Wednesday, January 29, 2014
Wyoming’s Superintendent of Public Instruction vowed to return to her job at the department of education this week after the Wyoming Supreme Court ruled that a law stripping her of most of her authority was unconstitutional. State school superintendent Cindy Hill sued the state after Wyoming Governor Matt Mead signed a law that transferred her supervisory powers to an appointed “director” of public instruction, who took over the state’s $1 billion education budget and 150 employees. Hill was assigned a separate office away from the education department with about six employees. In a 3-2 decision released Tuesday, the Wyoming Supreme Court ruled that the state constitution gives the Superintendent, an elected position, the responsibility of the “general supervision of the public schools” and that the legislature could not constitutionally transfer that supervisory authority from an elected state official to an appointed director. The bill that divested Hill of power, Senate File 104 (nicknamed the “Hill bill”), is now being reviewed to see if it can be saved. Superintendent Hill’s case will return to the Laramie court that asked the state supreme court to rule on the law’s constitutionality. Meanwhile, Hill has announced that she will be running for governor next year but she still faces a mismanagement investigation by a state House committee that could lead to her impeachment. Read court’s opinion in Powers v. State of Wyoming, et al., here.
Tuesday, January 28, 2014
Investing in Integration: What a Second Year Law Student Knows and the Department of Education Cannot Figure Out
Jennifer Rust, a law student at Loyola University, just published Investing in Integration: A Case for "Promoting Diversity" in Federal Education Funding Priorities, 59 Loy. L. Rev. 623 (2013). She points out that the Department of Education "first identified school diversity as a priority in granting discretionary federal funding to schools in 2011," but this step "came nearly four years after a majority of the United States Supreme Court declared school integration a 'compelling government interest.'" and only after staunch criticism from civil rights advocates. Moreover, it is just one of sixteen priorities and not present in all programs. She then goes on to discuss the Department and "President Obama's rigorous support and funding for charter schools[, which has] catapulted the movement to the forefront of education reform."
The Department's Race to the Top Fund:
provides over $4.35 billion to eligible schools and awards federal funding to states that lift the cap on the number of charters they allow to operate. However, RTF provides virtually no incentive for charters to promote diversity. Under the current plan, states can win RTF funding without any effort to reduce concentrations of poverty and racial isolation within their schools. RTF is indicative of the failure by the federal government to adequately emphasize the importance of voluntary integration in its programs.
. . .[C]harter schools are uniquely positioned to promote diversity in education, but have fixated on a flawed agenda. By prioritizing high poverty schools over all others, charters have made a failed attempt to overcome the weight of history suggesting that separate schools are not better for anyone.
I was so struck by this law student's ability to capture the Department's error by omission--something not easy to spot--that I asked the usual suspects whether they had played in any role in her work. Thus far, the answer is no. Ms. Rust's footnotes indicate she has read several published papers by diversity coalitions and organizations, but came to her idea and conclusion on her own. If only the Department was as observant and considerate.
Monday, January 27, 2014
Deborah Gerhardt at UNC School of Law has been in the middle of North Carolina's fight over teacher pay, accountability, and tenure. In the Slate article earlier this year, she summarized North Carolina's race to the bottom:
As recently as 2008, North Carolina paid teachers better than half the nation. . . . After six years of no real raises, we have fallen to 46th in teacher pay. North Carolina teachers earn nearly $10,000 less than the national average. And if you look at trends over the past decade, we rank dead last: After adjusting for inflation, North Carolina lowered teacher salaries nearly 16 percent from 2002 to 2012, while other states had a median decline of 1 percent. A first-year teacher in North Carolina makes $30,800. Our school district lost a candidate to a district in Kentucky because its starting salary was close to $40,000. It takes North Carolina teachers more than 15 years to earn $40,000; in Virginia it may take only four. Gap store managers on average make about $56,000.
This decent to the bottom is shocking in a state that was dubbed the education state in the early 1990s and was a model for the authorization of the No Child Left Behind Act. This is coming at the exact same time when Mississippi has introduced legislation to increase its starting teachers' salary from $31,000 to $37,000. Initial reports indicate this increase will pass with bipartisan support. Mississippi has various other progressive measures before the legislature (littered with a few regressive ones) that may pass as well. That moving education forward in North Carolina would be more difficult than Mississippi is hard to comprehend, until one realizes that opponents of traditional public education have turned the nation's education state into the nation's battleground.
Friday, January 24, 2014
Given the recent tumultuous times for the Philadelphia school district, this week’s announcement that 130 city educators have been implicated in a cheating scandal is not earth shattering. The cheating investigation, conducted by state education officials and the Pennsylvania Office of Inspector General, found a suspicious number of erasures and corrections of wrong to right answers on state standardized math and reading tests taken from 2009 to 2011. The test improprieties are alleged to have occurred at 53 Philadelphia area schools, about 20 percent of the total number of schools in the city. The 130 educators have been accused of providing students with answers, erasing wrong answers or supervising those who did without reporting them.
The Philadelphia school system, the nation’s eighth largest school district, has been under tremendous pressure for much of the year. As Derek has covered in this blog, Philadelphia’s schools were hard-hit by the state’s decision to change its education-funding formula from one based on the local costs of educating the district’s children to one based primarily on enrollment. Twenty-three schools were closed. Coupled with an overall $1 billion cut in the state education budget, Philadelphia schools came up well short of the money needed to operate and had to borrow $50 million to open its remaining schools in September. Principals were reduced to asking parents to pay hundreds of dollars per child to attend public schools. The budget crisis led to a $350 million deficit this school year, which created shortages of school nurses, counselors, security officers, and reduced special education services throughout the district.
Like their counterparts in the Atlanta cheating indictments last year, Philadelphia’s educators are under pressure to show gains in proficiency on high-stakes standardized tests. When those gains do not happen within a year or two, the incentive to cheat is strong. Cheating can mean saving jobs, avoiding being branded as a “failing” school, and winning bonuses and federal incentive funds when the students are deemed to be proficient in reading and math.
Thursday, January 23, 2014
Special education advocates are protesting the revival of a controversial bill in the Wisconsin legislature to give students with disabilities vouchers to attend private school. Four Wisconsin legislators announced a bill Tuesday that would give up to $14,000 per student for children with disabilities to attend private school. The legislators said that the vouchers would allow special needs students to leave failing schools and instead attend schools of their choice. Parents and advocates for special needs children have formed a grassroots effort called Stop Special Needs Vouchers (SSNV). SSNV says that the vouchers "would funnel critical taxpayer funding out of public schools and into private voucher schools which lack vital accountability." The group argues that the bill would exempt private voucher schools from complying with the standards in the federal Individuals with Disabilities Education Act (IDEA) and may leave children with disabilities without a school if the school cannot meet students' needs or suddenly closes, as Milwaukee’s LifeSkills Academy recently did. The group says that the LifeSkills Academy example is particularly important because as a private voucher school, it received $2 million in taxpayer funds then closed abruptly after only one of its students showed proficiency in reading on standardized tests in two years. The school's unannounced closure left its students scrambling to find new schools in the middle of the academic year. (LifeSkills' owners have moved on to open a special needs voucher school in Florida, where legislation for private school scholarships for special education students was passed in 2001.)
Wisconsin's previous attempt to provide private school vouchers to special needs children came under sharp scrutiny prompting a lawsuit and an advisory letter from the DOJ to Wisconsin's Department of Public Instruction in 2013 warning that "[t]he state cannot, by delegating the education function to private voucher schools, place students beyond the reach of the federal laws that require Wisconsin to eliminate disability discrimination in its administration of public programs." The measure was shelved then because of strong opposition. A paper by the National Council on Disability, School Vouchers and Students with Disabilities, supports SSVN's concerns. Two findings from the paper note the difficulty of using vouchers in private schools if the vouchers do not cover the cost of needed supports in students' Individualized Education Programs:" Because vouchers can only cover a portion of costs of special education over and above the cost of private school tuition in many cases, particularly for students with moderate, low-incidence and severe disabilities, such programs may benefit only the affluent who can afford to supplement vouchers to cover actual costs. Since school districts will lose students and a proportion of state funds due to transfers to private schools, it is possible that public schools will be left to serve only poor students with more significant disabilities, and at a reduced level of financial support. ...  The principle of school choice, and voucher programs in particular, have not been adequately shown to be internally consistent and mutually reinforcing with regard to the other three principles of IDEA reauthorization (accountability for results, increasing local flexibility, and a focus on what works) outlined by the U.S. Department of Education." Read more about the Wisconsin bill here.
Wednesday, January 22, 2014
Stephanie Simon's article in Politico Pro this morning explains a lot about the Jindal-DOJ-Voucher fiasco that I have posted on several times. Simon explores the new Republican agenda to attract minority voters through school choice. High profile congressional leaders have been pushing choice and the the Republican Growth and Opportunity Project included it as a fulcrum issue. They believe that, at the very least, talking about choice and opportunity for minorities will soften the party's image. Even if it doesn't equal minority votes, it could equal votes from moderates.
This concerted national agenda confirms the continual suspicion in my posts that something beneath the surface of Louisiana voucher case was driving Jindal's fervor. I had intimated it was simply his stumbling across an issue that provided a platform for a national spotlight. While it achieved that end, it now seems it was probably spurred on by the national party; remember the random editorial by the Chicago Tribune, the letters of support from Cantor, and the outside research by choice advocates. This effort now seems concerted, not happenstance. The party had likely been lying in wait to find a case it could blow out of proportion. All this effort, however, does not seem to account for the fact that this is not the first time the party has tried this strategy. As James Foreman detailed in The Rise and Fall of School Vouchers: A Story of Religion, Race and Politics, 54 UCLA L. REV. 547 (2007), the republican party and the religious right sought to use minority support as a means by which to present vouchers in religious neutral terms, but the movement for vouchers eventual fell apart because it was not genuine in its commitment to minorities and they recognized it. With that said, the increased availability and ease of charter schools also disincentivized voucher policies. Regardless, this means the Louisiana voucher fight will not be the last. Whether voters will be more receptive to the national agenda than last time remains to be seen.
The Louisiana 4th Circuit Court of Appeal recently upheld part of a judgment for 7,000 New Orleans teachers who were found to have been wrongfully terminated after Hurricane Katrina. The state appellate court found that the teachers were denied a state due process property right to be recalled after Katrina and ruled that the teachers could be awarded up to two years of back pay and benefits. The background is that after Hurricane Katrina in August 2005, the Orleans Parish School Board set up a call center for its teachers to determine which of them could return to work. The call center collected information for 7,000 teachers. That November, the Louisiana legislature created the Recovery School District (RSD) to take control of 102 of the 126 schools in Orleans Parish. Having few schools left, Orleans Parish dismissed the 7,000 teachers in a reduction-in-force. The problem, the 4th Circuit found, was not Orleans Parish's decision, but that state law required it to place the dismissed teachers on a recall list for two years, which the school board failed to do. The right to be on a recall list after a RIF is a substantive right under Louisiana law, the court of appeal found. The appellate court then reversed the lower court's findings for the teachers on tortious interference of contract.
The Louisiana Board of Education was found liable in the suit for a year of back pay and fringe benefits in addition to the judgment against the Orleans Parish School Board for two years of backpay, benefits, and costs--estimated by a state's attorney at $1.5 billion. Some observers are wondering if the suit could bankrupt the public school system. While the former teachers are unlikely to see such a sum, if the judgment will still be substantial if it survives further appellate review. (Before Hurricane Katrina, the school system payroll was around a quarter-billion dollars.) Because over 90 percent of the public schools are now independent charters, some observers, such as author Sarah Carr, wonder if the charter schools must contribute to the judgment. Carr, who wrote a book about New Orleans' schools titled Hope Against Hope: Three Schools, One City and the Struggle to Educate America's Children, told NPR on Friday that the post-Katrina RIFs significantly changed the city's teaching force: before Katrina, 75% of the teachers were black to now having more diversity; teachers also changed from tenured to temporary and from locals to newcomers. Read Oliver, et al. v. Orleans Parish School Bd., No. 2012-CA-1520 (Jan. 15, 2014), here.
Tuesday, January 21, 2014
Last week, two federal courts rules in cases that involved the lingering effects of segregation on contemporary education. Last Monday, U.S. District Court D. Judge Price Marshall of the Eastern District of Arkansas approved a settlement that will end the State of Arkansas’ obligation under a 1982 agreement to pay three Little Rock-area school districts to aid integration efforts. Since 1989, the Little Rock, North Little Rock and Pulaski County Special school districts have received over $1 billion over their state appropriations to remedy Arkansas’ resistance to desegregation, most notably when the Little Rock Nine integrated Central High School in 1957 and the closing of Little Rock’s public schools the year after. The Little Rock and North Little Rock districts have now been declared integrated with Pulaski County needing to repair some facilities. The settlement requires the state to make payments through 2017, with final-year funding earmarked for facility construction projects.
In I.L. v. Alabama, No. 11-15464 (11th Cir. Jan. 10, 2014), the 11th Circuit affirmed a district court’s denial of relief in a lawsuit that challenged the state’s education funding system. The 11th Circuit found in I.L. that two state constitutional amendments, which affect education funding in Alabama’s Black Belt counties, were financially and not discriminatorily motivated and thus did not violate the Fourteenth Amendment’s equal protection clause. The panel also found that while “impediments to public education funding arising from racially discriminatory state laws can constitute particularized and concrete injury for purposes of standing,” the plaintiffs could not meet the standing requirement of redressibility. The remedy that the plaintiffs sought—the removal of county and local millage caps on property tax—would have to be separately enacted, a result that is unlikely given county voters’ rejection of higher property taxes. Thus, the plaintiffs’ view that removing the caps would raise revenue for public education is speculative, the court found. In I.L., the plaintiff schoolchildren in Alabama’s Lawrence and Sumter counties sued to invalidate two sections of the state constitution that affect education funding: “millage caps (which limit the tax rate) and property classifications (which determine the property valuation rate used to calculate the amount of tax due).” The plaintiffs argued inadequacies created by amendments to the 1901 Alabama Constitution—that govern the state’s system of ad valorem property taxation—grew from taxpayers’ disinclination to pay for public education for black children after white schoolchildren were moved to private schools. Rejecting this claim, the 11th Circuit affirmed the district court’s ruling that the state’s system of education funding was financially, and not discriminatorily, motivated. The 11th Circuit held that the plaintiffs failed to show discriminatory intent because when the facially race-neutral property tax amendments were enacted, the resistance to property taxes for education came from farmers and timberland owners who feared large tax increases. The panel noted that while the U.S. Supreme Court has found that a provision of the Alabama Constitution violated equal protection because it was motivated by “overwhelming evidence of racial animus surrounding the Constitutional Convention of 1901,” that that finding did not involve the constitution’s property tax provisions. Hunter v. Underwood, 471 U.S. 222 (1985) (invalidating Alabama Constitution's felony disenfranchisement provision for persons convicted of crimes involving moral turpitude because discriminatory intent shown).
Like the Northern District Court of Alabama below, the 11th Circuit’s panel wrote of its concern about Alabama’s public education system:
Alabama continues to be plagued by an inadequately funded public school system — one that hinders the upward mobility of her citizens, black and white alike, especially in rural counties. . . . [As a result,] [t]he children of the rural poor, whether black or white, are left to struggle as best as they can in underfunded, dilapidated schools. Courts, however, are not always able to provide relief, no matter how noble the cause.
The Gainesville, Georgia School District has approved a measure that would allow their school resource officers to carry rifles. The deal came as part of an agreement with the local police department, which will share half of the cost of the safes in which the rifles are to be kept at school. The discussions began shortly after the Newton shootings, when the police department approached the district about safety measures. At risk of stating the obvious, it is problematic when police departments help set school policy, even when that policy pertains to safety. Police expertise is certainly important on such matters, but should not "steer the bus." This sounds like a militarization of an environment that is supposed to be education. Second, it has never been my understanding that any of these mass school shootings are a result of insufficient firepower at school. Rather the problem is that weapons entered the school in the first instance. I know Jason Nance has written a lot around these issues right in recent months. See here for his most recent article.
The trial court judge in Connecticut's pending school finance trial has rejected the state's request for a long postponement. The case raises the question of whether the state is meeting its constitutional obligation to provide a "suitable education" for every child in Connecticut. The plaintiffs, Connecticut Coalition for Justice in Education Funding, allege that the state's recent 2% increase in funding for education is insufficient to meet that obligation. As to the requested delay, the plaintiffs argued that the state's motion to postpone the trial until 2015 was a politically-motivated move to delay the trial until after the 2014 gubernatorial election. The has set the trial to begin on September 9th, 2014, which is in advance of the election. For more details, see here.
Friday, January 17, 2014
The Obama Administration's Misunderstanding About the Connection Between Higher Education and K-12 Diversity
Civil Rights advocates have been less than enamoured with the Obama administration's approach to diversity in K-12 education, but credit goes to the administration on higher education. DOJ's briefs in Fisher v. Texas--before the Supreme Court and on remand--have been forceful and creative in their defense of affirmative action. Yesterday, the administration continued to emphasize access to higher education as one of its top priorities. The Los Angeles Times billed yesterday's forum as an effort to "encourage economic diversity in higher education."
The administrations efforts are worthy of applause for their symbolism, but they overlook the crucial practical link between integration in K-12 and higher education access. One of the most significant factors in higher education attainment is not higher education policy, but the high school a student went to and the peer influences experienced there. Middle class schools have a culture and expectation of higher education attainment that does not require significant prodding from the outside. Minority students are disproportionately excluded from those schools and, instead, attend schools where graduating from high school is not even necessarily the dominant expectation. In these schools, selling students on college and making it a realistic goal is more of an uphill battle and requires outside influences, which are not nearly as effective (although surely worth the effort). In short, if the administration were serious about higher education access, it would think more seriously about its K-12 integration policy.
Thursday, January 16, 2014
The details are not all in, but South Carolina Governor, Nikki Haley, has unveiled a new budget that is pleasing most of the state's educators. This coming year, South Carolina expects to bring in an additional $200 million in tax revenues, based on economic growth. Gov. Haley is proposing that $160 million of that increase go to education. In education, the key question is more often how the money is spent, not just how much money is spent. As Education Law Center reports have shown, some states spend a lot of money, but it is disproportionately spent in wealthy districts that do not necessarily need it. Initial indications suggest Governor Haley is moving in the right direction on this question as well. The state's current education funding formula is outdated. She proposes to change it and drive an additional 20 percent in state funding toward high need students and districts.
The interesting side note here is that Haley, who has not been particularly popular in the state, is up for reelection. This move on funding could help her pick up education votes, particular those in the political middle, which would tend to go against her. But more important is the pending school finance case before the state supreme court. It ordered rehearing a year and a half ago because, at that time, the case had been on the court's docket for years and the underlying facts had changed so much. If Haley's proposal becomes law, the facts before the court would once again be stale. This portends two significant possibilities. First, the court once again fails to render a decision and all but drops the case, making itself effectively irrelevant in the protection of students' constitutional rights. Or, two, the court could issue a relatively strong decision, based on the old facts, indicating that the state must do more for education, but remand to the trial court for a remedy. At the trial court, the new facts would come in and show that the state had taken steps consistent with the supreme court's holding and, thus, no additional remedy is necessary. In other words, it would be much easier for the supreme court to articulate a meaningful constitutional standard when the state has already complied. This would theoretically make for good doctrinal precedent that could be drawn on later, but, as a practical matter, would beg the question of the supreme court's relevance.
Wednesday, January 15, 2014
Florida’s appellate courts recently upheld two school search cases finding that backpack searches for guns were reasonable. In R.M. v. State, a 6th grade student described an upperclassman (but did not know his name) who had shown a gun to students in the middle-school’s bathroom. A student fitting the description, R.M., was seen by the school resource officer and brought to the principal’s office. The principal questioned R.M. who admitted that he had a handgun in the bag. Later, the principal learned that the teacher believed that a student other than R.M. matched the description. Florida’s Third District Court of Appeals upheld an adjudication of juvenile delinquency against R.M., finding that the school officials’ actions were reasonable because they knew the informant and had the suspected student’s physical characteristics. R.M. v. State, No. 3D13-1245, 2014 WL 20628 (Fla. Dist. Ct. App. Jan. 2, 2014). These two factors and the seriousness of the contraband, a handgun, weighed in favor of the school being allowed to question R.M. and search his belongings. While students have privacy interests in items that they bring to school, the U.S. Supreme Court has held in New Jersey v. TLO, 469 U.S. 325 (1985), that students’ expectation of privacy must be weighed against schools’ interest in maintaining order and protecting students from violence. A school’s interest in protecting students promoted a second Florida court to uphold a juvenile adjudication for a gun brought to school, although the school relied on an anonymous tip to search the student’s property. In K.P. v. State, No. 3D12-1925, 2013 WL 6800973 (Fla. Dist. Ct. App. Dec. 26, 2013), a school resource officer searched a student's book bag at school, based upon an anonymous tip that the student was carrying a firearm. The Florida court first noted that the U.S. Supreme Court has held that a search based on an anonymous tip without independent corroboration violated the Fourth Amendment. J.L. v. Florida, 529 U.S. 266 (2000) (information in an anonymous tip that a black male at a bus stop was carrying a gun was insufficient to justify a public stop and frisk). However, the Court in J.L. stated that when a government interest was more immediate and substantial, such protecting school students, an otherwise unjustified search could be permissible under the Fourth Amendment. School investigations are “special need” searches that justify dispensing with Fourth Amendment’s warrant and probable-cause requirements. The Florida court found that the school’s interests in safety, given recent incidents of school violence throughout the country, outweighed K.P.’s privacy interests. Thus, even though there was no reliable basis for individualized suspicion in K.P.’s case, the school officials did not violate the Fourth Amendment by searching his bag.
Appellate Court Holds That Parents of Special Education Student Are Entitled to Tuition Reimbursement: School's After-the-Fact Promises to Afford Better Services Not Good Enough by Mark Weber
The Illinois Appellate Court issued a noteworthy special education decision on December 31, 2013. Jenna R.P. v. City of Chicago School District No. 299, No. 1-11-2247, 2013 WL 6869027 (Ill. App. Dec. 31, 2013), reversed a trial court decision that had denied a parent reimbursement for a private residential placement. The student had a history of social and emotional difficulties. In March of her first year in high school, the Chicago Public Schools found her eligible for special education with a designation of emotional disturbance and learning disability. Her Individualized Education Program called for a decreased course load and some resource room services, but she racked up many absences and failed five subjects. The district modified her IEP during sophomore year, intensifying the accommodations and assistance; nevertheless the absenteeism continued and she ran away from home the Spring of that year. Her father ultimately located her and placed her in an inpatient psychiatric hospital, then in a wilderness-based residential school in Utah. In June, the father contacted the person responsible for special education services at the public school to arrange a long-term plan to educate the student, but was told that the IEP team could not convene due to the end of the school year. In July, the father sent a ten-day notice to the district advising it of his plan to place his daughter at Elan School in Maine and obtain reimbursement. In late July, the director of due process wrote the father to say the district would not fund the placement. The student stayed there for three school years, ultimately obtaining a Maine high school diploma and admission to several colleges. During the time the student remained at Elan, the district and the father agreed to an additional evaluation, and during her last year at Elan, the school system revised her IEP to offer instructional accommodations, 30 minutes per week of social work consultation, and special education supportive services for 20 percent of the school day, all at a Chicago public school.
In response, the father requested a due process hearing. The hearing officer ruled that the public schools had denied the student free, appropriate public education, relying on overwhelming evidence she needed a small teacher-pupil ratio in a highly structured setting. The officer denied tuition reimbursement, however, pointing out that the student’s problems stemmed from parental management issues and runaway behavior, but arguing principally that the parent failed to place the student in the least restrictive environment, and that the public school had the capacity to place the student in a small, self-contained classroom or a private day school. The state trial court affirmed on the basis of the administrative record.
The appellate court reversed in an opinion by Justice Gordon, holding that the hearing officer made errors of law by relying on what the small, self-contained class the district could have provided, rather than what the school system actually offered in the IEP. The court adopted the view of the Second Circuit in R.E. v. New York City Department of Education, 694 F.3d 167 (2d Cir. 2012), limiting the public school to the IEP and evidence describing what it would provide, but not allowing reliance on services not actually offered by the school system in the IEP. It reasoned that the school system is not allowed to create a defective IEP, let the parent obtain a private
Tuesday, January 14, 2014
An Oklahoma legislator is making news with his introduction of a bill that would prohibit schools from suspended or taking other negative action against students for
I am definitely sympathetic to limiting the senseless suspension and expulsion of students who pose no real threat to school, but this bill may go too far. As I argue in my forthcoming paper "To End Zero Tolerance," constitutional principles should limit the expulsion of the student with, for instance, a pastry gun, but that is not to say the school is prohibited from taking any action against the student. This bill seems to suggest schools cannot do the latter either. Regardless, the immediate reaction of Oklahoma Education Association baffles me, as it seems to object to any limits on their authority to suspend and expel. Its president asserts that educators should be left to make these determinations on a case by case basis. If, in fact, zero tolerance was leading to case-by-case judgments, I might tend to agree, but zero tolerance has more often lead to a refusal by schools to consider circumstances. The rationale of suspending students with pastry guns has been that they violated the weapons policy and, thus, must be expelled. I hope to share my paper and the details of why this is constitutionally irrational within the next week or so.
Monday, January 13, 2014
Friday, the Eleventh Circuit affirmed the district court's holding in I.L. v. Alabama that the state's school funding was not discriminatory. The Eleventh Circuit's opinion primarily focuses on issues of jurisdiction and redressibility. In the final pages of the opinion, the court reaches plaintiffs' central claim: that several provisions of and two amendments to the Alabama Constitution were motivated by discrimination. In particular, plaintiffs claimed that the caps on education spending and otherwise generally low commitment to education trace back to Alabama's desire to disinvest in education once it realized it would have no choice but to desegregate its schools and their finances. (Similar claims were also made in a challenge to higher education funding in Knight v. Alabama, 476 F.3d 1219 (11th Cir. 2007)). The court acknowledged Alabama's sordid history, but indicated it could find no clear error in the the trial court's conclusion that these limitations on education "were a reaction to the increases in property appraisals and assessments mandated by [an earlier case], and the accompanying threat of a tremendous increase in the property taxes paid by land owners."
This case is unique in its attempt to explicitly link intentional discrimination with dismal school funding. As of yet, however, no modern plaintiffs have been able to sustain such a claim on a statewide level. The further in time they are removed from the original "deed" the more skeptical courts tend to become of the claim.
The full opinion is available here. Thanks to Scott Bauries for alerting me to the opinion.
Friday, January 10, 2014
A recent case of interest with regard to special education is P.J. ex rel. W.J. v. Katz, No. 10-3586-CV, 2013 WL 6726948 (2d Cir. Dec. 23, 2013). P.J. is an unpublished, nonprecedential ruling from the Second Circuit Court of Appeals. It concerned a consent decree entered in 2002 by a district court in Connecticut regarding education of children with intellectual disabilities (a term that has come to replace mental retardation). The defendants included the Connecticut Board of Education and Department of Education. The goals of the agreement as stated in its text were to increase the percent of students with intellectual disabilities in regular classes, decrease discriminatory identification of children as having intellectual disabilities, increase the portion of the school day children with intellectual disabilities spent with nondisabled students, raise the percent of students with intellectual disabilities attending the school they would attend if not disabled, and increase the percent of students with intellectual disabilities participating in extracurriculars with nondisabled students. Monitoring, outreach, and establishment of an advisory panel were required. The district court retained jurisdiction for enforcement of the agreement for five years, but the agreement restricted the jurisdiction to reviewing motions for substantial noncompliance in the subsequent three years. The court’s jurisdiction ended after eight years. The plaintiffs made a motion asserting substantial noncompliance in 2009, one year before the jurisdiction was to expire.
The Second Circuit affirmed orders from the district court that first denied a motion to compel discovery on the plaintiffs‘ 2009 motion and then denied the underlying noncompliance motion. The appellate court noted that the agreement required the defendants to provide nothing more than existing data to the plaintiffs for the final three years, and it upheld the district court’s finding that the defendants had not frustrated the essential purposes of the agreement. The essential purposes were limited to the goals enumerated in the decree; less consequential breaches did not matter, in the court’s estimation. The goals were numerical in nature, and the defendants showed numerical progress, even though progress slowed as time went on and easy gains were realized.
The case illustrates the reluctance of the courts of appeals to overturn district court decisions in the conduct of long-running litigation over systemic educational discrimination issues. In that respect, the case bears some similarity to Corey H. v. Chicago Bd. of Educ., 528 F. App’x 666 (7th Cir. 2013), a plaintiff-favorable decision that refused to decertify a class and vacate a 1998 consent decree that dealt with some of the same concerns of educating children with disabilities in the least restrictive environment. P.J. also demonstrates a somewhat inconsistent approach by the court as to how literally to read a consent decree. On the one hand, the restrictions on discovery and limits on jurisdiction were read quite strictly; on the other, provisions of the decree in aid of the basic goals, which plaintiffs said were violated, were read as not consequential enough to support relief.
The plaintiffs may well have achieved a great overall success from the litigation, even if the final result of the compliance effort was disappointing to them. With the expiration of the decree, new litigation could be filed to address continuing violations of the law.
Thursday, January 9, 2014
The last time we saw activity in the Louisiana voucher case things were deescalating. My reading of Jindal's comments then was that he was disappointed. This was a fight with DOJ that he was itching to drag out. Playing the victim served any number of local and national political ends. It took him six weeks, but Jindal figured out a way to revive the fight. Since there was not much more to say about vouchers (because DOJ is only asking for reporting data), Jindal has now moved to terminate the underlying desegregation order altogether.
The underlying order arose out of a 1976 case, Brumfield v. Dodd decision, in which Louisiana had facilitated white flight out of integrating public schools into segregated private schools--the same concern DOJ has with the current voucher program. The burden for terminating desegregation orders generally rests with the state, but in an interesting turn, Jindal's argument attempts to flip the burden. By his reasoning, unless DOJ can show the current program is violation, the state is entitled to terminate the standing order. As noted in earlier posts, the reason why DOJ has always, at least procedurally, been on the right side of this case is that, once a violation was found (in Brumfield), it is the state that must show its policies do not perpetuate segregation, not the plaintiff who must show that they do.
Given recent history, I am sure there will be something new to report soon.
Wednesday, January 8, 2014
In The American Prospect this week, Richard Rothstein reviews Stuck in Place: Urban Neighborhoods and the End of Progress toward Racial Equality, a new book by sociologist Patrick Sharkey. Cribbing from the article: Sharkey’s evidence shows that low-income black children in the United States tend to be concentrated at the low end of the poverty line and are more likely to live in poor neighborhoods for multiple generations, as opposed to white children, whose family poverty tends to be episodic. For example, 48 percent of black families have lived in poor neighborhoods over at least two generations, compared to 7 percent of white families, and young blacks are ten times more likely to live in a poor neighborhood than their white counterparts. Sharkey argues that “the consequences of multi-generational exposure to concentrated poverty in neighborhoods of considerable violence, unemployment, single parenthood, environmental degradation, and hopelessness” compounds the effects of being poor. Sharkey presents evidence that “living in poor neighborhoods over two consecutive generations reduces children’s cognitive skills by roughly eight or nine points … roughly equivalent to missing two to four years of schooling.” Sharkey’s findings shed light on the factors that have stalled progress to close the African American educational achievement gap. Stuck in Place should also encourage conversation on the efficacy of federal K-12 education policies. Read the article here.
Federal Guidance on Racial Disparities in Discipline Released, Calls for Vigilance in Enforcing Disparate Impact and Limiting Zero Tolerance
The new discipline guidance from the Departments of Justice and Education is now available here. The guidance breaks its analysis into disparate treatment (treating minority students and whites differently in terms of discipline) and disparate impact (a facially neutral policy that results in racially disparate outcomes). The first amounts to identifying and stopping intentionally discriminatory discipline. There is not much new here, but the point appears to be to encourage district to recognize that they may be treating similarly situated students differently without realizing it.
The disparate impact analysis is where the controversy abounds. It is directed at bringing down racial disparities in discipline even if there is no clear evidence of disparate treatment. I would posit there there is not any new substance in the guidance here either, but there is transparency and a clear signal that the Departments are serious about enforcing the substance. The guidance spells out very clearly how they will address racial disparities:
In determining whether a facially neutral policy has an unlawful disparate impact on the basis of race, the Departments will engage in the following three-part inquiry
(1) Has the discipline policy resulted in an adverse impact on students of a particular race as compared with students of other races? For example, depending on the facts of a particular case, an adverse impact may include, but is not limited to, instances where students of a particular race, as compared to students of other races, are disproportionately: sanctioned at higher rates; disciplined for specific offenses; subjected to longer sanctions or more severe penalties; removed from the regular school setting to an alternative school setting; or excluded from one or more educational programs or activities. If there were no adverse impact, then, under this inquiry, the Departments would not find sufficient evidence to determine that the school had engaged in discrimination. If there were an adverse impact, then:
(2) Is the discipline policy necessary to meet an important educational goal? In conducting the second step of this inquiry, the Departments will consider both the importance of the goal that the school articulates and the tightness of the fit between the stated goal and the means employed to achieve it. If the policy is not necessary to meet an important educational goal, then the departments would find that the school had engaged in discrimination. If the policy is necessary to meet an important educational goal, then the Departments would ask:
(3) Are there comparably effective alternative policies or practices that would meet the school’s stated educational goal with less of a burden or adverse impact on the disproportionately affected racial group, or is the school's justification pretext for discrimination? If the answer is yes to either question, then the Departments would find that the school had engaged in discrimination. If no, then the Departments would likely not find sufficient evidence to determine that the school had engaged in discrimination.
The report also focuses in on zero tolerance as one of the problematic sources of disparate impact and questions whether such policies for minor misbehavior are necessary to achieve educational goals. The report also goes into depth in explaining what the remedies it might require for call for violations.