Thursday, March 26, 2015

Suspensions Down and School Safety Climate Up in Chicago Public Schools

The University of Chicago Consortium on Chicago School Research has released its newest report on discipline in Chicago public schools.  The reports are monitoring the efficacy of Chicago's move away from harsh discipline toward more restorative justice practices.  It is not all good news, as suspension rates are still high, but the general trend is positive and discipline rates continue to fall. Alex Nitkin offers this summary:

[The report] found that students and teachers report feeling safer as harsh discipline practices have eased. That’s another good-news finding, since some observers feared that cutting arrests and suspensions would worsen school climate and security.

However, the report also notes that Chicago still has a lot of work to do to further reduce suspensions of young black men, who are still the most likely to be kicked out of school for discipline reasons. One-third of black males received an out-of-school suspension last year, compared to 13 percent of Latino boys and 6 percent of white and Asian boys.

Other Consortium findings:

    • Some schools are replacing out-of-school suspensions with in-school suspensions: Out-of-school suspensions for black male students declined by about 3 percent, while in-school suspensions rose by 7 percent. Most other groups also saw slight increases.
    • Most suspensions in high schools are handed down for “defiance,” with only a third the result of fights or other threats to safety. The report notes that with so few suspensions for physical altercations, schools probably have more room to cut suspensions without compromising safety—but teachers need training on how to deal with students they perceive as being disrespectful.
    • The overall arrest rate for high school and middle-grades students was 2 percent, but the rate for black males was double that, according to Chicago Police Department data analyzed by the Consortium. Schools called police for just 43 percent of serious incidents that require police notification under the district’s discipline code.

One troubling fact is that the Consortium still could not get access to complete discipline data from charter schools.  This missing data, of course, is also crucial to yesterday's post about comparing urban charters' academic achievement to that of traditional public schools.

March 26, 2015 in Discipline | Permalink | Comments (0)

Wednesday, March 25, 2015

Local School Boards Sue Tennessee Over Underfunding

In a fourth challenge to Tennessee's school funding system, seven county boards of education sued the Governor and the State of Tennessee in Hamilton County Bd. of Educ. v. Haslam, filed on March 24. The plaintiffs are asking a state court to find that the state has neglected its duty to fund public education under the Tennessee Constitution. The plaintiffs, according to a release by the Education Law Center, are asking for relief on several claims, including "an unfunded mandate claim [] based on what plaintiffs state are extensive additional and costly responsibilities placed on schools by the state with no funding to cover them." The plaintiffs also allege that the state ignored its responsibility to fund 75% of classroom costs; the plaintiffs allege that the state is only funding about 70%, resulting a $134 million shortfall. The plaintiffs further claim that the state has failed to phase in funding under laws passed to comply with previous judgments in three school funding cases, Tennessee Small School Systems v. McWherter I, II, and III), which they allege resulted in additional funding shortfalls of about $600 million. (For more on the Small Schools litigation, see the National Education Network here.)  

March 25, 2015 in Cases, School Funding | Permalink | Comments (0)

Where Are All of San Francisco's White Students? Either Concentrated or Fleeing

Following up on recent stories about racial isolation in San Francisco's public schools, Priceonomics.com put its statistical prowess to work on the issue and produced some interesting analysis and inferences.  While at the district level white students are grossly underrepresented in the the public schools, there is a significant amount of uneveness across individual schools and grade levels.  They found significant white enrollment in elementary school, but significant drop-offs there after.  At the elementary school level, they found "

the spread of the distribution is astounding. Half of San Francisco’s elementary schools have a student population that is 13% white or less. A few elementary schools are over 50% white, while a quarter of elementary schools are under 3.3%.

. . .

So while elementary schools may appear to be more diverse than middle and high schools, this is deceptive: The white students in the district are clustered into a handful of elementary schools -- such Grattan (which is 56% white), New Traditions (52%), and Miraloma (52%.)

According to Public Press, more affluent families tend to be savvier at the admissions process, and also tend to have the luxury of more flexibility with their preferences. For example, they’re more likely to be willing and able to transport their kids across town every day, if it means attending a particular school. “We have options,” one parent told Public Press, about the kindergarten admissions process. “We can send our kids to private schools. We can travel across town. Not every parent can.” 

Those options usually don’t go away as a student ages. If at any point the process doesn’t shake out the way an affluent parent wants, they can just drop out, and shell out for a private education for their child. And, the data suggests, that’s exactly what they do.

More here.

March 25, 2015 in Racial Integration and Diversity | Permalink | Comments (0)

Are Charter Schools Finally Outperforming Traditional Public Schools?

Probably not, but the news stories surround the most recent charter school study by the Center for Research on Educational Outcomes (CREDO) would have the public believe so.  CREDO's studies have been a center point in the debate over the efficacy of charter schools since 2009. Charter school advocates used the 2009 study to demonstrate that some charters (17% to be precise) were outperforming traditional public schools.  Those advocates ignored the 37% that were under-performing in comparison to traditional public schools.  Charter school skeptics hammered that point and backed it up with subsequent studies.

CREDO's second report in 2013 was more equivocal than the first and moved in a direction to the liking of charter schools.  Rather than focusing on raw performance, it sought to identify educational improvement, finding that charter schools in general were showing more growth than traditional public schools. Some argued that larger growth was potentially easier because charters were starting from a lower baseline. The changed frame of analysis also elicited criticism from both sides regarding the methodology of the study.

CREDO is now out with its 2015 report, and it equivocation is all but gone.  The study finds that "urban charter schools in the aggregate provide significantly higher levels of annual growth in both math and reading compared to their TPS peers. Specifically, students enrolled in urban charter schools experience 0.055 standard deviations (s.d.’s) greater growth in math and 0.039 s.d.’s greater growth in reading per year than their matched peers in TPS. These results translate to urban charter students receiving the equivalent of roughly 40 days of additional learning per year in math and 28 additional days of learning per year in reading."

This finding was met with applause by education reformers, charter school advocates, and the business community.  It was met with keen interest by the media.  It has been met largely with silence from those formerly critiquing charters (or they have been unable to capture headlines). Does this study and the silent reaction to it mean that charter schools have finally matured and are demonstrating superiority over traditional public schools?  Is the debate, in effect, nearing resolution?  Not so fast, says Bruce Baker.  We still must compare apples to apples, and it is not clear that CREDO has done that.

Those seeking to demonstrate charter superiority have almost always compared apples to oranges.  If the student demographics of charters differ from traditional public schools, raw achievement scores between the two cannot be accurately compared.  Responding to this problem, newer studies, including CREDO's, have attempted to account for differing student demographics.

But CREDO's new study may have done both too much and too little in this regard.  CREDO's  new study narrows the field further than every before, largely in the attempt to triangulate some area of advantage for charters.  The new study does not compare charters and traditional public schools on the whole, but only urban charters to urban traditional public schools. That comparison is probably correct, but, of course, those are not the only charter schools in operation.  Thus, at best, the study suggests that under certain circumstances, charters outperform traditional public schools.

Bruce Baker, however, says the new study still presents a distorted picture in regard to student demographics, even when narrowed to urban schools.  The variables the study uses to "match" an urban public school to a charter for comparison "are especially problematic."  It is inaccurate to treat charters' "poor kids" as equivalent to traditional public schools' "poor kids."  And it is, likewise, inaccurate to assume that charters' special education kids are the same as traditional public schools' kids.  In fact, there is a lot of variation within those two categories, and charters may very well have the most advantaged students within those otherwise narrow groups.  Baker further explains: 

Newark data are particularly revealing of these problems.  Charters undersubscribe the poorest students and oversubscribe the less poor, but CREDO treats those kids as matched anyway...

Charters undersubscribe high need special education kids and oversubscribe mild learning disabled (as a share) but CREDO treats those kids as matched.

This creates a severe bias in favor of charters in Newark and in many other cities with similar sorting patters and high average poverty rates.

This perhaps provides partial explanation for why CREDO tends to find stronger charter effects in poor urban centers than, say in suburbs, where their matching measures - at least for income status - would potentially be more useful.

The point is that the virtual record comparison asserts that these kids are otherwise similar, and thus the gains are somehow attributable to "charter" schooling as a treatment. This assertion is deeply flawed at two levels. First, the as noted above the variables they are choosing for matching are nearly useless. They don't necessarily identify similar kids at all. Nearly all kids fall below the income threshold they are using and thus they might label as "matched" (likely do in fact) a kid in deep poverty/homelessness, etc. in a district school with a kid marginally below the reduced lunch cut point in a charter. They might also label as "matched" a mild specific learning disability kid in a charter (since that's all they have for disability) with a far more severely disabled kid in a district school (where district schools have disproportionate shares of those kids now because charters have siphoned some of the less needy spec ed kids).

The second level problem here is that the CREDO study doesn't then account separately for who these kids attend school with - the peer effect. It conflates that effect with "school" effect, by omission. 

Deep stuff.  It is probably deeper than the average reporter cares to consider, which might explain some of the silence.  But these distinctions are crucial in understanding the new CREDO report and suggest the charter school debate is far settled.  The National Education Policy Center has commissioned a review of the CREDO study that will add further clarity to the debate.  That review should be available later this spring.

March 25, 2015 in Charters and Vouchers | Permalink | Comments (0)

Tuesday, March 24, 2015

Wisconsin AG Petitions In Support of Law Giving Governor Powers in Education Rulemaking

Wisconsin Attorney General Brad Schimel has petitioned the state supreme court to reverse a finding that a new state law unconstitutionally removed powers from the state Superintendent of Public Instruction (SPI) in favor of the Governor. The law, called Act 21, required that the Governor approve the scope and drafts of new administrative rules proposed by the state education superintendent. In February, the Wisconsin Court of Appeals found that Act 21 unconstitutionally took away the SPI’s supervisory rule making power in public education. The case is Coyne v. Walker, No. 2013AP416, 2015 WL 686178 (Wis. Ct. App. Feb. 19, 2015).

 

 

March 24, 2015 in Cases, News | Permalink | Comments (0)

When Students See Inequality First-Hand

This American Life ran a story last night, Three Miles, on a program "that brings together kids from two schools. One school is public and in the country’s poorest congressional district. The other is private and costs $43,000/year. They are three miles apart. The hope is that kids connect, but some of the public school kids just can’t get over the divide."   Chana Joffee-Walt  tells the story and allows us to listen to what happens when students get to see the other side and it looks a lot better.  She not only describes poor students’ immediate reaction to seeing the rich school (one spontaneously bursts into tears) but also follows up on them ten years later and reports on how that experience affected their going—or not going—to college (or going and failing out, as several unfortunately did). 

Although not emotionally raw, this story also reminds me of James Ryan's similar lens of analysis in Five Miles Away, A World Apart, which describes segregation over time in Richmond, Virginia.

March 24, 2015 in Racial Integration and Diversity, School Funding | Permalink | Comments (0)

Zero Tolerance and Harsh Discipline Increases Drug Use, New Study Finds

A steady stream of studies have demonstrated zero tolerance and harsh discipline policies do not achieve their goals.  They do not improve student behavior.  They do not make schools safer.  In some instances, they just make matters worse.  Those studies have tended to focus on the aggregate school climate.  A new study makes far more specific and shocking findings, so shocking that one might struggle to process them.

Tracy  Evans-Whipp and her co-authors' new study, Longitudinal Effects of School Drug Policies on Student Marijuana Use in Washington State and Victoria, Australia, finds that the:

Likelihood of student marijuana use was higher in schools in which administrators reported using out-of-school suspension and students reported low policy enforcement. Student marijuana use was less likely where students reported receiving abstinence messages at school and students violating school policy were counseled about the dangers of marijuana use.  

Suspending kids actually increased the odds of drug use by 60 percent-- even for kids who weren't suspended, but attended the school were suspension was the policy.  "That was surprising to us," said co-author Richard Catalano in a press release. "It means that suspensions are certainly not having a deterrent effect. It’s just the opposite." And according to Catalano and his colleagues, suspensions "related to unintended negative outcomes for the suspended student, such as disengagement from school, delinquency or antisocial behavior, smoking, and alcohol and drug use."

March 24, 2015 in Discipline | Permalink | Comments (0)

From Segregation to Incarceration

The Arkansas Law Review's symposium issue on education (presumably celebrating the 60th Anniversary of Brown v. Board of Education) is now available on westlaw.  The essays and articles offer a historical narrative spanning from segregation to current policies that divert funds and attention away from the education of poor and minority students to incarceration. Each is summarized below.

Peter C. Alexander, Seeking Educational Equality in the North: The Integration of the Hillburn School System​, 68 Ark. L. Rev. 13 (2015).

Peter Alexander, uses the example of his small hometown of Hillburn, NY to discuss the history of segregation and integration in the north. Alexander points out that "[m]uch attention has been paid to segregated schools in the South, but surprisingly little has been written about segregated schools that existed north of the Mason-Dixon Line." However, even racially-diverse, small northern towns like Hillburn, which has a population of only about 1000 people, had segregated schools. "Curiously, the local high school was in the neighboring village of Suffern, New York, and it was integrated; however, children in the Hillburn schools were divided by race until the ninth grade." Nevertheless, Hillburn was not unique in its decision to segregate. Alexander points out that neighboring counties in New York, as well as numerous districts in New Jersey, Pennsylvania, Ohio, and many more norther states had segregated school. "The reasons segregated schools existed outside of the South varied from community to community." For some districts, it made geographic sense to segregate, as was the case in Hillburn. Alexander also discusses how economic demographics came into play as a rationale for segregation. Throughout the article, Alexander uses Hillburn's journey from segregation to integration as an example of the challenges that many northern cities and towns faced when making that transition.

Ellen Marrus, Education in Black America: Is It the New Jim Crow?, 68 Ark. L. Rev. 27 (2015).

Continue reading

March 24, 2015 in Discipline, Racial Integration and Diversity | Permalink | Comments (0)

Monday, March 23, 2015

Civil Rights Complaints Reach All-time High at Department of Education

The Office for Civil Rights at the Department of Education is tasked with investigating complaints of race, gender, ethnic, disability, language discrimination, and age, and ensuring that schools are in compliance with the relevant law.  In 2009, OCR received 6,364 complaints.  In 2014, it received 9,989, which was a record high.  The reasons are not altogether clear, but the Washington Post points out two likely causes.  First, OCR's recent guidance on sexual assault on college campuses and increasing student advocacy on this issue may have prompted several complaints in that area, although no single area of discrimination has experienced an unusual increase.  Second, as Catherine Lhamon, the Assistant Secretary at OCR, remarked: “Some of this is about the community believing that we’re here and we’re in business and we’re prepared to do the work.”

The second explanation rings particularly true.  As I have noted several times, OCR has begun enforcing anti-discrimination more aggressively over the past year or two.  Various policy guidance documents have all but invited individuals to bring complaints that they might have foregone in prior years, thinking that such a complaint was a waste of time.  

Not mentioned is the fact that courts have grown so inhospitable to some claims, particularly those requiring evidence of intentional race discrimination. See Alexander v. Sandoval. OCR's continuing authority to enforce its disparate impact regulations leaves it as one of the venues of last resort for communities experiencing educational inequality.  This reality, however, is overtaxing the resources of OCR.  The time it takes to resolve cases has grown considerable.  It is now asking Congress for additional funding to hire 200 additional attorneys and investigators.  Of course, what I might term as OCR's successes are termed as overreaches by some in Congress, who are thus skeptical of the efficacy of funding increases.

March 23, 2015 in Discrimination, Federal policy | Permalink | Comments (0)

Friday, March 20, 2015

Nance on Student, Police, and the School-to-Prison Pipeline

Professor Jason P. Nance (Florida) has posted Student, Police, and the School-to-Prison Pipeline, Washington University Law Review, forthcoming, on SSRN here. In his article, Nance empirically reinforces informal observations about the growing use of police in schools: that more children are ending up in the criminal justice system for infractions that would have been resolved previously without police officers. Lawmakers. parents, and school boards pressed for laws to increase the presence of police officers to protect students from mass gun violence, such as the attacks in Columbine and Sandy Hook. But laws intended to protect students from gun violence and external threats has resulted in law enforcement being overused as a first response to internal rule breaking. Nance argues that "not enough attention has been given to the potential negative consequences that these new laws may have on students and the school-to-prison pipeline." Below is an excerpt from Student, Police, and the School-to-Prison Pipeline:

Drawing on recent restricted data from the U.S. Department of Education, this Article presents an original empirical analysis revealing that a police officer’s regular presence at a school significantly increases the odds that school officials will refer students to law enforcement for various offenses, including these lower-level offenses that should be addressed using more pedagogically-sound methods. ... The empirical analysis reveals that, even after controlling for (1) state statutes that require schools to report certain incidents to law enforcement, (2) general levels of criminal activity and disorder that occur at the school, (3) neighborhood crime, and (4) other demographic variables, a police officer’s regular presence at a school significantly increases the odds that school officials will refer students to law enforcement for various offenses, including seemingly minor offenses. This finding has serious implications as lawmakers and school officials continue to deliberate over whether to use their limited resources to hire more law enforcement officers to patrol school grounds.

[T]his Article urges lawmakers and school officials to use their resources to adopt alternative measures to promote school safety instead of resorting to measures that rely on coercion, punishment, and fear. This is especially important when such measures tend to push students out of school and into the juvenile justice system, which can have such devastating, long-lasting consequences on the lives of students. A growing body of research suggests that programs that promote a strong sense of community and collective responsibility enhance school safety much more effectively than police officers and other strict security measures without degrading the learning environment. And while these alternative measures may not prevent a determined, deranged individual from harming members of the school community, the rarity of these events cannot justify the enormous amount of resources that would be needed to protect students at all times and in all places while they are at school. Indeed, in the wake of highly-publicized acts of school violence, the public often forgets that schools remain among the safest places for children.

March 20, 2015 in Scholarship | Permalink | Comments (0)

Charter Schools Come to Alabama

On Monday, I posted on the Alabama Senate passing a bill to allow charter schools in the state.  That bill blew through state house and the governor signed it into law yesterday.  More details here.

March 20, 2015 in Charters and Vouchers | Permalink | Comments (0)

Are Charter Schools and Unequal Funding Formulas the Conspiracy of the Rich?

George Joseph's new story in the Nation, 9 Billionaires Are About to Remake New York's Public Schools—Here's Their Story, suggests the answer to this post's question is yes.  The story details the role that hedge fund managers and other wealthy individuals have played in theorizing and financing changes in public policy in New York state.  The two major changes on which he focuses are more charter schools and less money for traditional public schools.  The story, if its inferences, are true is rather scandalous.  It might also put a different spin on the story I commented on two years ago regarding Goldman Sach's investment in Salt Lake City's pre-k program.  

Believing that pre-k would save the district money in the long run, Goldman promised to front the cost of expanding the city's pre-k program.  The catch was that the district had to promise Goldman a 40% cut of any subsequent savings in special education that the district accrued.  To me, this private investment was persuasive evidence of why the public should invest its own money in pre-k education, and need not let private financiers "get in on the deal."

Does either the New York or Utah story indicate a conspiracy?  Not necessarily.  But it does indicate that there is money to be made in education and we cannot underestimate the influence of this reality.  The public should be hypersensitive in evaluating education policies that directly benefit private industry or individuals.  Those policies might very well be good or excellent, but they might also be ruses.  Education experts and the research they produce, not the self-serving rhetoric of financial elites, must serve as the arbiters.

March 20, 2015 in Charters and Vouchers, Pre-K Education, School Funding | Permalink | Comments (0)

Evidence Grows on the Efficacy of Ending Zero Tolerance

The Atlantic ran a story this week titled "Zeroing out Zero Tolerance."  Much of the article mediates the debate between "no-excuses" charter schools that believe a rigid approach to discipline has been the key to their academic success and large urban school districts that have recently abandoned zero tolerance policies.  Her story emphasizes the large gains in achievement and graduation that the nation's two largest school districts--New York City and Los Angeles--have achieved since ending zero tolerance for minor misbehavior.  The same is true of Denver, which was a front-runner in this change.  There is not much new in the story, but it does a better job than most in highlighting the issues and juxtaposing the relevant school systems.

March 20, 2015 in Charters and Vouchers, Discipline | Permalink | Comments (0)

Thursday, March 19, 2015

Accidentally on Purpose: Intent in Disability Discrimination Law

Mark Weber's new article, Accidentally on Purpose: Intent in Disability Discrimination Law, is now available on ssrn here and forthcoming in Boston College Law Review.  For those interested in intentional discrimination standards in general (race, gender, etc.) or disability discrimination in particular, the article is a must read.  It takes very complex and intersecting statutory concepts of intent and brings them together in a coherent way.  Moreover, it points out where some courts have just gotten precedent wrong and should self-correct.  His abstract offers this summary:

American disability discrimination laws contain few intent requirements. Yet courts frequently demand showings of intent before they will remedy disability discrimination. These intent requirements have come into the law almost by accident: through a statutory analogy that appears apt but is in fact false; by continued repetition of language pulled from an obsolete judicial opinion; and by doctrine developed to avoid a conflict with another law when the conflict does not actually exist. Demanding that section 504 and Americans with Disabilities Act claimants show intentional discrimination imposes a burden found nowhere on the face of those statutes or their interpretive regulations.

This Article spells out the reasons not to impose any intent requirement either for liability or for monetary relief in section 504 and ADA cases concerning reasonable accommodations. It makes the uncontroversial point that no intent requirement applies to ADA employment cases, then explains that the same conclusion ought to apply to cases under the ADA’s state and local government provisions and section 504. It rebuts an analogy to caselaw under Title VI and Title IX of the Civil Rights Act that some courts use to support an intent requirement. It then identifies and corrects the reasoning of cases relying on the inappropriate analogy, those that rest on the obsolete precedent, and those that refuse to apply a full range of remedies for fear of conflict with the federal special education law.

This Article breaks new ground in the scholarly discussion of the disability discrimination laws by placing into context and critiquing the infiltration of intent requirements into cases brought under the provisions that bind state and local government and federal grantees. It relies on a contextual reading of the decisions of the Supreme Court, on the history of the ADA, and on policy considerations that ought to determine liability and remedies for unintentional disability discrimination.

March 19, 2015 in Discrimination, Special Education | Permalink | Comments (0)

Court Rejects School District Attempt to Sue State in IDEA Case by Mark Weber

In Fairfield-Suisun Unified School District v. California Department of Education, Nos. 12-6665, 12-16818, 2015 WL 1136449 (9th Cir. Mar. 16, 2015), the court of appeals ruled that school districts lack a right of action to pursue claims that the state department of education violated applicable procedures when deciding parental complaints filed pursuant to the federal special education law’s Complaint Resolution Process established under 34 C.F.R. sec. 300.151 (CRP). In one case, a school districts alleged that the department allowed two reconsiderations of a decision and took into account conduct outside the one-year statute of limitations set out in 34 C.F.R. sec. 300.153(c). In the other, a school district alleged that the department improperly put the burden of proof on the district rather than the complainant. Both districts sought injunctive relief forbidding similar conduct in future complaint resolution proceedings. The court observed that the cause of action established by the Individuals with Disabilities Education Act (IDEA) in 20 U.S.C. sec. 1415(i) provides for appeals from due process hearing decisions, but does not include appeals from CRP decisions. Accordingly, the court rejected the argument that IDEA’s express terms allow school districts to sue, and further rejected any implied right of action by which school districts can sue for the alleged violations of the statute.

 The holding is not a surprise. The court previously held that school districts lack the ability to sue the state education department for violations of IDEA procedures connected with due process hearings (specifically, routinely failing to comply with the time limits set out in federal regulations), Lake Washington School District No. 414 v. Office of Superintendent of Public Instruction, 634 F.3d  1065 (9th Cir. 2011). Moreover, courts have generally not permitted school districts to sue for violations of IDEA outside the context of an appeal of a due process hearing decision. I collect the cases in Special Education Law and Litigation Treatise (LRP 3d ed. & supp. 2015) at sec. 21.5. There are a few outliers, but given the trend against recognizing implied statutory causes of action exemplified by Alexander v. Sandoval, 532 U.S. 275 (2001), the likelihood of courts allowing school districts broad rights to sue for violations of IDEA in situations other than due process appeals looks slim. On the other hand, parents may have more extensive rights of action under section 1415, an implied IDEA cause of action, or 42 U.S.C. sec. 1983.

March 19, 2015 in Special Education | Permalink | Comments (0)

New York Pays "Usual Suspects" to Recyle "Money Doesn't Matter" Defense in Small Cities Trial by Molly Hunter

In the final days of trial in Maisto v. State of New York -- the "Small Cities" case -- the State brought on Eric Hanushek and David Armor to mount the time-worn, discredited "money doesn't matter" defense. Hanushek and Amor have spent their careers being handsomely paid to testify across the country against public school students who are challenging the lack of funding, resources and educational opportunity in their schools, based on state constitutional guarantees. In almost all of these cases, the courts have flatly rejected their arguments.

Notable about Hanushek and Armor's appearance in the Small Cities case is that they gave the same testimony 15 years ago in the Campaign for Fiscal Equity v. State case, a challenge to inadequate educational opportunities for New York City students. In that case, the Hanushek and Armor "money doesn't matter" argument was dismissed outright by the trial court and the Court of Appeals, New York's highest court. Even in the face of this record, the New York Attorney General again retained Hanushek and Armor to recycle their contentions , this time against the Plaintiffs in the Small Cities case -- students in eight high-poverty, upstate school districts.

Hanushek and Armor were cross examined in the Small Cities trial by Gregory Little of the White & Case law firm in New York City. Mr. Little represents the Small Cities students pro bono, serving as lead trial counsel with William Reynolds of the Bond Shoeneck firm in Albany. Education Law Center also serves on the trial team. In 2011, Mr. Little cross examined Hanushek in Abbott v. Burke where he unsuccessfully testified in defense of Governor Chris Christie's massive $1.1 billion school funding cut.

Continue reading

March 19, 2015 in School Funding | Permalink | Comments (0)

Wednesday, March 18, 2015

Constitutional Challenge to Teacher Tenure Survives Motion to Dismiss in New York

Almost immediately after the trial court in Vergara v. State held that California's tenure and last-in-first-out statutes violated students right to education under the California Constitution, litigants filed a similar claim against New York, Davids v. New York.  Last week, the trial court denied the state's motion to dismiss and permitted that case to move forward.  Campbell Brown, who is helping lead the anti-tenure movement, hailed the decision as “a major victory for New Yorkers, especially for parents and students.”  To the extent their claim is alive and they thought it would fail, yes, it is a significant victory.  On the other hand, the judge's decision was unsurprising and probably correct.  

The complaint in Davids was better written than Vergara.  Its causal assertions were more clearly articulated and speak more directly to the prima facia claims that litigants must make in educational adequacy and equity claims.  But stating a claim in a complaint and proving that claim with real and compelling evidence are two different things.  

As I emphasize in this article, the notion that tenure might violate students' right to education is theoretically valid and, thus, courts should be careful to not peremptorily bar such claims because doing so might also have negative reciprocal effects on other important theories that seek to vindicate the constitutional right to education outside of school funding (in areas such as student discipline, student assignment, and segregation).  Yet, courts must also refrain from the allure of the simplicity of the tenure claims.  Unfortunately, the latter is exactly what the trial court in Vergara seems to have done.

School quality and equity cases are incredibly complex.  Courts have required plaintiffs to demonstrate

  • a constitutional duty
  • a substantial and systematic deprivation of rights
  • input causation: state responsibility for local deprivations
  • output causation: whether the deprivation affect pertinent educational outcomes, and 
  • that the violations are susceptible to a remedy (or the remedy that plaintiffs request)

While the Davids plaintiffs generally make these allegations in the complaint, these allegations are really just assumptions.  Demonstrating the truth of these assumptions is going to be extremely difficult, and will require far more nuanced analysis and evidence regarding multiple factors affecting educational and teaching quality, which the plaintiffs have yet to even acknowledge.  Nonetheless, under liberal pleading rules, it is most likely plaintiffs' right to try to prove those assumptions.  Although as I note in my article, newer more strict pleading rules in federal court might provides a basis to dismiss claims that assume or speculate about key issues.  Of course, state education claims proceed in state court and most states have yet to move to the new federal approach. 

Download the New York opinion here:  Download 2015 March Motion to Dismiss Denied -A-043 - Davids-Wright

March 18, 2015 in School Funding, Teachers | Permalink | Comments (0)

Tuesday, March 17, 2015

Scholarship: Beyond the Schoolhouse Gates: The Unprecedented Expansion of School Surveillance Authority Under Cyberbullying Laws

Professr Emily Suski (Georgia State) has posted Beyond the Schoolhouse Gates: The Unprecedented Expansion of School Surveillance Authority Under Cyberbullying Laws, published in the Case Western Reserve Law Review. Excerpted from the abstract: For several years, states have grappled with the problem of cyberbullying and its sometimes devastating effects. Because cyberbullying often occurs between students, most states have understandably looked to schools to help address the problem. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. While some surveillance authority over students may be warranted, the majority of the cyberbullying laws implicitly give schools unlimited, or nearly unlimited, and unfettered surveillance authority over students' online and electronic activity whenever, wherever, and however it occurs: at home, in bedrooms, at the mall, on personal cell phones, on tablets, or on laptops. ... To protect students from excessive school surveillance authority and attendant privacy harms, realistic limits need to be imposed on school surveillance authority under the cyberbullying laws both by way of a framework for determining the boundaries of school authority and a cause of action for students. This Article calls for both and draws on the nexus doctrine in First Amendment student-speech cases to develop such a framework. Prof. Suski's article is available on SSRN: http://ssrn.com/abstract=2573390.

March 17, 2015 in Scholarship | Permalink | Comments (0)

New Lawsuit Claims Cap on Charter Schools Is Unconstitutional

Partners in some of Boston's largest law firms plan to file suit against Massachusetts, arguing that its cap on charter schools violates the state constitution's education clause.  Their theory, at this point, is not clear.  They say the suit will be brought on behalf of children who wanted to attend charter schools, but were not afforded a seat through the lottery procedures.  Instead, the students enrolled in underperforming traditional public schools.  “We don’t think they should be denied that opportunity, and we don’t think the Constitution allows them to be denied that opportunity,” Lee said. “We’d like to see the cap removed so that supply meets demand.”  Their impetus appears to be a belief in studies claiming the academic superiority of charter schools.

The lawsuit is significant on several fronts beyond just the particular claims it might raise.   First, it would appear to attempt to expand the scope of school finance precedent.  This same type of strategy is at play in the constitutional challenges to tenure in  Vergara v. California and similar litigation in New York.  As analyzed here, the tenure theory can find some support in school finance precedent (although the plaintiffs' facts are lacking on causal questions), but how charter caps would fit into school finance precedent is far from obvious.  To the contrary, the better constitutional arguments have been that charter schools violate the education clause (although courts have been reluctant to hold as much).  Absent some revolutionary theory, the challenge to charter school caps is unlikely to go far.  Nonetheless, it is an important example of how malleable school finance precedent could expand or, at least, how many different types of lawsuits might be brought in the attempt to expand it.

Second, this lawsuit also represents another instance of what David Sciarra has called grandstanding in education cases by certain big law firms.  Education reformers' political theories are being transformed into constitutional claims by big law firms looking for pro bono work.  It is unclear as to whether the firms are being duped by education reformers self-righteousness and their civil rights rhetoric or the firms are just looking to grab headlines through controversial litigation. Either way, the litigation is potential dangerous to long term education rights.  The constitutional right to education is not political and never should be treated as such, but educational constitutional claims push separation of powers concerns to the brink in school quality and quality cases. Voyeurism into this area with these new claims looks like politics rather than vindication of constitutional rights.  In this respect, litigation of this nature has the potential to undermine current rights .

Third is the question of litigation resources.  With all the fundamental funding, quality, and racial inequalities in public education systems, the notion that a major law firm would skip past those issues to litigate on behalf of charter school interests is ironic to say the least.

March 17, 2015 in Charters and Vouchers, School Funding | Permalink | Comments (0)

Building Teacher Capacity to Support English Language Learners in Schools Receiving School Improvement Grants

The Institute of Education Sciences' study of school turnarounds examines the improvement process in schools receiving federal funds through the School Improvement Grants (SIG) program over a three-year period (2010–11 to 2012–13 school years). Its newest brief focuses specifically on  those schools with high proportions of English Language Learner (ELL) students.  Those schools attempted to improve teachers' capacity for serving ELLs through staffing strategies and professional development (PD). Key findings that emerged from the ELL case study data collected during the 2011–12 and 2012–13 school years include:

  • Few schools reported leveraging staffing strategies to improve teacher capacity for serving ELLs. Administrators in 3 of the 11 schools reported considering ELL expertise and experience when hiring classroom teachers, while respondents in 2 of the 11 schools reported that teachers' ELL expertise and experience purposefully factored into assignment of teachers to specific classrooms.
  • Most teacher survey respondents (54 to 100 percent) in all 11 schools reported participating in ELL-related PD during the 2011–12 school year. On average, teachers reported that ELL-related PD accounted for less than 20 percent of their total PD hours.
  • Teacher survey respondents in schools that reported a greater PD focus on ELL-related topics, such as instructional strategies for advancing English proficiency or instructional strategies to use for ELLs within content classes, also generally appeared more likely to report that PD improved their effectiveness as teachers of ELLs.

Download the full report here.

March 17, 2015 in English Language Learners | Permalink | Comments (0)