Thursday, April 7, 2016
We have not seen the complaint yet, but the New York Times reports that the pro-charter group, Families for Excellent Schools, along with eleven students, have filed a class-action lawsuit against the New York City Department of Education (NYCDOE) claiming that incidents of violence and bullying in public schools deprive students of their constitutional right to an education. Cribbled from Reuters: "The federal complaint, filed in Brooklyn on Wednesday, asserted that the "staggering" level of violence in city schools disproportionately affected minority students. "The violence knows few boundaries, except that, on average, white and Asian students encounter far fewer incidents of school violence than black and Hispanic students," the lawsuit said. It also claimed that younger students, disabled students and gay, lesbian and transgender students are targeted more frequently for abuse." The plaintiffs seek injunctive relief to requires the NYCDOE to enforce already-existing procedures to keep students safe and to investigate acts of violence in schools. NYC Mayor Bill de Blasio has refuted allegations of widespread violence in city schools, pointing out that such incidents are on the decline. The group that has joined the plaintiffs, Families for Excellent Schools, was recently profiled in the Nation after its record-setting spending in recent state legislative campaigns and lobbying efforts.
University of Georgia College of Education Professor Elizabeth DeBary and University of Southern Mississippi College of Education and Psychology Assistant Professor Ann E. Blankenship have published Volume 3 of the Education Law & Policy Review, serving as Guest-Co-Editors-in-Chief for this special double issue. The Education Law & Policy Review is a publication of the Education Law Consortium (ELC) in cooperation with the Education Law Association (ELA), the premier international education law professional association founded in 1954. It is a peer-reviewed law and policy journal providing scholarly reviews and commentary on national and international issues in education law and policy in K-12 and Higher Education, publishing leading law and policy research and analysis for use by scholars, policymakers, judges, lawyers, and educators.
This special double-issue of the journal is dedicated to the 50th Anniversary of the Elementary and Secondary Education Act of 1965 and the passage of the Every Student Succeeds Act in 2015. As scholars with backgrounds in policy and law, DeBray and Blankenship challenged both the education policy and law fields to generate fresh proposals for the ESEA reauthorization − to make recommendations for legislative changes that were grounded in research that could lead to improved educational practice. Preeminent scholars in education law and policy responded with thoughtful responses to the dramatic changes in ESSA and provocative ideas for improving education through incentivizing equity, strengthening mandates, and building capacity. All of these are viable strategies for attempting to leverage improved educational outcomes for students.
The issue is available electronically here and in print through Amazon. This issue features scholarship by Gary Orfield (UCLA and The Civil Rights Project), Jack Jennings (founder and former CEO of the Center on Education Policy), Megan Hopkins (University of Illinois-Chicago), Christine Malsbary (Vassar College), P. Zitali Morales (University of Illinois-Chicago), Emily Hodge (Montclair State University), Erica Frankenberg (Pennsylvania State University), Christopher Suarez (Williams & Connolly, LLP), Tina Trujillo (UC Berkley), Kara Finnigan (University of Rochester), Jennifer Jellison Holme (University of Texas at Austin), Nicholas Triplett et al. (University of North Carolina, Charlotte), and Benjamin Superfine (University of Illinois-Chicago).
Wednesday, April 6, 2016
Fifty years of research show that diverse schools can benefit all students. It's time to take action. Join the Century Foundation on April 19th at the Ronald Reagan Building in Washington, D.C. for a conversation about the future of school integration and promising strategies for increasing diversity in public schools. The event's keynote address will be delivered by U.S. Secretary of Education John B. King, Jr. Register here.
Education policies of recent decades have largely ignored the advantages of diversity, and socioeconomic and racial segregation in our schools has risen. But there may be reason to hope for a new wave of school integration.
According to new research from The Century Foundation, more than 90 school districts and charter schools across the country have begun efforts to increase socioeconomic integration in their schools. The U.S. Department of Education has also proposed a new federal program that would support voluntary efforts to increase socioeconomic diversity in schools.
This event will discuss these developments and ask the important questions about bolstering school diversity efforts.
Additional speakers include:
• Mohammed Choudhury, Director of the Office of Transformation and Innovation, Dallas Independent School District
• Tanya Clay House, Deputy Assistant Secretary for P-12 Education, U.S. Department of Education
• Donna Harris-Aikens, Director of Education Policy and Practice, National Education Association
• Richard D. Kahlenberg, Senior Fellow, The Century Foundation
• Monique Lin-Luse, Assistant Counsel, NAACP Legal Defense and Education Fund
• Halley Potter, Fellow, The Century Foundation
• Kimberly Quick, Policy Associate, The Century Foundation
• Amy Stuart Wells, Professor of Sociology and Education, Columbia University
The National Center for Mental Health in Schools in the Department of Psychology at UCLA has released its new report analyzing the Every Student Succeeds Act (ESSA) and how it does or does not address the barriers to learning and re-engaging disconnected students. It offers this summary:
The Every Student Succeeds Act (ESSA) recognizes that significant numbers of students require supports to successfully meet challenging state academic standards. This brief (1) analyzes the act to assess how it addresses the nature and scope of supports to address barriers to learning and re-engage disconnected students and (2) presents frameworks and prototypes for improving how schools provide student and learning supports.
The analysis finds the legislation clearly underscores that student and learning supports permeate efforts to enable every student to succeed. At the same time, the act muddies the nature and scope of such supports by scattering references to them throughout the various Titles, Parts, Subparts, and Sections. That is, by addressing barriers to learning in a piecemeal and mostly indirect manner, ESSA conveys a fragmented picture and a lack of coherence with respect to essential supports.
The shift to more local control is discussed as an opportunity for state and local stakeholders to escape the limitations of the federal act and move away from existing fragmented and marginalized approaches for dealing with factors interfering with student success. As aids for systemic change, the brief highlights frameworks and prototypes for developing a unified and comprehensive system for addressing barriers to learning and teaching – with an emphasis on enhancing equity of opportunity for success at school and beyond. *This report is from the national Center for Mental Health in Schools
Its conclusions include:
• The legislation clearly underscores that barriers to learning need to be addressed so that many more students will be able to meet challenging state academic standards.
• At the same time, the act addresses such barriers in a piecemeal and mostly indirect manner.
• As a result, ESSA conveys a fragmented picture and a lack of coherence with respect to essential student and learning supports.
• Student and learning supports need to be unified and developed into comprehensive system if they are to significantly enhance equity of opportunity as an essential component in enabling every student to succeed.
• If states and LEAs are to move away from existing fragmented and marginalized approaches for dealing with factors interfering with student success, they will need to use the transition to local control as a time to plan beyond the limitations of federal formulations.
It then proposes that policymakers begin "thinking out of the box" to produce "transformative system change. From this perspective, the report also highlights frameworks and prototypes that can be used as planning aids and guides in developing a unified, comprehensive, equitable, and systemic approach for addressing barriers to learning and re-engaging disconnected students."
Thursday, March 31, 2016
By taking a [c]abinet post . . ., I gained power to effect change, but I also traded the relative independence and security of a judge for a very different set of legal and political restraints. I can no more rewrite the federal role in education to advance women's rights than I could make up statutes [when I was] a judge.
Julie Mead and Maria Lewis have published a new study in the American Educational Research Journal titled The Implications of the Use of Parental Choice as a Legal “Circuit Breaker.” The article explores laws "that result in taxpayer subsidies to religious education, perpetuate racially identifiable schools, provide public single-sex schools, and allow instances where children with disabilities do not receive needed special education and related services." They examine the United States Supreme Court's reliance on parental choice as a "circuit breaker" that permits what would otherwise be unconstitutional state action. Their abstract states:
This study explores four instances where parental choice has been employed as a legal “circuit breaker”: (a) First Amendment Establishment Clause cases related to public funding, (b) Fourteenth Amendment Equal Protection cases regarding race-conscious student assignment, (c) Title IX regulations concerning single-sex education, and (d) a provision of the Individuals with Disabilities Education Act (IDEA) related to parental refusal to consent to initial special education services. In each example, while the end result would not be legally permitted if directed by some governmental decision maker, the presence of parental choice produces a permissible indirect path to the same policy outcome. This study traces the legal underpinnings of each example and discusses their implications for policymakers and practitioners.
The paper concludes that in each of these examples,
a new legal boundary that hinged on the relevance of parental choice in legal analysis was set with respect to permissive educational policies. As this examination shows, those shifting boundaries both free policymakers in some instances (e.g., the creation of private school vouchers; single-sex education) and constrain them in others (e.g., race-conscious policies to further integration, challenging parents’ refusal to permit special education).
Analysis of these instances of circuit breaker logic also raises important public policy questions that illustrate the implications of these legal boundary shifts and the importance of understanding them. Will continuing or increasing use of parental choice as a legal circuit breaker alter the value traditionally placed on equal educational opportunity? Will continuing or increasing use of parental choice as a legal circuit breaker result in situations in which parents’ rights and children’s rights are in tension with each other? Will continuing or increasing use of parental choice as a legal circuit breaker modify the principle of parens patriae as applied to education? In short, the use of parental choice as a legal circuit breaker raises questions about the values held dear by a society and the role public education plays in that society (Goodlad & McMannon, 1997; Minnow, 2010; Ravitch, 2010; Superfine, 2013). Whether the uses of parental choice as a legal circuit breaker outlined here signal a shift in those values remains to be seen. What is clear is that the application of the circuit breaker metaphor bears watching by all with an interest in education.
Wednesday, March 30, 2016
Education Law Prof Blog co-editor Derek Black (South Carolina) has posted Reforming School Discipline (Northwestern University Law Review, forthcoming) on ssrn this week. (March 30, 2016). In his article, Professor Black proposes a novel legal framework to connect school discipline reform efforts to the affirmative education rights and duties found in state constitutions. Below is the abstract:
Public schools suspend millions of students each year, but only five percent of suspensions are for serious misbehavior. School leaders argue that these suspensions ensure an orderly educational environment for those students who remain. Social science demonstrates the opposite. The practice of regularly suspending students negatively affects misbehaving students as well as innocent bystanders. All things being equal, schools that manage student behavior through means other than suspension produce the highest achieving students. In this respect, the quality of education a school provides is closely connected to its discipline policies.
Drawing on the connection between discipline and educational quality, this article pits harsh discipline as the enemy of good schools and debunks the narrative of bad students as the enemy of good ones. It also argues that this evidence, combined with the affirmative education rights and duties found in state constitutions, can be used to demand that states substantively reform discipline.
First, because students have a constitutionally protected individual right to education, suspensions and expulsions should trigger heightened scrutiny. Heightened scrutiny would not bar suspensions, but it would force states to justify the efficacy of suspension. The practical result would be to prompt states to adopt pedagogical sound approaches to student misbehavior. Second, discipline practices that undermine educational quality violate states’ constitutional obligation to provide equal and adequate educational opportunities to all students. In these instances, state constitutions should obligate states to intervene with reform.
A link to the full article can be found here.
The Southern Education Foundation has released a new report on private schools, race, and their rapid growth of vouchers in recent years. The report demonstrates that new programs are concentrated in the South. It also notes that there have been increased efforts at the federal level to use federal funds for vouchers. Those efforts have only failed by narrow margins. The point of the report is to signal the segregative threat that the expansion of these programs may pose.
In 2012, for instance, African American students were 15.8% of the public school population, but only 9.2% of the private school population. Conversely, whites were 51.7% of the public school population but 72.1% of the private school population. One might simply write this off to socio-economic disparities, but the report emphasizes that private schools in the south have historically been a reaction to integration and that over the past fifty years, the South's share of the nation's private school population has risen from less than 15% to over 30%. And when we look at the demographics of private schools in southern states, the disparities between public and private schools is even more shocking.
In Mississippi, whites were a slim majority in public schools in 1998, but were 90.8% of the private school population. In South Carolina, whites were 58.7% of the public school population, but 90.1% of the private school population. The most telling data point, however, was the variation among states. While the gap between white enrollment in public and private schools was significant in all but one southern state, the gap itself seemed to be a reflection of the how large the white majority was in public schools. The higher the percentage of whites in public schools, the lower their percentage in private schools. In other words, where whites were a stronger majority in public schools, there seemed to be less incentive to enroll in private school. Similar trends existed in 2012, although not as obvious. The report also includes similar data analysis for Hispanic and Asian students.
The report also focused on individual schools and what it calls virtual segregation:
The third measurement of this study examines more deeply patterns of over- and under-representation of students by race and ethnicity within each school in 2012 by identifying the private schools in the 50 states where white students comprise 90 to 100 percent of total enrollment. These rates and patterns are compared with the numbers for virtual segregated public schools in the states and regions.
In 2012, white students were far more likely to be educated in virtual segregation in private schools than in public schools. Forty-three percent of the nation’s private school students attended virtually all-white schools in contrast to 26.9 percent of public school students. Among the 50 states, South Carolina’s private schools had the largest disparity in segregated education between private and public schools: 63 percent of white students in private schools in South Carolina in 2012 were taught in segregated schools in comparison with only five percent of the state’s public school students. Mississippi had almost as large a gap – a difference of 56 percentage points. Seventy-one percent of white students in Mississippi private schools attended segregated schools, while 15 percent of the public schools’ white students were attending segregated schools.
It also identified virtual exclusion:
The final measurement quantifying and comparing racial and ethnic patterns in private schools identifies the numbers of white students attending schools with only 10 percent or less of under-represented students of color – African American, Hispanic, and Native American students combined. In one sense, virtual segregation can be understood as a measure of the extent white students are extremely “packed” into schools, and virtual exclusion as a measure of the extent under-represented students of color are extremely absent or excluded from school enrollment. The analysis also compares rates of virtual exclusion between private and public schools by state and region.
Nearly two-thirds of white students attending private schools across the 50 states were in schools that virtually excluded African American, Hispanic, and Native American students. The rate was 41 percent in public schools. Racial exclusion in South Carolina’s private schools exceeded the rate among its public schools by the largest margin among the 50 states. Eighty-four percent of the white students in South Carolina’s private schools were in racially exclusionary schools in 2012. This rate compared to 11 percent in the state’s public schools – creating a private school disparity of 73 percentage points. Private schools in Delaware had the nation’s second largest disparity in exclusionary schooling: 72 percent of all white students in Delaware’s private schools were in virtually exclusionary schoolhouses, but only four percent of the state’s public schools’ white students were in such schools.
Seven of the ten states with the largest measures of racial exclusion in private schools were in the South. Six of those seven states were the Deep South’s “freedom of choice” states. The percentage of white students in private schools in the 15-state South exceeded the percentage in the public schools by 37 percentage points – close to twice the disparity in racially exclusionary schools for white students elsewhere in the nation in 2012.
Get the full report here.
The extremely high rates of school discipline and referrals to the juvenile justice system by school officials, along with racial disparities in both, are well documented. The social science consensus is that harsh discipline and a heavy police presence in school are counterproductive. Schools would be far better served to adopt positive behavioral supports and restorative justice models, both of which would include more dispute resolution and counseling. That is what makes new data gathered by The74 so disturbing.
The news outlet gathered data on the nations largest school districts and found that four out of ten were had more security staff than counselors. In fact, New York City and Chicago had about twice as much security staff as counselors. Miami Dade had nearly three times as much security staff. Get the full story and data here.
Tuesday, March 29, 2016
Yesterday, plaintiffs sued North Carolina Governor Pat McCrory, challenging the constitutionality of a newly-enacted House Bill 2 that prohibits cities and counties from adopting their own anti-discrimination ordinances and instead established a state anti-discrimination that does not include transgender persons as a protected class. In the complaint, Carcaño v. McCrory, the plaintiffs allege that H.B. 2 violates the Equal Protection and Due Process clauses because it discriminates on the basis of sex and sexual orientation and is an invasion of privacy for transgender people. The plaintiffs further allege that the law violates Title IX by discriminating against students and school employees on the basis of sex by requiring transgender persons to use bathrooms by the gender on their birth certificates, rather than their gender identity. The lawsuit was filed in the U.S. District Court for the Middle District of North Carolina, with the ACLU, Lambda Legal, and the ACLU of North Carolina representing the plaintiffs. Today, North Carolina Attorney General Roy Cooper announced that his office will not defend the constitutionality of H.B. 2. Cooper has opposed the state's efforts in other anti-LGBT measures such as the state's same-sex marriage provisions, saying last month that the state "has gone off the tracks." The ACLU of North Carolina applauded Cooper's stance that House Bill 2, saying in a statement that the law is "not only incompatible with the state's constitutional and legal obligations but also our shared values as North Carolinians. We’re grateful the Attorney General stands on the on the right side of history with the many cities, states, businesses and individuals who have come out against this harmful measure." The complaint is here.
The Education Law Center issued this press release yesterday:
Education Law Center today sent a request to Commissioner of Education David Hespe and Schools Development Authority (SDA) CEO Charles McKenna for their respective agencies to immediately assess the elevated lead levels found in dozens of schools in the State-operated Newark Public Schools (NPS) and to fund and undertake any emergent repair projects to water supply systems necessary to eliminate this hazardous condition.
The ELC letter underscores the elevated levels of lead recently found in drinking water in NPS schools and the fact that this constitutes “a condition that, if not corrected on an expedited basis, would render a building or facility so potentially injurious or hazardous that it causes an imminent peril to the health and safety of students or staff.”
As the letter notes, the NJ Department of Education (DOE) and the SDA are mandated by NJ Supreme Court rulings in the Abbott v. Burke litigation and the state school construction law to fund, undertake and complete all repair projects to school buildings in NPS when faced with conditions that pose an imminent threat to health and safety. Put simply, DOE and SDA have a constitutional and statutory obligation to act to remedy any potential harm to the health and safety of school children discovered in NPS facilities.
ELC’s letter requests that DOE and SDA immediately initiate a Potential Emergent Projects (PEP) program to assess the extent of the lead contamination problem in all Newark schools, the building repairs that are needed, and the cost of such repairs, and to establish a schedule for undertaking and completing all repairs to alleviate the problem.
“Given the serious harm from ingesting lead, the Christie Administration must act, and act now, to protect Newark school children from exposure,” said David Sciarra, ELC Executive Director. “The DOE and SDA are legally obligated to fund and undertake all building repairs, on an emergent basis, to ensure the health and well-being of children attending NPS schools.”
ELC has also notified State District Superintendent Christopher Cerf so that NPS officials can facilitate the SDA and DOE effort. ELC also informed Mayor Ras Baraka and State Legislators representing Newark so that they can assist in holding SDA and DOE accountable for meeting their obligations to NPS children.
Policy and Outreach Director
973-624-1815, x 24
Matthew Bruckner has posted his new paper, Bankrupting Higher Education, to ssrn. He offers this abstract:
Many colleges and universities are in financial distress but lack an essential tool for responding to financial distress used by for-profit businesses: bankruptcy reorganization. This Article makes two primary contributions to the nascent literature on college bankruptcies by, first, unpacking the differences among the three primary governance structures of institutions of higher education, and, second, by considering the implications of those differences for determining whether and under what circumstances institutions of higher education should be allowed to reorganize in bankruptcy. This Article concludes that bankruptcy reorganization is the most necessary for for-profit colleges and least necessary for public colleges, but ultimately concludes that all colleges be allowed to reorganize in chapter 11.
Monday, March 28, 2016
One of Nation's Most Successful Districts Acknowledges Shortfalls in Diversity and Inequality, Makes Plans to Consider Reforms
Earlier this month, Montgomery County Public Schools in Maryland released a study of their school choice and special programs. Montgomery County has long had one of the nation's strongest public schools. Included in its strength has been its commitment to diversity and equal access. Like most, its implementation is rarely perfect, but this new report and its response to it indicate it is continuing to strive to do better. The report acknowledges that its current policies have not resulted in the integration and diversity the district seeks. In fact, it names of some hot-button policies and targets them for reform: admissions criteria to special programs, sibling preferences, and feeder patterns. Among the most poignant findings and recommendations are:
- Key Finding 2: Information and communications about MCPS’s wide variety of choice and special academic programs are not filtering to all segments of the community equally, which is impacting equity of access to the programs. MCPS has developed and implemented a wide variety of communication tools to share information about the programs with parents and community members. These include printed materials that are mailed to MCPS households in seven languages; information on the district’s website and PTA listservs and webpages; informational meetings at local schools in English and Spanish; program-level Open Houses; and outreach through school-based counselors, staff, and principals. Despite these efforts, data on program applications and from focus groups indicate that information about these programs is not reaching some segments of the community, namely Hispanic/Latino, Black/African American, non-English-speaking, and low-income families as well as they are to other groups. . . .
- Recommendation . . .: Develop and implement new strategies for communicating, outreach, recruitment, and sharing information with underrepresented or hard-to-reach families within MCPS. These strategies should include, but not be limited to: Streamlined communications in easily-understood language; Revision of existing communication tools for cultural validity; Outreach to families at community events or locations; More opportunities for one-on-one or in-person communications with and recruitment of families; and Additional materials and events held in languages other than English.
- Key Finding 3: There are significant racial and socioeconomic disparities in the enrollment and acceptance rates to academically selective programs, which suggest a need to revise the criteria and process used to select students for these programs to eliminate barriers to access for highly able students of all backgrounds. Data on applications and acceptances to elementary centers and secondary magnet and application programs show that Hispanic/Latino, Black/African American, Limited English Proficient (LEP), special education, and low-income students are less likely than White, Asian, and higher income students to be selected and enroll in these programs. As a result, Hispanic/Latino, Black/African American, LEP, special education, vi and low-income students are underrepresented in academically selective programs when compared with districtwide enrollment data. These data are found despite direct efforts by MCPS to increase representation of all groups in the elementary centers and the secondary magnet and application programs. The district utilizes multiple indicators in the selection process that include, in addition to cognitive assessments, teacher recommendations and other school-based input, report card grades, unique student profiles, demographic data such as eligibility for free and reduced-price meals (FARMS), and the lack of an intellectual peer group at the home school. Yet, the lack of diversity and underrepresentation of some student subgroups in these programs suggests that the process may rely too heavily on one or more indicators or may need to consider additional measures of student ability. These indicators may include broadening the definition of gifted to include noncognitive measures such as motivation and persistence, using group-specific norms that benchmark student performance against school peers with comparable backgrounds, offering automatic admissions for students in the top 5-10% of sending elementary or middle schools in the district, or using other methods that are outlined in the report and utilized in other districts across the country. Furthermore, these data also suggest that the district should use additional programs or tools, such as expanding the existing MCPS’s Young Scholars Program to identify students from underrepresented groups in early grade levels for academically selective programs. These programs would serve to increase the applicant pool of underrepresented students and encourage greater levels of participation.
- Recommendation 3a: Implement modifications to the selection process used for academically competitive programs in MCPS, comprising elementary centers for highly gifted students and secondary magnet programs, to focus these programs on selecting equitably from among those applicants that demonstrate a capacity to thrive in the program, that include use of non-cognitive criteria, group-specific norms that benchmark student performance against school peers with comparable backgrounds, and/or a process that offers automatic admissions to the programs for students in the top 5-10% of sending elementary or middle schools in the district.
- Recommendation 3b: Invest resources to expand and enhance early talent development programs for students of underrepresented groups in order to bolster participation of a broader segment of the MCPS student population in academically selective programs.
- Key Finding 4: The district’s implementation of some provisions in the current Board Policy JEE, Student Transfers, does not fully align with MCPS’s goal to provide equitable access to choice and special academic programs. Specifically, the Board’s current Policy includes two provisions that have been implemented in ways that do not fully support equitable access: 1) currently students are automatically admitted to an elementary language immersion program if they have an older sibling who currently attends the program; and 2) students who attend a vii particular middle school may continue in that school’s feeder pattern high school, without regard to programmatic reasons. . . .
- Recommendation 4a: Consider revisions to Policy JEE, Student Transfers, to clarify that the sibling link for immersion and other choice programs is not automatic; while siblings of applicants should be able to attend the same school where the special academic program is located provided that there are available seats, those siblings should be required to participate in the application process, such as the lottery for immersion programs to earn a seat in the program.
- Recommendation 4b: To the extent that the district considers revisions to Policy JEE, Student Transfers, to alter the automatic articulation from middle school to high school within the cluster feeder pattern or consider approvals for programmatic requests, MCPS should analyze the impact on both school capacity and its efforts to promote diversity and avoid racial isolation.
- Key Finding 5: The placement of special academic programs within local schools has increased the diversity of those schools’ student populations; but, in the absence of targeted mechanisms to integrate the program participants and non-participants, it has created conditions of within-school separation. . .
Friday, March 25, 2016
The 21st Century Schools Fund, U.S. Green Building Council, and the National Council on School Facilities have released their 2016 report on the state of the facilities in our nation's public schools. The report finds that we should be spending $145 Billion Per Year to meet the maintenance and expansion needs of our schools.
Using industry standards adapted to K–12 public school facilities, we estimate that the nation should be spending about $145 billion per year to maintain, operate, and renew facilities so that they provide healthy and safe 21st century learning environments for all children. Applying a 3 percent of current replacement value (CRV) standard for M&O, districts need to spend $58 billion annually to maintain and operate the 2014 inventory of public school facilities so they are clean and in good working order. On the capital side, the nation should be spending an estimated $77 billion per year (4 percent of CRV) to regularly upgrade existing facilities’ systems, components, ﬁxtures, equipment, and ﬁnishes as they reach the end of their anticipated life expectancy; systematically reduce the backlog of deferred maintenance that has accumulated; and alter existing facilities to respond to changing educational requirements. In addition, projections suggest at least another $10 billion per year is needed for new construction to accommodate growing enrollments over the coming decade. That brings the total annual facilities requirements to $145 billion per year.
Unfortunately, states are currently spending $46 billion less per year than these projected requirements.
The nation’s current system of facilities funding leaves school districts unprepared to provide adequate and equitable school facilities. Comparing historic spending against building industry and best-practice standards for responsible facilities stewardship, we estimate that national spending falls short by about $8 billion for M&O and $38 billion for capital construction. In total, the nation is underspending on school facilities by $46 billion — an annual shortfall of 32 percent. Gaps vary by state and local district, depending on investments by local communities and the structure of school facilities funding at the state level. Nevertheless, investment levels in all states but three will not meet the standards.
Thursday, March 24, 2016
North Carolina Blocks Transgender Persons' Access To Public Facilities That Reflect Their Gender Identities
The state legislative trend continues to require transgender persons to use public facilities that align with the biological gender on their birth certificates rather than their gender identity. We've noted several state legislative efforts in this direction, most recently about Tennessee's law creating a lock-in exclusion for transgender students because another state law prohibited the state from recognizing sex changes on birth certificates. Yesterday, North Carolina Governor Pat McCrory signed the Public Facilities Privacy & Security Act (H.B. 2), which requires that multiple-occupancy bathrooms and locker rooms in public schools and government buildings be used by persons only according to their biological sex. The new law also blocks local governments from enacting ordinances to allow transgender people to use public bathrooms that match their gender identities -- targeting Charlotte's anti-discrimination ordinance passed last month that allowed people to choose restrooms corresponding to their gender identity. When the Charlotte ordinance was passed, Gov. McCrory commented that the law was a threat to public safety, so the swift response by the N.C. General Assembly was expected. Responding to H.B. 2's passage, Chris Brook, Legal Director of the ACLU of North Carolina, stated on the ACLU website, "We are disappointed that Governor McCrory did not do right by North Carolina’s families, communities, and businesses by vetoing this horribly discriminatory bill, but this will not be the last word." More on the new law here.
The past week has produced a spat of stories about the potential redrawing of school attendance boundaries in Loudon County Virginia, which rests in the exurbs of Washington, DC and in recent years has ranked as the wealthiest county in the nation. Despite its wealth, Loudon has pockets of poverty. One is a largely Hispanic neighborhood. The neighborhood, however, is relatively small and, for the past several years, Loudon has assigned students from that neighborhood to several different elementary schools. The purpose and effect has been to deconcentrate poverty there and increase diversity elsewhere--exactly what decades of social science would implore districts to do. Now Loudon is considering a plan to redraw attendance zones and assign all of those low-income Hispanic students to one of two elementary schools. It would, as a result, create two new high poverty schools, where none previously existed, and eliminate economically diverse schools, where they previously existed.
The troubling question is why? According to reports by the Washington Post, the district offers two rationales. First, the new high poverty schools would qualify for more federal resources. Second, teachers would be better able to focus on the special needs of disadvantaged students.“When you have students that have common needs, you can direct your instructional methods in that manner and you have more resources because you have more students with that particular need,” said school board member Jill Turgeon, who is also a former teacher in the district. “When we’re balancing demographics . . . to me we’re watering down the focus we need to have on the students.” Likewise, by removing students with special needs from diverse schools, teachers can better serve the needs of students from wealthier neighborhoods. “I think there are a lot of benefits in allowing a natural grouping of the students according to their neighborhood,” school Turgeon.
Tuesday, March 22, 2016
Finding Common Ground Across Race and Religion: Judicial Conceptions of Political Community in Public Schools
Stuart Chinn (Oregon) has posted Finding Common Ground Across Race and Religion: Judicial Conceptions of Political Community in Public Schools (March 16, 2016), Utah Law Review, Forthcoming) on ssrn. In the article Professor Chinn analyzes Supreme Court cases on race-and-public education and religion/ideology-and-public education to explore how do we construct and maintain a stable political community characterized by intractable difference? From the abstract:
Elementary and secondary public schools constitute perhaps the most direct point of contact between most American children and the state. Thus, these institutions have great opportunity for shaping future participants in the American political community and for imparting the particular values that will help constitute that community. Relatedly, my focus on judicial conceptions of political community in the public school context provides the key attraction of hearing discussion of these themes by major national political actors within the illuminating format of principle-based judicial opinions. In the article, I make three primary claims. The first is a point of similarity across the racial and religious/ideological contexts. I will claim that judges have seen public schools as a cultural adhesive force. That is, the precise manner in which public schools bind students together is by virtue of the physical proximity of students to one another, and their observation in, participation in, and creation of a common culture. However, this doctrinal comparison yields a key difference too, and this constitutes my second claim: in the race-and-public education context, the central problem that has appeared in the doctrine — and the main problem that has animated judicial conceptions of community in that context — has been the problem of community creation. That is, judges have largely pondered the justifications and limits upon the state’s authority to create racial plurality in public schools. Such arguments proceed from background assumptions of minimal racial plurality absent the contemplated state actions. In contrast, in the religion/ideology-and-public education context, the major cases and judicial arguments on plurality within public schools are preoccupied with the problems of community maintenance. That is, judges have pondered the justifications and limits upon state actions toward maintaining stable communities in public schools in the face of individual claims of religious freedom and competing state claims favoring uniformity. In contrast to the racial context, the background presumption here is one of inevitable religious/ideological plurality in public schools, even absent the contemplated state actions.
Finally, I offer a third and final claim: for community-builders, maintenance problems are easier than creation problems. This point, in turn, suggests that while plurality may be inevitable, plurality within a communal structure holds greater hope for lines of division to be overcome. This is due to the potential for the culture intrinsic to a community to serve as an adhesive across lines of division. Thus to the extent that one finds the goals of community and unity to be worthwhile, at least some of the time, this observation implies that mechanisms that situate plurality within community are often preferable to letting plurality persist between distinct communities.
Handcuffing a Third Grader? Interactions Between School Resource Officers and Students with Disabilities
Elizabeth Shaver has posted Handcuffing a Third Grader? Interactions Between School Resource Officers and Students with Disabilities (March 18, 2016), Utah Law Review, 2017 on ssrn. From the abstract:
After an eight-year old boy with disabilities refused to sit down, a School Resource Officer (SRO) handcuffed the boy's elbows behind his back, restraining the child for fifteen minutes. A video of the incident made national headlines. Thereafter, the boy, along with another child with disabilities who had experienced similar treatment, filed suit. Cases like this highlight the complex issues that arise when a student with disabilities engages in undesired behavior at school and that behavior leads to the intervention of an SRO. This article examines those issues and offers recommendations. It begins by providing a background about SROs, focusing on their training and responsibilities. Next, the article reviews the provisions of the Individuals with Disabilities Education Act (IDEA) that pertain to the use of behavioral interventions to address undesired behavior of students with disabilities. The article then provides a legal analysis of lawsuits brought by students against SROs. These cases reveal the need for a comprehensive training program for SROs, clear delineation of the scope of - and limitations on - the SRO's duties, and strict adherence by both school personnel and the SRO to their respective roles. Therefore, the article offers recommendations that involve a variety of stakeholders, including school administrators, teachers, SROs, and parents of students with disabilities.
Monday, March 21, 2016
Securing legal representation is critical for private enforcement of constitutional and statutory rights, and thus rulings that restrict attorneys' fees in such cases will impact rights enforcement. The Fifth Circuit recently released a decision holding that obtaining a stay-put order under the Individuals with Disabilities Education Act (IDEA) is not sufficient to qualify a litigant as a “prevailing party" who is entitled to attorneys' fees. The Fifth Circuit now joins the Third and Seventh Circuits in holding that stay-put orders are interim in nature and because such orders do not address the merits, they do not entitle plaintiffs to attorney fee awards. In the case, Tina M. v. St. Tammany Parish School Board, the plaintiff's son, S.M., a student with a disability under the IDEA, was involved in an off-campus incident that prompted his school to propose an Individualized Education Program in which S.M. would receive at-home tutoring. S. M.’s mother disagreed with this proposal and refused to consent to the IEP change. At a due process proceeding, the Administrative Law Judge granted a stay-put order for S.M. to remain in school pending a decision on the merits. After that order, the parties reached a settlement through mediation, and the plaintiffs moved to terminate the pending administrative hearing on the merits. The ALJ terminated the matter and never reached the merits of the plaintiffs’ claims. The plaintiffs then sought attorneys' fees in the Eastern District of Louisiana under the IDEA's fee shifting provision, 20 U.S.C. § 1415(i)(3). Analogizing the ALJ's stay-put order to a successful preliminary injunction, the district court found that the plaintiffs were the prevailing party for purposes of obtaining attorneys’ fees under the IDEA. The Fifth Circuit reversed. Under section 1415(j) of the IDEA, the circuit court noted, a court deciding a stay-put request simply determines a child’s placement and enters an order maintaining that placement. The IDEA requires an automatic stay in such cases with no merits component to the finding, unlike a preliminary injunction. The stay-put order also did not permanently alter the legal relationship of the parties so that the plaintiffs could be found to have prevailed. “Rather,” the court stated, “it merely provided that S. M. could continue with his prior educational program until a decision on the merits was made.” While the court nodded to the importance of maintaining a child’s placement during due process proceedings, the interim relief of the stay-put order was not merits-based, and thus ineligible for attorneys’ fees. The case can be found at Tina M. v. St. Tammany Parish School Board, No. 1530220 (5th Cir. Feb. 23, 2015).
The Obama Administration has taken consistent and progressive steps to protect the rights of LGBTQ youth, including policy guidance and most recently filing a brief in favor of Gavin Grimm in his Fourth Circuit appeal seeking equal access to facilities at his school. But as these progressive steps occur at the federal level, some states are attempting to move backward. Earlier this month, I posted on a Tennessee School District that would rather eliminate all extracurricular activities than allow the Gay-Straight Alliance to form in its schools. Now that way of thinking as edged up the road to the state house. This time, however, the policy is even more pernicious and not just about extra-curricular activities, and not just about elementary and secondary schools. Tennessee is considering legislation that permanently exclude transgender students from bathrooms and locker rooms at its public schools and its colleges and universities. The legislation would require students to use facilities that match the sex “indicated on the student’s original birth certificate.” The full text provides:
SECTION 1. Tennessee Code Annotated, Title 49, Chapter 2, Part 1, is amended by adding the following language as a new section: Public schools shall require that a student use student restroom and locker room facilities that are assigned for use by persons of the same sex as the sex indicated on the student’s original birth certificate.
SECTION 2. Tennessee Code Annotated, Title 49, Chapter 7, Part 1, is amended by adding the following language as a new section: Public institutions of higher education shall require that a student use the restroom and locker room facilities that are assigned for use by persons of the same sex as the sex indicated on the student’s original birth certificate.
SECTION 3. This act shall take effect upon becoming a law, the public welfare requiring it.
As Tennessee law currently stands, this new legislation would lock-in exclusion for transgender students because another state law prohibits the state from recognizing sex changes on birth certificates. As many recall, South Dakota passed similar legislation recently, but the governor there vetoed it.
Professor R. George Wright, Indiana University Robert H. McKinney School of Law, has posted a new article to ssrn titled Campus Speech and the Functions of the University. His offers this description in his abstract:
The roles and limits of free speech on university campuses have lately been of increasing interest. This Article suggests that as long as our understandings of the basic functions of the university itself are conflicting and contested, our understandings of the proper scope of free speech on campus will be similarly irreconcilable, even if we think of the university in terms of community. The Article explores this thesis through considering, in particular, problems of hostile speech, of professorial academic freedom, and of speech by students transitioning into professional service roles.