Friday, December 5, 2014
Given the size of its student population, the Texas Board of Education's decisions about which books to approve and purchase have an enormous effect on the overall market. The Board's deliberations seem to get more and more political each year. Last year, I posted on the Board's ongoing saga to select biology books that included creationism, and I referenced its 2010 decision to adopt history and economics books with a decidedly conservative slant. Late last month, they were at it again.
According to local reports, the state has approved new history textbooks with even more revisionist history in them. The Texas Freedom Network indicates, for instance, that "the new textbooks also include passages that suggest Moses influenced the writing of the Constitution and that the roots of democracy can be found in the Old Testament. Scholars from across the country have said such claims are inaccurate and mislead students about the historical record."
The Supreme Court has recognized that the state and its schools have the right to promote and inculcate values and good citizenship, but in Island Tree School District Board of Education v. Pico, 457 U.S. 853 (1982) and West Virginia v. Barnette, 319 U.S. 624 (1943), the Court emphasized the authority has its limits. The state cannot forcefully indoctrinate students or intentionally subvert access to information. Deciding which side of the line educators' actions falls on can be difficult, but in Loewen v. Turnipseed, 488 F. Supp. 1138 (N.D. Miss. 1980), the district court confronted a situation analogous to the ongoing saga in Texas.
In Loewen, the state had refused to include Mississippi: Conflict and Change--which told the less than laudatory history of discrimination in Mississippi--on the state's list of approved history books, but had included another book that, according to plaintiffs, was a "symbol of resistance to integration in Mississippi schools." The court did not strike the latter book, but did find the exclusion of the first was unconstitutional based on the aforementioned cases. Key in Loewen were procedural anomalies and problematic comments on the record by the state in regard to Mississippi: Conflict and Change.
The Poverty and Race Research Action Council noted yesterday in its weekly update that
The Department of Education continues to take small but important steps toward embracing school diversity as a department-wide priority - most recently in its proposed priorities for charter school funding programs, which will add a school diversity priority to some of its future charter funding rounds, and which notes that "a critical component of serving all students, including educationally disadvantaged students, is consideration of student body diversity, including racial, ethnic, and socioeconomic diversity. This proposed regulatory action encourages broad consideration of student body composition, consistent with applicable law, as charter schools are authorized and funded and as best practices are disseminated." 79 Fed. Reg. 68821 (November 19, 2014)
Thursday, December 4, 2014
ACLU and Community Legal Aid Society File Segregation Complaint Against Delaware Charters, Call for Moratorium
Yesterday, the ACLU of Delaware, ACLU Racial Justice Project and Community Legal Aid Society filed a complaint with the Office of Civil Rights asserting that Delaware’s charter school policies discriminate against students of color and students with disabilities. They also perpetuate segregation. “We hope that the Office of Civil Rights recognizes that any system of selection that has the effect of almost completely excluding children with disabilities from the ‘high-achieving’ charter schools is deeply disturbing and must constitute illegal discrimination,” says Dan Atkins, Legal Advocacy Director of the Disabilities Law Program of Community Legal Aid Society, Inc.
The complaint asserts that "over three-quarters of charter schools operating in Delaware are racially identifiable. High performing charter schools are almost entirely racially identifiable as White. Low income students and students with disabilities are disproportionately relegated to failing charter schools and charter schools that are racially identifiable as African American or Hispanic, none of which are high performing." They assert charter schools are also increasing segregation in traditional public schools.
They ask for the following solutions to the problem:
Wednesday, December 3, 2014
The Mississippi Law Journal's symposium edition focusing on education law is now available at 83 Miss. L.J. 671 (2014). Although the symposium edition covers a range of national education issues, it comes at an important time in Mississippi, as the state faces an education funding lawsuit and as its governor and lieutenant governor square off this week against state education officials over scrapping the Common Core standards that the state adopted in 2010. The introduction by Prof. Kerry Brian Melear (Mississippi) and Mary Ann Connell summarizes the symposium's articles:
Plaintiffs Secure First Victory in Nation Challenging Federal Role in Common Core, But Reasoning Is Unclear
The skepticism I expressed in September regarding a lawsuit challenging Missouri's funding of the consortium developing Common Core standards and assessments may have been misplaced, at least, for now. Plaintiffs claimed that the state funding of the consortium amounts to an "illegal interstate compact" that cedes state sovereignty over education to the consortium. They also charged that the U.S. Department of Education's funding of the consortium was not authorized by Congress. As I have noted several times, there are plenty of legal flaws to go around with how the federal government has rolled out teacher and Common Core policy, but an unauthorized funding of a consortium did not appear to be one of them.
Nonetheless, plaintiffs in the case have secured the first victory in the nation implicating the U.S. Department of Education. Prior cases all involved purely state law issues and contests of power between the state executive and legislative branch. This current case, however, is curious in that it claims the U.S. Department of Education's action was unconstitutional, but the complaint does not name the Department as a defendant. In that respect, it seeks to keep the case state based and the feds out of it, while still claiming their unconstitutional action is central to the case.
In January, the Maine Supreme Judicial Court has held that Nicole Maines, a transgendered student who is biologically male but identifies as female, has the right to use the girl's restroom. Denying her that right was a violation of Maine's Human Rights Act. Maine's supreme court was the first to ever rule in favor of a transgendered student on this issue.
The case was remanded to the trial court for damages. Yesterday, the court ordered the district to pay Nicole $75,000 in damages. This clear cut victory should serve as serious warning for other districts, at least, in Maine.
Tuesday, December 2, 2014
The Westchester County Bar Association Foundation offers two year public interest law fellowships to provide legal help to the county’s underserved residents. It also provides training to a new lawyer who otherwise might not have the opportunity to do public interest work. The third fellow, Darren Guild, was hosted by Student Advocacy, a non-profit that provides legal, educational advocacy services to families in Westchester County, New York.
The Foundation attempts to match applicants with host sites that provide an opportunity for the students to further his/her interests. If you have a law student who will graduate next spring and is interested in education law, please encourage the student to apply for this fellowship. To request an application, the student should contact the Foundation: http://www.wcbany.org/?page=BarFoundation
Forbes magazine commissioned a study of the cost and benefits of the five big ideas for reforming education. The five big ideas will cost $6.2 trillion over 20 years and produce $225 trillion in additional gross domestic product. So what is the plan? Universal pre-k, teacher efficacy (attract, retain, and measure good teachers), school leadership (raise their salaries and give them the power to act like any other division head, including hiring and firing), blended learning (delivering rote information through technology and relying on teachers for value added instruction, which requires increasing computer and internet access), and common core curriculum.
Reduced to those headlines, it sounds simple. Reduced to the impressive financial spreadsheet, it sounds like a no brainer. To make sure, Forbes convened the top leaders from the four key constituent groups to ask whether the five big ideas are doable. The leaders were Arne Duncan, Governor Andrew Cuomo, Randi Weingarten, and D.C. public schools chancellor Kaya Henderson. They generally agree that the plan is doable.
Monday, December 1, 2014
Below is the introductory letter and new guidance on single sex education from the Department of Education:
Today, the U.S. Department of Education's Office for Civil Rights (OCR) released guidance for K-12 schools that offer or want to offer single-sex classes. In response to numerous inquiries about the legality of single-sex classes, OCR issued guidance that charts a path for schools on how they can provide boys-only or girls-only instruction while remaining in compliance with civil rights laws.
Over the past year, there has been a tremendous amount of discussion on this blog (e.g., here, here, here, and here) and elsewhere about how schools prosecute and prevent rape, as well as deal with its aftermath. The law applies to all schools that receive federal funds, but the conversation has focused almost exclusively on colleges and universities. Last week, students in Oklahoma revealed how the problem can play out in public high schools.
Three students in Norman Public Schools accused a male classmate of sexually assaulting them. The school acted swiftly to remove the male student from school. The students' complaints, however, are in regard to the environment that developed afterward. They say that the alleged assailant's friends have now begun bullying them and it has not stopped. As a result, they withdrew from Norman High School. Now hundreds of other students have come to the girls defense, stagging a walkout protest last week. Whether there was a hostile environment and the school failed to adequately respond remains to be seen, but these students, like those concerned with curriculum issues in Colorado, have certainly found a way to shine a spotlight on the issue.
Wednesday, November 26, 2014
The Indiana Supreme Court heard arguments Monday in a class-action lawsuit alleging that a school corporation's decision to end free school bus transportation violated the state constitution's education clause. The state supreme court is reviewing the court of appeals' decision in Hoagland v. Franklin Twp. Cmty. Sch. Corp., holding that transportation to and from school is an integral "part of a uniform system of public education" under the Indiana Constitution. The court of appeals found that the school corporation, Franklin Township, acted unconstititionally in discontinuing its free school bus service and in contracting with a third party provider that required students to pay for transportation. The appellate court also noted that school corporations are obligated to provide free transportation for students with disabilities, homeless students, and students in foster care. The court of appeals saw no rationale to exclude any other student who needed transportation to school, even if the student was not in one of the mandatory transportation categories. The Indiana Supreme Court has held that a school corporation could not impose a student-services fee that included payment for school counselors, nurses, and security, because those services were part of a publicly-funded education. Nagy v. Evansville–Vanderburgh School Corp., 844 N.E.2d 481 (Ind. 2006). Franklin Township Community School Corporation cut its bus service after Indiana's public schools lost hundreds of millions of dollars when new property-tax caps went into effect in 2010. The Township later contracted with an educational service center to provide student transportation for an annual fee. The case set for argument is Hoagland v. Franklin Twp. Cmty. Sch. Corp., No. 49A02-1301-PL-44, 2014 WL 2580663 (Ind. Ct. App. June 10, 2014), transfer granted, opinion vacated, 2014 WL 5312934 (Ind. Oct. 16, 2014). Watch the oral argument online here.
Tuesday, November 25, 2014
At the beginning of the charter school experiment, charter school advocates touted their ability to provide a superior education at a lower cost than traditional public schools. Now, we are seeing the charter lobby abandon that claim and turn to the courts to demand equal funding for charter schools. In Texas, charter school advocates recently lost their claim for equal funding. In New York, charter school advocates have sued for equal facilities funding. In a ruling that may have wide ramifications, last week an Arizona appellate court affirmed a lower court's ruling that the differential funding systems for public and charter schools do not violate Arizona's constitution.
In Craven v. Huppenthal, parents of children in Arizona charter schools sued the state, claiming that Arizona's school funding scheme was unconstitutional because it caused "gross disparities between charter public schools and other public schools." The lower court had granted summary judgment in favor of the defendants, and defendant-intervenors the Arizona School Boards Association and Creighton Elementary School District No. 14. The plaintiff-parents appealed.
Three months ago, the U.S. Department of Education revoked Oklahoma's No Child Left Behind waiver because the state was no longer in compliance with one of the conditions of receiving a waiver: adopting college and career ready academic standards. Oklahoma initially met that condition by adopting the Common Core standards, but the state repealed the standards this summer. The Department quickly revoked its waiver.
Since then, the state has scrambled to get the Oklahoma State Regents for Higher Education to review the state's old academic standards--Priority Academic Student Skills (PASS)--and deem them college and career ready. The Regents did so and the Department of Education agreed. This meant that Oklahoma was once again in compliance with the conditions of its waiver and the Department reinstated it. Thus, on its face, the simple answer to why Oklahoma got its waiver back is that it had adopted college and career ready standards, even if those standards were not the Common Core standards. But history suggests there may be much more to it than that.
Monday, November 24, 2014
This from the Economic Policy Institute:
On Friday, December 5, at 10:00 a.m. ET, the Economic Policy Institute will host a debate between noted scholars on affirmative action in American higher education, featuring Georgetown University Law Professor Sheryll Cashin and Richard Rothstein, a research associate at EPI. They will be joined by American University Law Professor Lia Epperson, and Catharine Bond Hill, president of Vassar College.
President Obama's announcement that he would shield undocumented immigrants from deportation has only emboldened claims that his administration is grossly overstepping the bounds of permissible executive action. Detractors seek to lump immigration, environment, health care, and education policy all together as overarching evidence of an administration acting as a monarch.
Most of the claims, however, ignore a major distinction between the administration's No Child Left Behind waivers and all the other executive action that enervates them. In the other areas, the executive action is to not enforce some existing law. The administration is exercising the equivalent of prosecutorial discretion. The discretion to not enforce the law in some particular instances is well established and amounts to no more than an administrative decision of how to utilize scarce administrative resources (even though the practical policy ramifications are clearly high with immigration, for instance).
NCLB waivers are entirely distinct. The administration did not simply decide to waive or not enforcement NCLB requirements. It supplanted them with an entirely new set of conditions, found nowhere in NCLB. In this respect, the administration made new law, rather than just waiving old law. The distinction makes a world of difference constitutionally and under the relevant statutes. I flesh out these distinctions in detail here. While most conservative commentators entirely miss this point, Neal McClusky of the Cato Institute, to his credit, makes this distinction in his article, Illegal “No Child” Waivers Should Raise Much Louder Alarms.
As a side note, Edweek explains what Obama's immigration announcement means for education here.
Friday, November 21, 2014
Cadwalader Report on UNC Prompts Class Action Complaint Alleging "Shadow Curriculum" for Football Players
The NCAA faces interesting times as it defends its role as integrating student-athletes’ education with playing collegiate sports. In the pending case before the Ninth Circuit Court of Appeals, O’Bannon v. National Collegiate Athletic Association, No. 14-16601, the NCAA will defend its rules prohibiting compensation of student athletes by arguing that those rules protect students from exploitation. But the evidence is mounting that NCAA member schools are themselves exploiting students, and the NCAA will have to justify its amateurism defense against claims that colleges promise student-athletes an education through sports scholarships but are still failing to deliver on that promise for many players. A former University of North Carolina at Chapel Hill (UNC) student alleges just that point in a suit filed earlier this month. Former UNC football player Michael McAdoo filed a federal class action complaint against the school, alleging that the Cadwalader Report investigation, which found that that UNC faculty and staff created a “shadow curriculum” for its football players that required little or no academic rigor from 1993 until 2011, shows that UNC officials knew about and facilitated that curriculum. In his complaint, Mr. McAdoo alleges that he wanted to take criminal justice classes but when he arrived at UNC, but football players were steered into three majors: Exercise Sport Science, Communications, or African-American Studies. McAdoo states that he was told these were the only majors that would accommodate his football practice and playing schedule, and that the football program had “relationships” with professors in those departments. McAdoo seeks injunctive relief including, among other things, a court appointee to review football players’ academic schedules for five years and that UNC give four-year guaranteed scholarships to all football student-athletes. McAdoo has sued UNC before in state court after the school declared him ineligible to play college football after he was found to have committed academic misconduct. That complaint was dismissed. McAdoo’s class action complaint can be found on Westlaw: McAdoo v. The University of North Carolina at Chapel Hill, 2014 WL 5823326 (M.D.N.C.) (filed November 6, 2014).
New Report Ranks Massachusetts Among the Worst for Racial Disparities in Discipline, and Its Charters Schools the Worst of the Worst
The Boston-based Lawyers' Committee for Civil Rights and Economic Justice has released a new report on school discipline in the state, Not Measuring Up: The State of School Discipline in Massachusetts. The report makes four major findings:
1. Massachusetts' students missed a minimum of 208,605 days in the classroom due to disciplinary removal. During the 2012-13 school year, Massachusetts’ public school students were suspended (in-school and out-of-school), expelled, and removed to an alternative setting a combined 128,599 times. These punishments resulted in at least 208,605 days - the equivalent of 1,160 students missing the entire school year - during which students were removed from their regular classrooms.
Angelica Jongco shared a new report from Public Advocates on forced parental work policies at charters yesterday. The report, Charging for Access: How California Charter Schools Exclude Vulnerable Students by Imposing Illegal Family Work Quotas,
researched 555 charter schools in California and found that almost one-third of them (30%) require parents to do work at the school for a set quota of hours. This practice is illegal under the California constitution and the Education Code. In our report, we expose the extent of the practice and explain why it is illegal. We have sent a demand letter to the California Department of Education and the State Board of Education urging them to take immediate steps to abolish the practice. At our online appendix, we provide a list of all the charter schools we found that have such a practice, with a link to their policy documents.
Thursday, November 20, 2014
As a followup to yesterday's post on isolation practices, the explanation another district for its isolation rooms is worth noting. The Center Consolidated School District, Colorado, has been using isolated study in 4 foot by 6 foot rooms as an alternative punishment to expulsion for ten years. The district reasons that isolation is preferable to classroom disruption or school exclusion. The former harms other students. The latter harms the disciplined student and the school, based on the likely effects on dropout rates. According to the superintendent, parents are given the choice between expulsion and isolation, in which students will be provided study materials. During the last 10 years, about 40 students have been placed in isolation and, over the last year alone, the dropout rate plummeted from 13% to less than 2%.
Wednesday, November 19, 2014
According to a four month investigation by local news sources, Mansfield Independent School District in Texas put elementary school students in isolation rooms on 800 different occasions last year. The district's documents refer to the rooms as “blue rooms,” “recovery rooms,” “calm rooms,” and “isolation centers.” The districts intends to no longer use the latter term. Records also indicate that some students are placed in the room "for the remainder of the day," which begs the question of how long students are kept in the rooms. Equally disturbing, state law does not require that the schools notify parents of the isolation and, thus, this may breaking news to some.