it for nearly a week and was also enough to prompt some legislative hearings on the state's Disturbing Schools Act, which was the authority under which the officer purported to act. But alas, nothing came of it. The law remains in place. As is so often the case, these incidents are perceived as aberrational rather than a fundamental aspect of the discipline systems in our schools. Once the story passes, so does the impetus for change.
Yesterday, the ACLU revived the issue and the prospects of change, at least, on the issue of the Disturbing Schools Act. It filed a case in federal district court arguing that the criminal statute authorizing the arrest and punishment of individuals who disturb school violates due process. The Act is so broad that it, in effect, permits law enforcement to arrest students at their discretion for almost anything. With such broad power, students and teachers have no way of know exactly what does or does not violate the law. This, the ACLU argues, violates basic due process and liberty principles.
The story of one of the plaintiffs in the case, Niya Kenny, makes this point clearly. Niya was in the classroom last year when the officer drug the other student to the ground. Niya, understandably shocked by the incident, did what almost every other person under the age of thirty or so does in America when they see something like this: she pulled out her phone and videotaped it. For this, she too was arrested and charged under the Disturbing Schools Act. Regardless of whether school rules prohibit the possession of cellphones, their use during class time, or anything else, the idea that this type of activity could be construed as a crime is surely something I, a law professor, never would have considered. I could only imagine what Niya must have thought when the cuffs went on.
Maybe the most shocking aspect of this story, however, has been those who have defended the expansion of law enforcement inside schools and their use of violence on students over the past year. The response I have gotten is that I do not know how dangerous schools really are and, even if they are not, we should err on the side of caution. It is, after all, our children we are talking about. My position would purportedly leave our children defenseless against marauders and gun-carrying high schoolers.
A few days ago the New York Civil Rights Coalition sent a letter to Moraine Valley Community College to
call your immediate attention, and to request your formal response, to the Chicago Tribune August 4th piece, and in other media, about a college course at Moraine Valley Community College reportedly exclusively for black (African-American) students.
Especially concerning to us are quotes attributed to college publications and officials that explain and seemingly justify the racial restrictions on enrollment in the required college course, “College: Changes, Challenges, Choice.” According to published reports and the Chicago Tribune piece, a catalog of course listings Note specifies that registration to a section of the aforementioned course is “limited to African-American students.” The piece quotes the college’s assistant director of communications, Jessica Crotty, as explaining that the course, which meets for 8 weeks, is required to be taken by students in their first year. The catalog describes the course as one that “provides [the student] an opportunity to assess your purpose for college, assess your study strategies, set college and career goals, examine your values and decision-making skills, and develop an appreciation for diversity.”
In explaining and, arguably, defending racial restrictions on some sections of the course, Ms. Crotty is quoted as saying: “Sometimes we set aside sections for specific populations, including veterans and older students.” (Emphasis added). Ms. Crotty added, and I quote: “Students feel comfortable and are more likely to open up because they’re with other students who are like them.” (Emphasis added),
I find it strange indeed that a course that purports to guide and develop students’ “appreciation for diversity” employs racial separatism and segregation as acceptable and effective means for teaching that “appreciation” for diversity. Most shockingly, I find it incredible and disingenuous on the part of any educational institution and/or higher education official to equate offering courses in racially restrictive ways to that of clustering students in focus groups that are not themselves categories prohibited by law or regulation.
Worse, we are shocked and appalled by the notion that racial segregation can be argued for, much less justified, on the premise that statistical data or “social science evidence” may exist somewhere that allegedly supports the college’s policy and/or practice of restricting or conditioning enrollment in a course of study in any academic program by race or skin color. Such argumentation obscures and defies everything we know about the wrong-headedness of classifying and treating students differently by reason of their “race”, and separating them by race and/or skin color in the academy.
Separation or segregation by race defies state and federal laws, and Supreme Court decisions that prohibit differential treatment of black students or of other students because of their skin color or groupings that are premised and justified by stereotypes about their racial group.
Tell me, please, that these media reports are errant.
Tell me, please, that Moraine Valley Community College is not actually segregating students in academic courses by race and/or skin color, in ways that separate them from their peers of other skin colors and in ways that bar any student from enrolling in a course designated for students of a particular race only.
In explicit terms, it is not sufficient for the college to offer psychobabble rationalizations for reprehensible racial classifications and legally and morally suspect groupings. We find it especially abhorrent for a college to project and invoke the bogus argument that any principled or singular objection to classes and courses for blacks only is itself a manifestation of [whites’ and others’] hostility or racism towards blacks. That’s racial and sheer idiocy. Rather, the grouping of black students in a course designated only for “them” is the practice of racism; it is the same as the college decreeing that sections of a course will be restricted to students who are “white/Caucasian,” and, therein, justified in the guise that students of a certain skin color supposedly feel more comfortable in discussing sensitive matters with peers of ‘”their own kind.”
Classes for “whites only” and/or classes for “blacks only” are one and the same—sheer racism. Such racial restrictions violate every tenet of equal protection under the law, and of academic integrity—notably the open pursuit of knowledge. I need not recount here or remind you what the federal and state laws require and prohibit. Indeed, Moraine Valley Community College’s web site and mission statements make clear that its leadership and trustees are keenly aware of the legal framework and guidelines for avoiding discriminatory policies and practices: “It is the policy of Moraine Valley Community College not to discriminate on the basis of race, color…” or “conduct in its educational programs, activities or employment practices” discrimination based on race, color. Thus, we cannot abide the alibis and excuses offered by any official or spokesperson for a community college for registering students—or barring students’ registering or enrollment to any academic offering—on the basis of any student’s race or skin color.
The mocking of the law and the sheer arrogance implicit in decision-making based on race and skin color “differences” are at hand. Any policy or effort that restricts enrollment to a college course on such objectionable and prohibited racial grounds—is profoundly obvious and disturbing. Such racial discrimination raises troubling and substantial questions about the college’s commitment to state and federal law—indeed to the rule of law—and to its commitment to the open pursuit of knowledge which is a fundamental of the academic experience and mission. To defy the law and regulations and academic principles in such a flagrant fashion suggests the lowering if not outright abandonment of rigorous standards of the college’s accreditation. That is why we are addressing this open letter to the college’s president and to the president of the Higher Learning Commission, the college’s accrediting authority. We are also copying this letter to the Chair of the Board of Trustees, because it is our belief that the trustees share responsibility for upholding the law and for fulfilling the college’s academic mission without compromise with fads and racist shenanigans.
With confidence, we are of the opinion that a self-respecting board of trustees and Higher Learning Commission will promptly recognize and act on their duty to intervene and to correct any violations of law and public policy and to remedy any diminution of academic standards. The imposition of any racial qualification or restriction on any student, of any race, to enroll in any college course because of his/her race or skin color, cannot stand. The objection to such race-based restrictions must by definition take exception to any purported rationalization that the affected or excluded racial group will not contest the racial classification. Likewise, we are not impressed with the argument that the affected minority group or the excluded members of other racial groups may “opt” to enroll in alternate courses that do not have the racial restrictions.
Let us be clear; racial segregation as offered or practiced by a community college is objectionable on legal and educational grounds. That there are some blacks, and whites, who advocate such restrictions on course enrollment, matters not the least bit to us. In our view, racial restrictions and qualifications for a course are improper classifications and are evidence of discrimination per se, in purpose and effect. As my mentor, Dr. Kenneth B. Clark, the social psychologist, observed while he was alive—in objecting to the then fashion of separatist fads that were sweeping some college campuses, commented:
“In 1954 [when the U.S. Supreme Court outlawed enforced segregation in public education] it would have been the consensus in the black and white liberal communities that white racism would have gained its greatest triumph had it been able to persuade its black victims that segregation was not only acceptable but desirable in itself, and that the justification for this separatism was color alone.’
Segregation by race then and today is not acceptable; and it is not desirable.
Higher education leaders should express the strongest opposition and outrage over this latest fad and manifestation of racism—that of stereotyping, steering, and segregating students by their “race” and/or skin color into separate courses and classrooms.
If these reports that I have described to you have any ring of truth to them, we urge you to rethink and remove all racial restrictions and qualifications for course-taking at Moraine Valley Community College, forthwith.
The College President, Sylvia Jenkins, immediately recanted, indicating that the "decision has been made to remove all racial restrictions and qualifications for course-taking at Moraine Valley Community College." If winning were only that easy in other instances.
Wednesday, August 10, 2016
Unequal Access Report: Twenty Percent of California's Charter Schools Have Exclusionary Admissions Policies
The ACLU Foundation of Southern California and the Public Advocates have released Unequal Access: How Some California Charter Schools Illegally Restrict Enrollment. Unequal Access reports that over 20% of California’s charter schools (about 253), have exclusionary admissions policies. At least 22 of those schools have policies that expressly exclude low academic performers, the very set of students who are often cited to justify charter creation. Cribbed from the report’s summary:
Although charter schools may be privately controlled and receive non-government funding, they are part of California’s public education system. The California Constitution requires all students to have equal access to educational opportunity, and the state legislature made this principle clear in the California Charter Schools Act, which plainly requires charter schools to “admit all pupils who wish to attend.” Except for limitations due to space, charter schools may not enact admissions requirements or other barriers to enrollment and must admit all students who apply, just as traditional public schools cannot turn away students.
Our review of California charter schools’ reveal that over 20% have written policies reveals that illegally prevent students from enrolling or remaining at their schools because the policies:
- Deny enrollment to students who do not have strong grades or test scores.
- Expel students who do not maintain strong grades or test scores.
- Deny enrollment to students who do not meet a minimum level of English proficiency.
- Discourage or preclude immigrant students from attending by requiring parents/guardians or
- students to provide Social Security numbers or other citizenship information before enrollment.
- Select students based on onerous pre-enrollment requirements such as student or
- parent/guardian essays or interviews.
- Refuse to enroll students unless their parents/guardians volunteer or donate money to the school.
The report recommends that charter school operators eliminate all exclusionary admission requirements that restrict student enrollment on the above grounds.
On May 19, 2011, F.M., a thirteen-year-old seventh grade student at Cleveland Middle School of Albuquerque Public Schools, generated several fake burps during class, causing several students to laugh. The teacher ordered F.M. to stop, but F.M. ignored her. The teacher then asked F.M. to leave the classroom and sit in the hallway. F.M. complied, but once in the hallway, he continued to disturb the classroom by leaning into the entranceway of the classroom to burp and laugh. At that point, the teacher requested assistance with the student on a school-issued radio. A school resource officer (SRO) appeared in response to her request. Based on what the SRO observed and heard from the teacher, the SRO decided to arrest F.M. for violating N.M. Stat. Ann. § 30-20-13(D), which says that “[n]o person shall willfully interfere with the educational process of any public or private school by committing . . . any act which would disrupt, impair, interfere with or obstruct the lawful mission, processes, procedures or functions of a public or private school.” The SRO conducted a pat-down search on F.M. and found nothing, handcuffed him, put him in a patrol car, drove him to a juvenile detention center, and booked him. The SRO later admitted that F.M. did not pose a flight risk and was not combative, but was cooperative. After the juvenile detention center completed its risk assessment of F.M., it released him to the custody of his mother with no further actions. The school, however, imposed a one-day suspension. F.M. served his suspension and did not return for the remainder of the school year.
F.M.’s mother filed a suit against the SRO on behalf of her son claiming that his Fourth Amendment rights were violated when her son was arrested and handcuffed. She claimed that any reasonable officer should have known that burping was not a criminal offense and that the force used to facilitate the arrest was unnecessary. The United States Court of Appeals for the Tenth Circuit, however, upheld the lower court’s dismissal of the case, awarding the SRO qualified immunity. According to the court, the plaintiff had failed to establish that the SRO violated a constitutional right of F.M.’s that was clearly established at the time of the alleged unlawful activity. The Tenth Circuit based its ruling primarily on its determination that the SRO’s understanding that he had probable cause to arrest F.M. under section 30-20-13(D) was “objectively reasonable—even if mistaken.”
While one could disagree with the majority over whether the SRO violated F.M.’s “clearly established” constitutional right (as one circuit judge on the panel did), to me a larger question remains that the court could not address: why do allow law enforcement officers to become involved in student behavioral matters that do not endanger other members of the school community? This is not to say that we shouldn’t hold students accountable for misbehaving in the classroom. We should. But as I explain here, the consequences of involving a youth in the justice system are severe for both the youth involved and for our nation as a whole. In fact, even an arrest that does not ultimately result in an incarceration can have detrimental, life-altering effects on students. Several empirical studies confirm that just an arrest often leads to lower academic achievement, dropping out of school, and future involvement in the justice system. Furthermore, overly-punitive school environments generally do not lead to positive outcomes, even for those students at the school who do not misbehave. Empirical studies suggest that an overly-punitive school environment can alienate students, destabilize the learning climate, foster more disorder in the long run, and impede academic achievement for all students at the school.
As I explain elsewhere, schools do not have to (and should not) over-rely on SROs, harsh surveillance measures, and exclusionary tactics to maintain safe and orderly learning climates. Rather, there are other evidence-based measures that schools can implement to promote student discipline and safety without putting more students on a pathway from school to prison. But if schools do choose to rely on SROs, it is essential that they enter into memorandums of understandings (MOUs) to ensure that SROs do not involve themselves in routine discipline matters with students, like burping in a classroom.
Monday, August 8, 2016
First Circuit: Good Academic Performance Is Relevant But Not Determinative For Special Education Eligibility
The First Circuit published an opinion last week dealing with the ambiguity of the "need" provision in the Individuals with Disabilities Education Act. The parents of a seventh-grader, called Jane Doe in the opinion, sued the local school district after it decided that Jane did not require special education in reading fluency because she was doing well in school. Jane had received special education services for years to improve her reading skills. Jane's parents argued that the "need inquiry" under the IDEA should determine whether a child needs special education to remediate the underlying disability. The school district argued that the need inquiry should determine whether a child needs special education to benefit from the school curriculum. If the child is doing well academically, the district argued, the child no long qualified for special education services. The case centers around the text of Section 1401(3)(A)(ii) of the IDEA that provides that a child determined to have one of the qualifying disorders under the first prong must also, “by reason thereof,” “need[ ] special education and related services” to be eligible for special education. 20 U.S.C. § 1401(3)(A)(ii). The First Circuit found that "Jane's overall academic performance could potentially be relevant in determining whether she has a reading fluency deficit, the district court erred in relying on such evidence without regard to how it reflects her reading fluency skills." The circuit court vacated and remanded the judgment in favor of the district, holding that the district court weighed Jane's overall academic achievement too heavily when the child's deficiency in reading fluency was sufficient by itself to support eligibility and that the district court afforded excessive deference to the hearing officer's determinations. In a concurrence, Circuit Judge Lipez offered guidance cautioning courts to not solely look at "an absolute standard of educational performance, the satisfaction of which would automatically disqualify a child from eligibility under the need prong." The case is Doe, v. Cape Elizabeth Sch. Dist., No. 15-1155, 2016 WL 4151377 (1st Cir. Aug. 5, 2016).
Thursday, July 28, 2016
On July 11, the Southern Poverty Law Center (SPLC) filed a lawsuit alleging that the school funding provisions of the state charter school law passed by the Mississippi Legislature are unconstitutional.
The complaint, in Araujo v Bryant, points out that the Mississippi Constitution requires schools to be under the supervision of the State and local boards of education in order to receive public funding. However, under the Charter School Act (CSA), charter schools receive public funding even though they are exempt from the oversight of the State Board of Education, the Mississippi Department of Education, and local boards of education.
The lawsuit calls for the Court to strike down the funding provisions of the CSA.
"A school operating outside the authority of the state board of education and the local school board cannot expect to receive public taxpayer money," said Jody Owens, managing attorney for SPLC's Mississippi office. "The state constitution is clear on this matter."
Charter schools in Mississippi are accountable to the Mississippi Charter School Authorizer Board, a body appointed by the governor and lieutenant governor, which receives three percent of the public tax dollars going to the charters it authorizes.
The complaint explains that two charter schools are currently operating in Mississippi, both within the boundaries of the Jackson Public School District (JPS). In one school year, more than $1.85 million was diverted from the local district to fund these schools. That amount could have paid the salaries of 42 public school teachers, according to the complaint. Given that a third charter school is set to open within JPS's geographic boundaries, the complaint notes that the local schools stand to lose more than $4 million in the 2016-17 school year.
The lawsuit warns that the opening of more charter schools will compound the financial harm. There are currently applications pending for four more charter schools. Each charter school would be located within the Jackson Public School District, drawing more funding away from the schools that are under the local school board.
"I sent my children to a public school because I believe in our public schools," said Cassandra Overton-Welchlin, a plaintiff in the case and the mother of two children enrolled in the Jackson Public School District. "I'm outraged that state and local tax dollars are funding charter schools in a way that threatens the existence of important services, including services for those with special needs, at my children's school. As a taxpayer, I expect my property tax dollars will be used to support local public schools, which educate the vast majority of students in Jackson."
The lawsuit was filed in the First Judicial District of the Chancery Court of Hinds County, which includes Jackson, the state capital.
Wednesday, July 27, 2016
The Office for Civil Rights issued this press release yesterday:
The U.S. Department of Education’s Office for Civil Rights (OCR) today issued guidance clarifying the obligation of schools to provide students with attention-deficit/hyperactivity disorder (ADHD) with equal educational opportunity under Section 504 of the Rehabilitation Act of 1973.
“On this 26th anniversary of the Americans with Disabilities Act, I am pleased to honor Congress’ promise with guidance clarifying the rights of students with ADHD in our nation’s schools,” said Catherine E. Lhamon, assistant secretary for civil rights. “The Department will continue to work with the education community to ensure that students with ADHD, and all students, are provided with equal access to education.”
Over the last five years, OCR has received more than 16,000 complaints that allege discrimination on the basis of disability in elementary and secondary education programs, and more than 10 percent involve allegations of discrimination against students with ADHD. The most common complaint concerns academic and behavioral difficulties students with ADHD experience at school when they are not timely and properly evaluated for a disability, or when they do not receive necessary special education or related aids and services.
Today’s guidance provides a broad overview of Section 504 and school districts’ obligations to provide educational services to students with disabilities, including students with ADHD. The guidance:
- Explains that schools must evaluate a student when a student needs or is believed to need special education or related services.
- Discusses the obligation to provide services based on students’ specific needs and not based on generalizations about disabilities, or ADHD, in particular. For example, the guidance makes clear that schools must not rely on the generalization that students who perform well academically cannot also be substantially limited in major life activities, such as reading, learning, writing and thinking; and that such a student can, in fact, be a person with a disability.
- Clarifies that students who experience behavioral challenges, or present as unfocused or distractible, could have ADHD and may need an evaluation to determine their educational needs.
- Reminds schools that they must provide parents and guardians with due process and allow them to appeal decisions regarding the identification, evaluation, or educational placement of students with disabilities, including students with ADHD.
In addition to the guidance, the Department also released a Know Your Rights document that provides a brief overview of schools’ obligations to students with ADHD.
The mission of OCR is to ensure equal access to education and to promote educational excellence throughout the nation through the vigorous enforcement of civil rights. Among the federal civil rights laws OCR is responsible for enforcing are Title VI of the Civil Rights Act of 1964; Title IX of the Education Act of 1972; Section 504 of the Rehabilitation Act of 1973; and Title II of the Americans with Disabilities Act. For more information about OCR and the anti-discrimination laws that it enforces, please visit its website and follow OCR on twitter @EDcivilrights.
Monday, July 25, 2016
It is not altogether clear what Governor Christie was thinking earlier this month/late last month when he offered this radical proposal (as reported by the Washington Post):
Christie is proposing a replacement for the current weighted-student formula that would move a lot of money away from the urban districts to suburban districts. In his proposal, Christie said that he wants to give every school district in the state the same amount of per-student aid per district — $6,599 — in what he said would help lower property taxes in many suburbs. Special education funding and charter schools may be exempt from the new formula, he said.
“It is time to change the failed school funding formula and replace it with one that will force the end of these two crises — the property tax scandal and the disgrace of failed urban education,” Christie said in a speech at a high school on June 21. . . . An analysis of the “Fairness Formula” by Mark Weber and Ajay Srikanth says that it will hurt many districts serving large numbers of at-risk students. . . . It will, the analysis said, reward the wealthiest districts — which are already paying the lowest school tax rates as measured by percentage of income — and will force the poorest districts to cut their budgets, increase local property taxes or both. The authors of the analysis also disputed Christie’s charge that schools enrolling high percentages of at-risk students “have failed,” noting that research shows at-risk students and students with limited English proficiency have made big gains on test scores over the past two decades.
In some respects, this move is not out of character. Christie cut over a billion dollars in funding for low-income districts during the recession, before the New Jersey Supreme Court forced the state to replace a large chunk of the funds--those reserved for the plaintiffs districts in the long running Abbott line of cases. In another respect, the timing is strange. Christie made time during his auditions for vice president and national policy arguments to go after schools at home. From afar, I had almost forgotten that he was still governor of New Jersey. This timing strikes me as odd, save for the fact that his attack on schools may be more about tax policy than school policy. Suburban tax payers would get a huge windfall under his proposal. One can only hope that now that his chance for a vice presidency is gone, so too are his designs for a new funding formula.
Thursday, July 21, 2016
New Transgender Discrimination Case Against Wisconsin School District Could Be Quick Repeat of Grimm or Present Several Wrinkles
Ashton Whitaker, A transgender high school student in Wisconsin, has filed suit against Kenosha School District. He alleges that the district has denied him access to male restrooms consistent with his gender and continues to refer to him by the female name on his birth certificate. He argues that this treatment violates Title IX and the U.S. Constitution. His factual and legal claims are nearly identical to those in Grimm v. Gloucester, in which the Fourth Circuit earlier this year sided with the student. Whitaker's case could be a simple repeat or move the law and courts in new directions.
Will the school district contest the question of whether Title IX protects transgender students in access to restrooms or will it simply contest Whitaker's version of the facts? If it concedes the facts and only contests the law, Grimm is the only case on point at the moment. Thus, the district court would a) rule quickly in favor of Whitaker, b) affirmatively counter the reasoning in Grimm or c) take the route the 6th Circuit did in the gay marriage cases, holding that until the Supreme Court or its own circuit speaks, it will rule in favor of the district. The same options would presumably exist for the Seventh Circuit Court of Appeals in reviewing the district court.
Option A would create two circuits firmly aligned in favor of transgender students and make the grant of cert in Grimm or Whitaker's case less likely (Grimm is currently pending before the Supreme Court). Option B or C would eventually create a circuit split and, even if the Court denies cert in Grimm, make a grant of cert in Whitaker's case more likely a couple of years from now.
Also interesting in Whitaker's case will be questions of qualified immunity. The district officials may argue that regardless of what the law requires moving forward that the law was unclear at the time they acted. This is after all new law. This was attempted in several cases dealing with sexual orientation claims over the past decade or two. On the other hand, the Office for Civil Rights has held a firm position for longer on this issue. And in Title IX cases, the Court has tended to rely heavily on OCR policy guidance to provide the necessary notice of illegality to school districts.
One thing, however, is clear: Whitaker is represented by exceptional counsel. Relman, Dane & Colfax has taken his case. The firm has been nationally recognized for its civil rights work and victories for decades.
Wednesday, July 20, 2016
New Study Confirms the Role Race Plays in School Choice, But Past Experience and Common Sense Offer a Solution
A recent study of school choice by Steven Glazerman and Dallas Dotter reveals the lingering cold-hard truth that race still matters far too much in parents' decision of where to send their child to school. In their paper, Market Signals: Evidence on the Determinants and Consequences of School Choice from a Citywide Lottery, they find that:
- Parents trade off school demographics and academic performance with distance when choosing schools.
- Parents tend to prefer schools where their children have at least some peers of the same race or ethnicity, but some parents also prefer a diverse school to a homogeneous one.
Preferences vary by race, income, and grade level.
- Simulations suggest that parent preferences, if allowed to dominate school assignment (with no capacity constraints), translate into more racial and economic integration and higher enrollment in high-performing schools.
This last point bears further explanation. The study finds that current school choice is heavily influence by race, but race preferences are not linear. Rather, there are tipping points, at which a school becomes too heavily one racial groups and parents of that group appear to prefer more diversity. The problem in DC is that the system lacks the controls and choices to bring this diversity interest into play. In simulations, however, the study finds that school choice could improve integration. In particular, they assume a world in which the district closed more low performing schools and increased capacity in higher performing schools.
As a side note, this appears to be the exact opposite of what DC has done over the past decade. A lawsuit by special education and minority students in federal district court alleged that DC had closed numerous low performing schools but simply lumped those students into larger low performing schools. Higher performing schools and white families had been almost completely unaffected by school assignment closures and policies in the DC. See more here.
Regardless, this new study, coupled with what half a century of social science has demonstrated about the negative effects of concentrated poverty in schools, confirms why the various choice programs proposed at the federal and state level are such a bad idea. For choice to improve educational opportunity, policy makers have to be far more careful about the context in which they apply it.
The million dollar question is how we might make race matter less in choice program. The answer may be surprising to some: consciously consider race from the outset. Controlled choice plans that account for race and place caps on racial and poverty concentrations have proven extraordinarily effective in creating and maintaining integration. And, as detailed in In Defense of Voluntary Desegregation, once districts achieve some level of demographic balance in the earlier years of a choice program, parents are then forced to begin making school choice based on factors other than race. In other words, race cannot factor in a parent's school choice because demographic are consistent across all the schools they might consider. Within this context, geography, academic programs, and other relevant factors will weigh more heavily. In this way, schools consideration of race is actually the way to make race no longer matter.