Thursday, November 13, 2014

Changes in Holiday Calendar Create Controversy in Maryland, But Board Probably Got It Right

In Montgomery County, Maryland, Muslim community leaders requested that the school district close school on the holy day of Eid al-Adha.  Their rationale was that school is closed on major Christian and Jewish holidays and that it would be equitable to close on the Muslim holiday as well. While Muslim students' absences on religious holidays are excused, they still miss important classroom time and their families wanted to avoid this.  Thus, community leaders argued the only fair thing to do would be to close on Eid al-Adha as well.  

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November 13, 2014 in First Amendment | Permalink | Comments (0)

Wednesday, November 12, 2014

A Big Win for the Students of South Carolina

The South Carolina Supreme Court issued its decision in its long running school finance case today. The Court affirmed, with modifications, the trial court decision on behalf of the plaintiff school districts.  The Court emphasized that the winners in the case were the students in the plaintiff school districts.  It also emphasized that although neither the state nor the school districts in this case had carried out their duties in  education, there are no losers in the case.  This is not the time to cast blame, but a time to move forward with solutions.  The opinion is here.

November 12, 2014 in School Funding | Permalink | Comments (0)

If NCLB Reauthorization Comes, What Will It Look Like?

With Republicans controlling both the House and Senate now, the chances of some form of reauthorization, even if just piecemeal, of the Elementary and Secondary Education Act go up.  That is not to say that reauthorization is likely, but watered down reauthorization has been low-hanging fruit for several years.  Only irrational acrimony stood in its way.  Whether we see legislation is probably less dependent on whether there is some theoretical policy that is suitable to both the President and Congress than it is on whether they are interested in the idea of agreement.

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November 12, 2014 in ESEA/NCLB | Permalink | Comments (0)

Tuesday, November 11, 2014

New Lawsuit Alleges that Pennsylvania’s School Funding Arrangement Denies Students an Adequate Education

Yesterday, plaintiffs in Pennsylvania sued to have the state's funding formula declared unconstitutional, alleging that the General Assembly has failed its state constitutional obligation to provide a "thorough and efficient" system of public education. Read the complaint and watch interviews with the plaintiffs at Thorough and Efficient, a joint blog of the Education Law Center of Pennsylvania and the Public Interest Law Center of Philadelphia. Cribbed from the plaintiffs' press release:

    The Education Law Center of Pennsylvania and the Public Interest Law Center of Philadelphia sued Monday on behalf of six school districts, parents, and two statewide associations against legislative leaders, state education officials, and the Governor for failing to uphold the General Assembly’s constitutional obligation to provide a "thorough and efficient" system of public ducation. According to the complaint, the Commonwealth has known for nearly a decade that Pennsylvania’s schools are badly underfunded.

    Beginning in 2011, however, state officials abandoned [a working] funding formula, reduced funding to districts by more than $860 million, and passed legislation to prevent local communities from increasing local funding. The complaint alleges that these actions have had devastating consequences for students, school districts, and the future of the Commonwealth. Districts across the state are unable to provide students with the basic elements of a quality education, including sufficient numbers of qualified teachers and staff, appropriate class sizes, suitable facilities, and up-to-date text books and technology. ...

    Plaintiffs allege that this underfunding and consequent underperformance has created a system of public education that is neither “thorough” nor “efficient,” nor “serves the needs of the Commonwealth.” In a second cause of action, the complaint alleges that the current way in which the Commonwealth funds public education denies students equal educational opportunities by creating gross funding disparities between wealthy and poor school districts.


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November 11, 2014 in Cases, News, School Funding | Permalink | Comments (0)

Ohio Takes Step Toward Repealing Common Core (But Has a Backup Plan)

Last week, Edweek reported on an Ohio bill that would repeal Common Core in the state.  The bill has now made it through the state house committee by a vote of 7-2.  Whether it is brought before the full house depends on whether its sponsors believe it will pass.  Support for the bill before the full house is unclear.

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November 11, 2014 in ESEA/NCLB | Permalink | Comments (0)

Monday, November 10, 2014

New Issue of Law and Education: Value-Added Assessments in Untested Courses and Boarding Schools for Disadvantaged Students

Below are the abstracts for two forthcoming articles in the Winter 2015 issue of the Journal of Law and Education.

Michelle Croft, Ph.D, J.D. & Richard Buddin, Ph.D, Applying Value-Added Methods to Teachers in Untested Grades and Subjects

As more states begin to adopt teacher evaluation systems based on value-added measures, states face challenges in how to include teachers in subjects other than math and English language arts in the evaluation systems. This article reviews value-added methods with a particular focus on alternative approaches to improve teacher evaluation in untested grades and subjects. The article discusses the traditional teacher evaluation system; describes the history of student growth as part of teacher evaluations; provides background on research related to value-added measures generally; and gives information on how value-added measures are being incorporated into evaluations for teachers in non-tested grades and subjects, highlighting where recent lawsuits have been filed.

Shelaswau Bushnell Crier, Beyond Money: Public Urban Boarding Schools and the State's Obligation to Make an Adequate Education Attainable

This article argues that states should add PUB schools to their educational program offerings in order to provide an adequate education to those students for whom the cohesive educational and residential environment of a boarding school would address the unique disadvantages presently hindering their educational attainment. The article analyzes various factors affecting public education and identifies present state efforts to address areas of concern where states fall short. It explains how PUB schools effectively address areas of concern and discusses the utility of the “urban” portion of the PUB school. This article also looks at the cost of a PUB school and presents a dollars and cents cost-benefit analysis, while finishing with a snapshot of current PUB schools and a brief commentary on other public boarding schools in the United States. The article concludes with a statement regarding further areas of exploration regarding PUB schools.

November 10, 2014 in Teachers | Permalink | Comments (0)

Friday, November 7, 2014

N.M. Supreme Court Rules that Statements Elicited by School Official Cannot Be Used in Student's Delinquency Proceeding Absent Waiver of Rights

The New Mexico Supreme Court recently held that incriminating statements elicited by a school official could not be used against a student in a subsequent delinquency proceeding unless the child validly waived his or her right to remain silent. The N.M. court’s decision is notable because a deputy sheriff, who was acting as a school resource officer, was present during the school official’s questioning but did not question the student himself. The case arose from the following facts: a student, Antonio T., allegedly arrived at school smelling of alcohol. The assistant principal questioned Antonio T. but did not give him a Miranda warning because the assistant principal considered the encounter to be non-custodial.  Antonio T. was, however, required to take a Breathalyzer test. His breath tested positive for alcohol, and he was charged with possession of alcohol by a minor. The N.M. Supreme Court applied a state statute requiring proof of a valid waiver of a student’s constitutional rights before a statement may be used against that student in a delinquency proceeding. The Court found that the issue was not whether the assistant principal’s questioning was an investigatory detention, but instead whether Antonio T.’s statements were inadmissible under the statute because there was no proof of a valid waiver of right to remain silent. Without that proof, the appellate court held, the student’s statements made in response to the assistant principal’s questioning were inadmissible against him in delinquency proceedings. Read State v. Antonio T., No. 33,997 (N.M. Oct. 23, 2014) here.

November 7, 2014 in Cases | Permalink | Comments (0)

Thursday, November 6, 2014

Predicting the Education Reform That Election Results Will (or Will Not) Bring

Michael Petrilli, of the Fordham Institute, has offered his post-election prognostication for education reform.  He points out that, following the gains by Republicans in the 2010 midterm elections, we saw increases in teacher evaluation systems, the lifting of charter school caps, the expansion of voucher programs, and limitations on "last-in-first-out" teacher retention policies.  He labels these changes positive education reform and predicts that this week's election results will spell more good news on these issues.

While I would contest the notion that these are all "good" reforms, I have little doubt that we will see more movement on these fronts.  It, however, may not be as robust as 2010.  Several important trends have developed since 2010 that may create more roadblocks or speed-bumps for these reforms.  First, teachers have fired back with lawsuits in several states, challenging the constitutionality of certain teacher evaluation systems.  In North Carolina, teachers won.  In Florida, they stand a good chance of winning before the 11th Circuit.  Teacher, of course, have lost in other places like Colorado.  Overall, the results of the lawsuits will likely be mixed, but the represent an important concerted counter-force and demonstrate that some of these measures may be unconstitutional.  Second, charter schools remain popular, but the increase in their number has also brought an increase in scandals and implosions.  This has generated more conversation about the appropriate level of oversight state officials should exercise over charters.  In some locations, it has led to moratoriums on the riskiest charters--online charters.  Third, the aggressiveness with which the Department of Education has pushed these policies has eased considerably, particularly in regard to teacher evaluation systems, due to serious questions as to their validity.  States like Utah and Florida have also pushed back and questioned the legal authority of the Department to compel reforms of this sort, absent new legislation at the federal level.

November 6, 2014 in Charters and Vouchers, Federal policy, Teachers | Permalink | Comments (0)

Wednesday, November 5, 2014

Scholarship: Marking the "Four Corners" of the IEP to Mitigate Unequal Bargaining Power between Parent-Guardians and School Districts

The paper that received the George Jay Joseph Education Law Writing Award from the Education Law Association is available now on Lexis: Matthew Saleh, Public Policy, Parol Evidence and Contractual Equity Principles in Individualized Education Programs: Marking the "Four Corners" of the IEP to Mitigate Unequal Bargaining Power between Parent-Guardians and School Districts, 43 J.L. & Educ. 367 (2014). The Joseph award recognizes excellence in education law scholarship by law students or graduate students of education. Cribbed from the paper's introduction:

Under the Individuals with Disabilities Education Act, school districts are required by law to create Individualized Education Programs (IEPs) for qualifying students to help ensure these students receive a Free and Appropriate Public Education (FAPE). This paper makes the argument that courts should derive parties’ intended agreement from the text contained within the "four corners" of the written IEP and not from extrinsic evidence. Many districts and even state education departments openly favor vague litigable terminologies in IEPs, and most parents simply lack the sophistication to understand the legal problems they are creating for themselves down the line. Using the four corners rule to interpret IEPs would not be altogether different than the tack taken by courts towards construing boilerplate language in other types of contracts where: (a) one party has expertise in the technical language used; (b) the other party is unsophisticated as to the "obscure verbiage" utilized in the instrument; (c) the more sophisticated party played a disproportionate role in drafting the instrument; and (d) the court determines that the boilerplate terminologies do not adequately represent the "intent" of the less sophisticated party to the instrument. The applicability of such rules of interpretation to the IEP context, in conjunction with the four corners rule, would have a positive influence on the effectiveness of the IEP as a proactive means for agreeing to educational services without having to resort to costly, adversarial, and inefficient dispute resolution procedures.

November 5, 2014 in Scholarship, Special Education | Permalink | Comments (0)

Increasing Restrictions on Social Media While Reducing Restrictions on Guns

Two new articles of note are available on westlaw now.  They are about two entirely different trends, but suggest a huge irony when read together.

Janet R. Decker, Facebook Phobia! The Misguided Proliferation of Restrictive Social Networking Policies For School Employees, 9 NW J. L. & Soc. Pol'y 163 (2014).  The abstract states:

Employers have dismissed and disciplined teachers and other school employees for posting controversial material and engaging in inappropriate employee-student relationships over social networking. In response, schools have enacted policies that greatly restrict educators' social networking. This Article examines whether restrictive social networking policies are necessary. After analyzing the relevant state legislation, statewide guidance, district policies, and case law, this article argues that restrictive policies are unwarranted and misguided. School districts have prevailed in the vast majority of the cases because they already have the legal authority to discipline employees under existing law. This Article also recommends how policymakers and school leaders could respond to school employees' social networking more effectively.

Brandi LaBanc, Kerry Melear, and Brian Hemphill's new article, The Debate over Campus-Based Gun Control Legislation, 40 J.C. & U.L. 397 (2014), begins with an overview of mass and public shootings that have led to the increase in gun control legislation.  Because the Second Amendment is often implicated by these debates, the authors provide an outline of the amendment and related Supreme Court decisions. The authors then focus on "state firearm laws that resonate within higher education, including state laws permitting concealed weapons on campus and other gun-related legislation." Specifically, in 2013 four states passed gun control laws affecting higher institutions (Alaska, Arkansas, Texas, and New York), and all four laws are briefly discussed. The evaluates the arguments for both allowing and prohibiting firearms on college campuses. Finally, the authors conclude with a best practices discussion. 

November 5, 2014 in Discipline, First Amendment | Permalink | Comments (0)

Tuesday, November 4, 2014

What We Disagree About When We Disagree About School Choice

Aaron Saiger has published a response to Osamudia R. James', Opt-Out Education: School Choice as Racial Subordination, which I posted earlier here.  His response essay is titled What We Disagree About When We Disagree About School Choice, 99 Iowa L. Rev. Bull. 49 (2014).  His aim is to sort through the arguments on both sides of the school choice debate and get to the root issues. He argues that there are multiple ways to view the root principles and arguments from which this controversy stems. "[M]any disagreements about school choice stem from foundational disagreement[s] about the aspirations of this society and its goals for children. The choice debate, in many respects, instantiates the republic's longstanding contest between equality and liberty." Next he identifies the argument that "choice opposes not only equality but also freedom" in that "it enhances liberty only for those who already enjoy racial and economic privilege." He counters that argument with a discussion of what public education actually means and how to think about genuine choice when it comes to schooling.  He also addresses the contention that school choice is inherently political. Throughout the article, he aruges that the best way to view school choice is in terms of equality versus liberty; standard public education for all versus a parent's right to choose how their child will be educated.

November 4, 2014 in Charters and Vouchers | Permalink | Comments (0)

Monday, November 3, 2014

Huntsville, AL District's Surveillance of Students' Online Activities Under Scrutiny

The Huntsville, Alabama school district is under media scrutiny for a secret program it started last year to monitor students' social media activity. Two of the five Huntsville school board members have said that they were never told about the program. The surveillance program, called SAFe (Students Against Fear), paid a consulting firm over half of a million dollars last year to monitor students' social media postings. SAFe is also being targeted by the Alabama ACLU for being used to discipline African-American students at a disproportionate rate. reports that of the 14 expulsions for infractions related to SAFe, 86% impacted African-American students; African-American students comprise about 40% of the school system. Huntsville City Schools Superintendent Casey Wardynski has said that since January, about 600 social media accounts of the district's 24,000 city students have been investigated for images of guns or gang signs on social media sites such as Facebook and Instagram. The SAFe program reportedly started when a high school student posted a series of jokes on Twitter at the end of his junior year that allegedly caught the attention of the National Security Agency. The NSA then called Huntsville to tell officials about a student making violent threats on social media, although the federal agency denies making the contact. The student's posts raised no national or international threat, but the NSA connection is suspected because one of the student's family members from Yemen was part of the group chatting with the student during the tweets. School security searched the student's car shortly after the school system was contacted and found a jeweled dagger from a Renaissance fair in the glove box. The student was expelled for the first semester of his senior year for threats and for a weapons violation. Taking a picture with a gun in Alabama may get you expelled, but in Nebraska, you may pose with one in your senior yearbook portrait, as long as it is done "tastefully."

November 3, 2014 in News | Permalink | Comments (0)

The Human Side of School Discipline

This blog and national media are repleat with reports and data on school discipline.  Ira Glass took a different turn two weeks ago on This American Life.  He dug into the human story and experiences behind the numbers.  He describes the show as being about "schools struggling with what to do with misbehaving kids. There's no general agreement about what teachers should do to discipline kids. And there's evidence that some of the most popular punishments actually may harm kids." 

The full audio and transcript are available here.  Thanks to Josh Gupta-Kagan for sharing it.

November 3, 2014 in Discipline | Permalink | Comments (0)

The Individuals with Disabilities Education Act at 40

Lisa Lukasik has organized a discussion group at the Southeastern Association of Law Schools conference.  The  exact date of the panel is not yet set.  The conference is scheduled from July 27, 2015 to August 2, 2015 in Boca Raton, Flordia.  She is still seeking additional discussants.  I would also add that there are several nationally recognized special education scholars scheduled to participate.  It is an excellent opportunity for younger scholars to build relationships and exchange ideas with them.  Those interested in joining should contact Lisa at  The discussion description is as follows:

The Education for All Handicapped Children Act, now the Individuals with Disabilities Education Act, has been the primary federal influence on the education of children with disabilities since its enactment. In its 40th anniversary year with a reauthorization long overdue, it is ripe for reassessment. This discussion group will examine this legislation, reflecting on what has worked, what hasn't, and what can be improved in an anticipated reauthorization. It will also consider the disconnect between the United States' domestic recognition of educational rights for children with disabilities and its minimal effort to ratify the Convention on the Rights of Persons with Disabilities.

November 3, 2014 in Special Education | Permalink | Comments (0)

Friday, October 31, 2014

Inexplicable Funding Disparities in D.C. Metropolitan Area Schools

Earlier this month, the Thomas Fordham Institute issued a map based funding explorer of the D.C. area schools.  It is not altogether clear to me what the Institute's motivations or goals were.  It traditionally produces reports, whereas this is no more than an interactive map.  If you dig hard enough, you can get it to produce some tables for you.  Regardless, it includes a more robust set of data points than the average tool of this sort and is easy to use, so one (me) cannot help but play with it.  

The thing that jumped out at me over and over is that there is no clear rhyme or reason to the funding in the schools.  At the district level, the average per pupil expenditures in Alexandria, Arlington, and D.C. Public Schools fell between $15,000 and $15,700.  Rough parity, however, only makes sense if the need is roughly equal.  The majority of students in DC and Alexandria schools are low income, whereas two-thirds of Arlington students are middle income.  Thus, while parity between DC and Alexandria makes sense, Arlington is likely overfunding its schools, or Alexandria and DC underfunding theirs.

Falls Church and Fairfax County schools only further defy a sensible trend.  Both spend less than the afforementioned districts and both have less low income students.  That gives one hope of rationality, until one compares Falls Church and Fairfax to one another.  Low-income students are almost non-existent in Falls Church.  One out of four is low income in Fairfax, but Fairfax spends $2,000 less than Falls Church per pupil.  One might assume Fairfix is just poorer, but no.  Both Fairfax and Falls Church are both wealthy by any account, and the average income of adults in Fairfax is actually slightly higher than Falls Church.  

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October 31, 2014 in School Funding | Permalink | Comments (0)

Thursday, October 30, 2014

New Mexico Court of Appeals Allows Private Schools to Use State-Funded Textbooks

On Monday, the N.M. Court of Appeals upheld the constitutionality of a law requiring the state to provide instructional materials to schools, including private ones. A group of plaintiffs sued the the N.M. Public Education Department and challenged New Mexico's Instructional Material Law that requires the state education department to buy and distribute instructional material to schools "as agents for the benefit of eligible students." NMSA 1978, §§ 22-15-1 to -14. The plaintiffs argued that the law conflicted with several articles of the New Mexico Constitution, including the state's counterpart to the Free Exercise and Establishment Clauses, articles prohibiting the state from investing in private corporations and granting the state exclusive control over education. Finding for the state education department, the Court of Appeals held that "the mere indirect or incidental benefit to the private schools" did not violate the state constitution. The court interpreted the state constitution's prohibition against public funding of "sectarian, denominational or private" schools to have intended only to maintain state control of public schools and keep public schools from becoming sectarian. In rejecting the plaintiffs' arguments based on cases from the U.S. Supreme Court and other states, the New Mexico court stated, "We believe that the legislative intent in promoting the education of all schoolchildren in New Mexico deserves greater weight than the cases cited by Plaintiffs afford." Moreover, the court noted, the books are not given to private schools, but the schools only receive possession of the books as agents for the students. Read Moses, et al., v. Skandera, Acting Sec'y of Education, No. 33,002 (N.M. App. Oct. 27, 2014) here.

October 30, 2014 in Cases, State law developments | Permalink | Comments (0)

No More Routine Handcuffing in School?

Early this month, I posted the story of a five year old special needs student in a New York City public school that was restrained with his hands behind his back in velcro handcuffs for fifteen or more minutes because of his outburst in gym class.  Although the 9th Circuit's opinions are obviously have no binding effect on New York City, the 9th Circuit's recent opinion in C.B. v. City of Sonora, 2014 WL 5151632 (Oct. 15, 2014), portends bad new for the New York City schools and others that make it a practice of handcuffing students.  The Court in Sonora pointed out that two other circuits had applied T.L.O. v. New Jersey's, 469 U.S. 325 (1985), "reasonableness standard to evaluate whether a school official was entitled to qualified immunity from an excessive force claim" in cases of this sort.  But whether applying T.L.O. or Graham v. Connor, 490 U.S. 386 (1989), the Ninth Circuit made it relatively clear that the routine handcuffing of students would be hard to justify.  The court reasoned:

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October 30, 2014 in Discipline | Permalink | Comments (0)

Wednesday, October 29, 2014

The Retrospective Evidence Dilemma in Special Education

Dennis Fan's student note, No Idea What the Future Holds: The Retrospective Evidence Dilemma, 114 Colum. L. Rev. 1503 (2014), is now available.  It addresses the issue of whether retrospective evidence should be admitted in claims brought under the Individuals with Disabilities Education Act (IDEA). The author explains that retrospective evidence is "evidence that arises after the school district drafts the individualized education program."  Currently, courts are split as to whether such evidence should be allowed.  The note walks through courts' "present approaches to admitting retrospective evidence, suggests parsing different categories of retrospective evidence further, and ultimately prescribes rules for admitting certain categories."  

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October 29, 2014 in Special Education | Permalink | Comments (0)

The Role of the Education Lawyer

The American Enterprise Institute recently published a guide to effectively using education lawyers.  It is written for administrators and education leaders, but I think it is also an excellent read for education lawyers and students beginning a course in education law.  In several respects, it suggests a not too favorable view of education lawyers, emphasizing, for instance, that:

A lawyer’s job is to provide advice, not make decisions, for leaders. But in public education we often see lawyers act as gatekeepers. This means the lawyer, not the leader, frequently makes the final decision on a given course of action. This can play out in two ways.

One way is when a lawyer gives policy advice cloaked as legal advice, reflecting his or her opinion about what an organization should do rather than presenting all of a leader’s legal options and their risks. . . . Another way lawyers act as gatekeepers is when an education leader pushes his or her lawyer to serve as final decision maker, refusing to act until the leader gets his or her lawyer’s blessing.

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October 29, 2014 | Permalink | Comments (0)

Tuesday, October 28, 2014

Civil Rights Groups Demand Accountability for Equity in Public Education

LaJuana just posted on the Leadership Conference's letter to the Department of Education from yesterday. Today eleven more civil rights groups released recommendations to President Obama, Secretary of Education Arne Duncan, Congressional and State Educational Leaders urging increased educational opportunity and equity for students of color through improvements to local, state and federal accountability systems.  The full recommendations and letter are here.  The major thrust of the recommendation is that rather that the current approach of wide ranging and general education policy reforms, the administration should maintain NCLB's focus on achievement gaps and accountability for them.  Moreover, the administration should insist that that states are delivering equal opportunities that would close those gaps.  Thus, they recommend:

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October 28, 2014 in ESEA/NCLB, Federal policy | Permalink | Comments (0)