Thursday, March 5, 2015
This past fall, I posted on the increasing number of states permitting, if not encouraging, teachers to carry guns at school. One of those teachers taking advantage of the law in Utah shot herself in the foot at school. I thought this movement would fizzle out. But a recent story by NPR suggests the opposite. Colorado State Representative Patrick Neville says his new proposed legislation would allow any "any law abiding citizen" to carry a weapon at school. (I wonder if he unintentionally excluded law abiding non-citizens, a more than insignificant group in Colorado). Legislative proposals are not necessarily shocking, but the fact that 50 percent of voters in Colorado support the idea is. The democratically controlled state house and governor are expected to block the measure, but the same is not true of a similar bill in Wyoming.
Wednesday, March 4, 2015
Supreme Court Hears Oral Arguments to Decide Whether Teachers Act as Law Enforcement Agents When Interviewing Children About Suspected Abuse
Although the confrontation clause case that the U.S. Supreme Court heard this week is not an education case, Ohio v. Clark has important implications for teachers who interview children under abuse reporting statutes. In Clark, the Court will review an Ohio Supreme Court decision that day-care teachers and social workers should be treated as law enforcement agents because of a statutory duty to report suspected child abuse or neglect. The case arose when teachers noticed that a three year old boy at daycare was bruised and withdrawn. The child reported to teachers that his mother's boyfriend caused the injuries. Further investigation revealed that the boy's younger sister also showed signs of abuse. The teachers and social workers testified at the boyfriend's trial about the child's report of abuse; the boy did not testify because of a state law presumption that children under age ten are incompetent to testify in court. The Ohio Supreme Court found that the teachers' testimony about the child's statements violated the defendant's confrontation clause rights. Lyle Dennison at SCOTUSblog posted an analysis of the oral argument in the case this week, excerpted below:
Prosecutor Meyer came to the Court with a simple proposition: because the teacher is not a police officer, and not working for the police, she should be allowed to take the stand and recount the boy’s tale. The Confrontation Clause, he argued, should only bar the use of evidence gathered by government agents if they don’t come to court. A private citizen, he meant in his closing comment, is “just not the same” as a government agent like a police officer.
But Stanford law professor Jeffrey L. Fisher, speaking for the man convicted for harming that boy, asked the Court to provide a simple opportunity: give defense lawyers the same opportunity to talk with the little boy as the teacher, the police, and the prosecutors had as they prepared evidence for the trial. There are ways to conduct an interview with even a small child, Fisher said, that will be sensitive and caring, and have a chance to test the reliability of any story the child told. Fisher’s own suggested approach to the Confrontation Clause was that, if an adult has heard the child’s accusations out of court, and was working within a system that ultimately leads those accusations to become evidence of a crime, the Confrontation Clause should govern.
The Fifth Circuit has granted rehearing en banc to review a panel's decision that a school's disciplining a student for off campus rights violated his First Amendment rights. In Bell v. Itawamba Cnty. Sch. Bd., a Fifth Circuit panel found that the school improperly disciplined a public high school student after he posted a rap song on the Internet criticizing two named male athletic coaches and accusing them of sexually harassing female students. The rap song was composed and posted off campus during a Christmas break. Upon learning about the song, the student was suspended by his high school and was transferred to an alternative school for the remainder of the grading period. Assuming arguendo that the school board could apply a defense under Tinker v. Des Moines Independent Community School District to off-campus speech, the panel found that the school failed to show that the song substantially disrupted the school's work or discipline process or that school officials reasonably could have forecasted such a disruption. The panel further concluded that the song contained no credible threat of violence that would rise to the level of a “true threat.” The panel directed the district court to award nominal damages and to order the school board to expunge all references to the incident from the student's school records. The panel decision is Bell v. Itawamba Cnty. Sch. Bd., 774 F.3d 280, 282 (5th Cir. 2014), reh'g en banc granted (Feb. 19, 2015); the Fifth Circuit's rehearing order is here.
Plaintiffs in Swainsboro Primary School in Emanuel County, Georgia, have filed suit against the district, alleging that daily prayers are held in the classrooms. They add that teachers pressured their children to participate and even punished them for not doing so. "[O]ne child was proselytized and the other felt so uncomfortable at school that [the] parents began home schooling the child." The parents parents complained, but allege the matters only worsened afterward. These are rather incredible claims, but if even a portion of them are true, they clearly represent First Amendment violations. School officials have not responded to requests for comment.
See here for more on the Swainsboro story, as well as other school prayer disputes currently under review.
San Francisco Unified School District has been increasing school choice for parents in recent years. With it has also come an increase in racial and socioeconomic segregation. Kristin Decarr explains, "Although schools in the district are no longer as segregated as they were in 1966 when one-third of schools had 80% of their students represent one race, they are beginning to segregate once again. More than 25% of schools in the city count 60% of their students within one race." A district official cites two potential causal factors. First, the choice policies and procedures "may be difficult for low-income families to decipher and navigate. . . .[T]he application process is long and requires parents to not only have a good understanding of the English language but also access to technology." Second, the limited availability of free transportation within the district may deter low-income students from going to schools beyond their available bus routes. As a result, school choice in the district has come down to more affluent and highly educated parents competing for seats in the best schools, while low-income and minority families end up placed in under-performing schools. One member of the San Francisco Board of Education remarks, "Choice is inherently inequitable . . . . If you don't have resources, you don't have [a] choice."
This outcome, however, is ironic and unnecessary. The District's official student assignment policy from 2010 states the following as its number one priority:
Reverse the trend of racial isolation and the concentration of underserved students in the same school[.]
Tuesday, March 3, 2015
Most people are hearing about the Alabama Supreme Court for a different reason this week, but the court also upheld the constitutionality of the state's tax credit law for school scholarships yesterday. The state supreme court rejected a challenges to the bill's constitutionality on the grounds that the law diverted public funds for private education, put more than one subject in a bill, and cost $40 million in annual tax credits. A state judge struck down the Alabama Accountability Act as unconstitutional last spring. The law, called the Alabama Accountability Act, gives tax credits for parents who move their children from failing public schools to private schools. The law's reality as we posted here, is that tax credits do not benefit students in "failing" schools when they have no access to alternative non-failing public schools or private schools in their area. Thus, according to the Alabama Revenue Department, fewer than 100 students in failing schools statewide used the credits to transfer to private schools, despite there being 78 schools on the failing schools list. Read the court's recent opinion here.
Los Angeles Unified School District, the nation's second largest school district, is the epicenter of the nation's fight over teacher tenure, with plaintiffs arguing that tenure rights that prevent schools from removing ineffective teachers violate students' constitutional right to education. (More here). In this context, it is no surprise that labor negotiations between the district and its teachers are unusually tense. Last week the teachers' union indicated they had reached an impasse with the state. The next step would be mediation, which could be followed by a strike if deal is not reached.
Teachers are requesting an 8.5% salary increase and the district is offering 5%. The district is claiming a lack of funds to meet teachers' request, and teachers are emphasizing that their pay has been frozen and even decreased over the past 8 years, even for those teachers who would have otherwise received bumps based on experience or education credits. Thus, a sizable increase is only reasonable, they argue. The union is also requesting new hires and smaller class size.
Monday, March 2, 2015
Parents in Coleman A. Young Elementary in Detroit received letters last week indicating that the parents' children would be suspended if they did not attend a meeting at school. Apparently, the school recently held a group meeting to discuss preparation for upcoming standardized tests. Attendance at the meeting was low, in part, because the meeting was during the work day. This second meeting is to be during the work day as well, and is for those parents who missed the first one.
School officials have responded that the letter threatening suspension was sent by teachers, not the school district itself, and it was simply an attempt to convey the importance of the meeting and upcoming examinations. I personally found the response, at least as reported by the media, as lukewarm. It is rare that courts second guess discipline, but carrying out this type of threat would be clearly unconstitutional. Suspending a student who has not engaged in any misbehavior would be entirely arbitrary and irrational and, thus, violate substantive due process.
Friday, February 27, 2015
This week, the parties in Sheff v. O'Neill reached an agreement to expand the state's inter-district integration remedy. An additional one thousand seats will become available in Hartford's magnet school program, for which students from the suburbs may apply. An extra 325 seats will also become available in the suburban districts for Hartford city students to fill. This extended and expanded remedy flows from the Connecticut Supreme Court's seminal decision in 1996 in Sheff, holding that the extreme racial isolation in Hartford's schools, and the state-drawn district lines that locked those students in, deprived the students of the state constitution's guarantee of equal educational opportunity. This inter-district program is the one the New York Times has been referencing in recent weeks as a model for New York to consider in addressing its own extreme segregation.
The Sheff Movement coalition is organizing two briefings this coming Monday. It offers this primer:
The Sheff school integration plan is one of the best things happening in Connecticut right now. Tens of thousands of children are benefiting and many more could benefit if the state took a more ambitious approach. The Sheff Movement coalition is disappointed at the slow progress represented by this one-year plan - but we are encouraged that the parties are committed to a new mediation process to set long term goals. We hope the governor can bring the same kind of ambitious vision to quality integrated education as he has shown in his plans for the state's transportation future.
Thursday, February 26, 2015
Earlier this year, I posted on the strong shift in approach to reauthorization of the Elementary and Secondary Education Act and how it was placing the federal role in education in jeopardy. Such a shift would have undone much of the work of the past two decades to increase the federal role in education (putting aside whether that work was substantively good or bad). Secretary Duncan's comments at the time demonstrated strong objections to that approach, from which one might have inferred that the President would veto legislation that sought that end. Since then, Republicans have pressed on in their intent to change the federal role. Yesterday, President Obama explicitly indicated that he would veto the current bill that is under consideration. See more here. Now that the veto question seems to be answered, will the parties go back to the drawing board or move forward for the sake of posturing? If the latter, it seems we will not see a reauthorization of ESEA any time soon after all.
Wednesday, February 25, 2015
My Dynarksi's recent essay summarizes new studies on teacher mobility, particular the mobility of high quality teachers. A North Carolina study and federal pilot program demonstrate the capacity of public policy to incentivize some teachers to move where they are most needed. From these findings, he proposes that the Elementary and Secondary Education Act require schools to monitor teacher effectiveness and reassign them based on effectiveness.
The Institute of Education Sciences tested something like this approach on a small scale. As part of its study, high-performing teachers were offered financial incentives to move to low-performing schools. Only one or two teachers were moved to any one school. The study found that high performers resulted in an improvement of an entire grade level’s test scores. If the high performer were a fifth grade teacher, for example, the entire fifth grade improved its test scores from fourth to fifth grade. The high performer’s class generally improved the most, but that improvement was so large it was enough to move the whole grade level up.
This fix is about as low-risk as one can get to improve performance of a whole school, like ensuring the U.S. wins an Olympic gold medal in basketball by putting ten NBA all-stars on its team.
Tuesday, February 24, 2015
This past summer the trial court in Vergara v. State struck down California's tenure statutes and its last-in-first-out rules for layoffs. A copycat suit followed in New York shortly thereafter. You can find posts on those cases here and here. Given the momentous nature of the case and the litigants' intent to spread the theory across other states, serious consideration of the issues the case and theory raise are incumbent. Here is a summary of my analysis:
Reformers argue that ineffective teaching is the linchpin of educational inequality and failure. Starting in 2010, they successfully sought important changes in teacher evaluation systems at the state and federal levels. But a fundamental source of teachers’ strength to resist more aggressive reform remained in place: tenure. Thus, in 2012, reformers theorized a novel constitutional strategy to eliminate tenure. They argued that tenure leads to the retention of ineffective teachers, and that ineffective teaching deprives students of the constitutional right to education embedded in state constitutions. This theory immediately caught hold, with a California trial court striking down tenure in 2014 and litigation commencing in other states weeks thereafter.
The outcome of this litigation movement will determine both the future of the teaching profession and the scope of the constitutional right to education. To date, however, no high court or scholar has thoroughly analyzed the theory. This article offers that first analysis, concluding that the constitutional challenge to tenure raises a theoretically valid claim, but lacks a sufficient empirical basis. At the theoretical level, the tenure challenge easily falls within broadly worded precedent that establishes students’ constitutional right to an equal and adequate education. If ineffective teaching deprives students of equal or adequate education, state constitutions should protect against it. But in the context of school funding cases—where the relevant precedent was first developed—courts have demanded that litigants precisely demonstrate multiple aspects of causation and harm. Evidence on those points is lacking in regard to tenure.
This split between theory and fact requires courts to proceed cautiously. Rejecting current tenure challenges on their face would unfairly prejudice future legal challenges to teacher quality, particularly those predicated on potential empirical advances in social science. A facial rejection would also require courts to narrow the existing scope of the constitutional right to education. This narrowing would negatively affect education rights in other important and developing contexts. The solution is to insist on more detailed evidence to support plaintiffs’ causal theories and presumed remedies. By doing so, courts can validate students’ constitutional right to education without venturing into unsettled policy debates.
My full analysis and article, The Constitutional Challenge to Tenure, are available here.
The Paterson (NJ) Public Schools reportedly has had problems for years in delivering special education services, and the New Jersey Department of Education has again cited the district. The NJDOE's latest action was prompted by a lawsuit filed by a school psychologist who alleged that her supervisors directed special education staff members to change students’ Individualized Education Programs (IEPs) without their parents' approval. The NJDOE previously cited the Paterson Public Schools in 2011 and 2013 for failing to provide adequate special education services, prompted by lawsuits by the Education Law Center. Read more here.
Thursday, February 19, 2015
Nearly two years ago, I posted on a bizarre case, Hill v. Madison County School Bd., 2013 WL 3712330 (N.D.Ala.,2013), in which a student had been sexually harassed by another on multiple occasions. The student apparently had harassed several other students as well. The school's solution was purported to catch the harasser in the act, so that it might exact a full punishment on him. Thus, two teachers convinced the plaintiff to agree to the harasser's proposition to meet him in the bathroom. They notified the principal of their plan. The plan, however, went awry because no one came to the bathroom in time. By the time the teachers arrived, the boy had already pulled down the girl's clothes and attempted to have sex with her against her will. She then filed a lawsuit against the district under Equal Protection, Title IX, Substantive Due Process, and state law.
The trial court rejected her claims. The case has finally made its way to the 11th Circuit Court of Appeals. Because the victim is no longer a minor and her identity has gotten out, the media coverage is beginning to heat up. CNN recently conducted an interview with the victim. As my prior post notes, the precedent on these types of cases is very unfavorable to plaintiffs. If every there were a case to create a crack in that precedent, however, this may be the one.
Wednesday, February 18, 2015
The Education Law Association invites proposals for its November 2015 conference in Cleveland, Ohio on topics and perspectives that may be underrepresented in ELA conference programming or that reflect the full range of ELA’s membership (e.g., higher education and K-12, private and public schools, plaintiff side as well as defendant). Proposals will be favored that include presenters from multiple membership constituency groups (e.g., professors, attorneys, administrators). Prospective presenters are strongly encouraged to use the ELA Facebook and LinkedIn groups to note your own interest in presenting on a topic in order to gauge the interest of other prospective presenters on the topic you are considering, to identify topics for which no one else appears yet to be considering submitting a proposal, and possibly to identify co-presenters. Submit a proposal here.
Richard Kahlenberg thinks so. In a new essay in the Atlantic, Saving School Choice Without Undermining Poor Communities, he discusses the Republican insistence on increasing school choice and making Title I funds portable in the proposed reauthorization of the Elementary and Secondary Education Act. Democrats are resisting portability. Moving money to private schools would undermine public education itself, while moving money within public schools could lead the the rich schools becoming richer while the neediest become poorer.
Kahlenberg points out that socio-economic integration has proven to be a more effective and cheaper means of improving educational outcomes than increasing funding in high poverty schools. The "principle of portability, in fact, has in it the seeds of a solution to reduce economic segregation through public-school choice—if, and only if, portability is properly structured. In order to accomplish this, portable federal Title I funding, as well as state and local funding, would need to be weighted heavily enough to give poor kids sufficient money in their 'backpacks' that middle-class public schools would want to recruit them to attend."
Current proposals offer too little in the way of financial incentives to fundamentally alter student enrollment trends. "But," Kahlenberg remarks, "every school has his price. What is the magical amount of extra money low-income students should have in their backpacks to be attractive to middle-class schools? That’s an empirical question that surveys of school administrators could answer definitively. Meanwhile, past experience shows that financial arrangements can be made to assuage middle-class schools."
An important piece of the puzzle that no one other than Kahlenberg is hitting upon is the need to hold the original school harmless. If the program actually grew to the point where it was leading to substantial transfers, the remaining students in the high poverty schools would be harmed through no fault of their own, as Democrats fear. The easy--albeit costly solution--is to expand the financial pot and allow the high poverty schools to retain, at least, a portion of their funding. Kahlenberg notes that the political and practical success of the St. Louis, Missouri, interdistrict transfer program was due the fact that it both incentivized suburban districts to take urban students while also protecting the urban schools left behind. "The state also set aside some financial aid for St. Louis schools to offset the loss of funding to its urban campuses."
Of course, the devil is in detail. For a more detailed discussion of how Congress might use Title I funds to both integrate schools and meet existing need in high poverty schools, see pages 366-371 of this article. The question is not whether we can do this, but whether a critical mass in Congress is willing to acknowledge the solution and entertain a meaningful compromise between the competing positions.
Tuesday, February 17, 2015
"As part of its work to conduct a congressionally mandated national assessment of how well the IDEA is achieving its purposes, the U.S. Department of Education's Institute of Education Sciences (IES) contracted with American Institutes for Research (AIR) to investigate variation in school practices through the Study of School Accountability for Students with Disabilities." That study is now available here. The study provides "policy-relevant" information on how students with disabilities are being educated "by examining their inclusion in school accountability systems, and the use of school practices that may relate to their educational outcomes, in both schools that are accountable and schools that are not accountable for the performance of the SWD subgroup." The study aims to answer the following questions:
- How do school characteristics and staffing differ between SWD-accountable and non-SWD-accountable school?
- How do school programs and student support strategies differ between SWD-accountable and non-SWD-accountable schools?
- How do instructional time and settings differ between SWD-accountable and non-SWD-accountable schools?
- How do teacher collaboration and professional development differ between SWD-accountable and non-SWD-accountable school?
Monday, February 16, 2015
The Schott Foundation has released its 5th edition of the 50-State Report on Public Education and Black Males. Explaining this focus, John Jackson remarks:
While all lives matter, we cannot ignore the fact that, as this reports once again reveals, Black male students were at the bottom of four-year high school graduation rates in 35 of the 48 states and the District of Columbia where estimates could be projected for the 2012-2013 school year (Latino males are at the bottom in the other 13 states). This fact provides clear evidence of a systemic problem impacting Black males rather than a problem with Black males. Simply stated, while most will say Black lives matter and are important, the four-year graduation results in this report indicate that most states and localities operate at best, and have created at worse, climates that often don’t foster healthy living and learning environments for Black males.
It is widely accepted in policy and administration that you measure what matters. Yet, as we highlight in this report, in most states and localities it is easier to find data on the incarceration rates of Black males than their high school graduation rates, or any other data that reinforces Black males’ positive attributes.
But he also adds:
although this report historically focuses on Black males (and state level data on Latino males), we highlight in each edition the systemic disparities that are identifiable by race, ethnicity or socio-economic status impact all.
A summary of the findings indicates:
Black males graduated at the highest rates in Maine, Idaho, Arizona, South Dakota and New Jersey — each with estimated graduation rates of over 75%. The majority of the states with the top ten highest Black male graduation rates have smaller than average Black male enrollment. New Jersey and Tennessee were the only two states with significant Black male enrollments to have over a 70% Black male graduation rate.
[S]ates with the lowest estimated graduation rate for Black males [include] Georgia, Michigan, Ohio, Louisiana, Indiana, Mississippi, South Carolina, Nebraska, the District of Columbia and Nevada, each at 55% or less.
With over a 25-percentage point gap respectively, Connecticut, New York, Michigan, Illinois, Indiana, Ohio, Nebraska, Nevada, Minnesota, Pennsylvania and Wisconsin have some of the largest gaps between the Black male graduation rate and the White male graduation rates. The majority of the states with the largest gaps are in the Midwest region of the country.
The the full report and supporting materials here.
Friday, February 13, 2015
Yesterday, Advocates for Children of New York released, Civil Rights Suspended: An Analysis of New York City Charter School Discipline Policies. Based on a review of 164 New York City charter school discipline policies obtained through Freedom of Information Law requests, the report finds that "[a] significant number of City charter schools have discipline policies that fail to meet the legal requirements, leading to violations of students’ and parents’ civil rights. The report includes recommendations for state legislators to consider as they discuss raising the cap on charter schools and ensuring that charter schools serve high-needs students."
“We hear from parents who celebrated winning the charter school lottery only to have their students face repeated suspension or expulsion from school with no opportunity to challenge it,” said Paulina Davis, AFC Staff Attorney. “Students do not give up their civil rights when they enter charter schools. We urge the State to ensure that all charter schools have discipline policies that meet legal requirements.”
Recognizing this problem two years ago, Advocates for Children also released a practical how-to guide for families how are experiencing or have experienced suspension at a charter school.
Thursday, February 12, 2015
New Jersey State Court Finds That Pledge of Allegiance Statute Does Not Violate the State Constitution
A New Jersey Superior Court found this month that a state statute requiring schoolchildren to recite the pledge of allegiance (and its "under God" phrase) did not violate the state constitution's equal protection and establishment clauses. Given that the Massachusetts Supreme Court decided a similar case last May (Jane Doe v. Acton-Boxborough Regional School District), the more recent ruling adds to the cases finding that the pledge of allegiance ceremonies in schools are constitutionally permissible. In the February 2015 case, American Humanist Ass’n v. Matawan-Aberdeen Reg. Sch. Dist., the lead plaintiffs were parents of schoolchildren who challenged New Jersey's pledge statute that required schools to include a salute to the U.S. flag and recitation of the pledge of allegiance each day. The plaintiffs, along with the American Humanist Association, alleged that children who do not participate are nevertheless having the pledge's religious language imposed on them and could suffer exclusion if they choose not to participate. The state court found that the statute did not implicate children's religious freedom because participation in the pledge is voluntary. The court also found that expunging the words "under God" from the pledge was unnecessary because the purpose of public schools is to foster ideas without requiring students to adhere to them. The court rejected the equal protection claim, finding no proof that the plaintiffs' children were discriminated against because of their beliefs. Read American Humanist Ass’n v. Matawan-Aberdeen Reg. Sch. Dist., No. 1317-14 (N.J. Super. Ct. Feb. 4, 2015) here.