Monday, June 22, 2015
The Supreme Court decided Ohio v. Clark last week, a case that we discussed earlier in the summer here, holding that a three-year-old's statements to his preschool teachers that his mother's boyfriend had hit him could be admitted at trial even though the child did not testify. The Court found that the child's statements were not "testimonial" under the Sixth Amendment because they were made in response to his teachers' questions about his injuries and not for the purposes of criminal law enforcement. The Court also indicated that in most instances, statements of non-testifying young children to daycare workers or teachers can be admitted at trial without violating the Confrontation Clause. Read the opinion here.
Earlier this month, Colorado Governor, John Hickenloper, signed into law a bill that expands public schools’ liability in regard to school shootings. The bill waives government immunity for schools if the school is deemed to have failed to exercise “reasonable care” to prevent “reasonable foreseeable” harm. Advocates of the bill say that the bill ensures that schools will take student safety seriously and do as much as they can to prevent harm. Opponents of the bill point out that school safety is far more complicated than the bill would suggest and invites juries to retrospectively second guess schools. Juries might determine that a shooting was “reasonably forseeable” or could have been anticipated, when such a conclusion is only possible after the fact. The new law permits claims up to $350,000 per victim or 900,000 per incident. The bill was named after 2013 Arapahoe High School shooting victim Claire Davis. Before the passage of this bill, Colorado public schools were only liable for willfully negligent actions and ignoring threats to student and staff safety.
The 9th Circuit Court of Appeals has issued a new decision in Flores v. Arizona, the long running English Language Learner ("ELL") litigation in Arizona. The Ninth Circuit upheld the district court’s finding that the state was taking “appropriate action” to meet the educational needs of ELLs and, thus, in compliance with the Equal Educational Opportunities Act. This recent litigation stems from the remand by the Supreme Court in Horne v. Flores in 2009, where the Court had found that the lower court erred in failing to sufficiently consider whether changed circumstances entitled the state to an equitable modification of the existing consent decree in the case.
In this recent round of litigation, the plaintiffs challenged the State’s newest ELL program. The new program requires ELLs to be separated from their classmates for four hours per day to focus solely on learning English. Plaintiffs argue this violates the Equal Educational Opportunities Act because students do not get to make up the subject matter they miss while in regular education while they are in their English acquisition classes. In other words, they receive less academic content than their classmates. The Ninth Circuit disagreed and also indicated the challenge was premature in any event: while "[t]he Flores Plaintiffs appear to be challenging the four- hour model as facially violating the EEOA,” they are actually “attacking the implementation of the four-hour model” after just one year of the program. The relevant three-prong standard for evaluating ELL programs includes a timing element, under which states and districts are afforded an opportunity to demonstrate that the program works. See Castenada v. Pickard, 648 F.2d 989 (5th Cir., 1981).
Friday, June 19, 2015
Yesterday, thirty six civil rights groups released a letter to the Senate on ESEA reauthorization. The signatories included all the major organizations, including the Leadership Conference on Civil and Human Rights, the NAACP, NAACP LDF, MALDEF, Lawyers' Committee for Civil Rights, National Urban League, and Ed Trust. This is not the first time civil rights organizations have weighed in on reauthorization in the past year or so, but it may be the most significant.
That they penned the letter yesterday is probably indicative of the growing sense that we could be on the verge of reauthorization. As noted earlier this week, the House has revived their earlier bill. The letter is also significant in the poignancy and substance of its recommendations. Overall, the letter reflects a fear of erosion of the federal role in education, which is the general effect in the current bills before the House and Senate.
The letter makes four points: keep accountability for all schools, keep disaggregated demographic data, ensure resource equity, and maintain the Secretary's authority to enforce the law. Keeping accountability and disaggregated data are really just requests that Congress not throw the baby out with the bathwater in reauthorization. Mend it, don't end it. The last two points, however, have a lot of depth to them.
When reauthorization was being seriously debated in 2007 to 2008--the time it should have been reauthorized to begin with--a tremendous amount of focus was on how irrationally Title I dollars are distributed and how little current standards do to actually ensure comparability in resources across schools. Most notable is the fact that teacher salaries are about 80% of schools' budgets, but are exempted from any real dollar comparability. It is an enormous loophole. While we can and will debate substantive theories about how to improve educational outcomes for decades to come, equity is reality simple and should not require debate. Racial and socioeconomic equity of resources was one of the founding pillars of the Elementary and Secondary Education Act. Yet, it has been increasingly lost in recent reauthorizations. The current conversation suggests it will happen again this time. See here for more on this point.
The last point about the Secretary's authority is an outgrowth of the legal and political contests surrounding NCLB waivers. As I explain here, the conditions that the Secretary imposed on NCLB waivers were either beyond his statutory authority or unconstitutional. And legalities aside, the authority the Secretary exercised during the waiver process enraged many. The backlash has prompted a legislative move to strip the Secretary of much of his or her power. It has also prompted what I would call a minimization of the federal role in education, which appears to be more of an overreaction than a reasoned reaction.
One can only hope this messages do not fall on deaf ears.
Thursday, June 18, 2015
The New York Immigration Coalition’s newest report shows systemic failures to offer translation and interpretation services for parents in New York City’s schools. Such failures, of course, would be potential violations of several federal education laws, including Title VI, the Equal Education Opportunities Act, and the Individuals with Disabilities in Education Act.
The report finds that:
- Half of parents are missing critical information because it’s not translated or because they don’t have an interpreter.
- More parents report never receiving services now than in 2007.
- Parents are relying on children to interpret on a large scale despite the DOE’s own regulations prohibiting this practice in most settings.
- Almost a decade after the Chancellor codified parental language access rights and formed a special unit, a large percentage of parents still don’t know that they can get translation and interpretation.
- Lack of access to translation and interpretation greatly impedes parents’ ability to be engaged in their children’s education.
The Southern Poverty Law Center and Flagler County Schools in Florida a reached a settlement to resolve a claim of discriminatory discipline. The original complaint had alleged that "African-American students accounting for 31 percent of all out-of-school suspensions during the 2010-11 school year even though they were only 16 percent of the student population." Under the agreement, the School Board adopted a wide-ranging plan to eliminate racial disparities in school discipline . Rather than permitting unilateral school level decision, the school district itself will have to approve suspensions of five or more days this upcoming school year, and suspensions for three or more days in the next school year. In addition, staff will receive cultural competency and implicit bias training. A committee will monitor discipline data on a regular basis to monitor progress. The district will consider abolishing suspensions altogether once it develops an alternative school program, peer mediation, and restorative justice practices. The district also committed to work with law enforcement to reduce in-school arrests.
SPLC is still pursuing federal civil rights complaints in Escambia, Bay, Okaloosa and Suwannee county school districts.
Wednesday, June 17, 2015
Last year, the Second Circuit Court of Appeals held that the claims against the New York Board of Education could move forward. Plaintiffs had alleged the Liberal Arts and Sciences Test (“LAST”) had a disparate impact on African Americans, was not validated as job related, and, thus, the state's use of it violated Title VII. The case was remanded back to the trial court. Earlier this month, the trial court in Gulino v. Bd. of Educ. of City Sch. Dist. of City of New York, 2015 WL 3536694 (S.D.N.Y. June 5, 2015), found:
After reviewing all of the evidence offered by Dr. Outtz and the parties, including expert opinions and the Equal Employment Opportunity Commission's Uniform Guidelines on Employee Selection Procedures, . . . that the BOE unfairly discriminated against African–American and Latino applicants by requiring them to pass the LAST–2. Like its predecessor, the LAST–2 had a disparate impact on African–American and Latino test takers. And like its predecessor, the LAST–2 was not properly validated as job related, because the exam's designers did not employ procedures to identify the specific areas and depth of knowledge of the liberal arts and sciences that any competent teacher would need to understand. The BOE's use of the LAST–2 was thus unfairly discriminatory under Title VII.
The movement to allow charter schools to operate free from regulation by local school districts, and in some instances, by state education departments, was intended to encourage innovative approaches to education. But states are learning that when money is involved, allowing charters charters to operate without sufficient oversight also fosters fraud and waste. Ohio's charter school system has been criticized for poor results, no-show students, and not counting online students' Fs in courses. Those following the national scrutiny of Ohio's charter school system (examples here and here), have seen Ohio Gov. John Kasish try to fix the state's charter school regulation. But the current legislation before the Ohio Senate will not do the job, charter school advocate Chad Aldis wrote today. The problem is that the current bill still allows charters to shop for "sponsors," the organizations that oversee the charters' performance -- and to seek sponsors who will set the bar low. Further, Ohio pays sponsors up to 3 percent of the funding received by the schools that they sponsor with no statutory restrictions on how sponsors can spend those funds, a system that allows a symbiotic relationship incompatible with rigorous oversight. Read more on Ohio's bill here.
Tuesday, June 16, 2015
Yesterday's Los Angles Times offered a pretty bleak picture of the state of public higher education. The overall trend is a sharp increase in tuition since 2008 and a decrease in public funding for universities. In nine states, tuition has increased by more than 50%. The increase in Arizona is a whopping 83.6%. Only ten states managed to keep tuition growth below 15%, which would have amounted to an arguably reasonable set of annual increases (just over 2% a year during a time of non-existent inflation). The California Budget Project goes back further in time a traces the spending on prisons versus universities, finding that in 1980-81 California corrections accounted for 2.9% of the state budget and the state's university systems 9.6%. By 2014-2015, the proportions were reversed -- corrections were 9% of the state budget and the universities down to 5.1%.
The LA Times article does a good job of explaining the politics that is producing this result. But regardless of why it is happening, this declining state support and sharp increase in the cost of attendance also begs the question of how many of our state universities can be fairly characterized as "public" and how long they will continue to be?
Recent scholarship posted on ssrn includes papers on the DOJ's demand that Wisconsin intervene in the treatment of special needs students who use vouchers to attend private schools; the Title IX implications of the the O'Bannon and Northwestern college athletics cases; and the school-to-prison pipeline crisis for Montana's Native American students.
Wendy Fritzen (Georgia State), The Limits of Federal Disability Law: State Educational Voucher Programs, Journal of Law & Education (2015)
The U.S. Department of Justice is currently investigating the state of Wisconsin with respect to its administration of the Milwaukee Parental Choice Program (MPCP), which provides low-income students with public money to attend private schools. Faced with complaints of disability discrimination by private schools accepting voucher students, DOJ has ordered Wisconsin to oversee and police these schools to ensure compliance with Title II of the Americans with Disabilities Act, which applies to states and their agencies, and § 504 of the Rehabilitation Act, which applies to recipients of federal funding. Although conditioning its directive on the state's coverage under these statutes, DOJ in an unprecedented move also strongly hinted that participating schools may themselves be subject to Title II by accepting voucher students. If correct, this contradicts existing agency precedent, has significant implications for states administering voucher programs, and may impose burdens on private schools far beyond Wisconsin's borders. This article evaluates the legal authority for DOJ's directives to Wisconsin and explores the broader question of whether Title II and § 504 obligations attach to the actions of private schools participating in voucher programs.
Melina Angelos Healey (Loyola Chicago), Montana's Rural Version of the School-to-Prison Pipeline: School Discipline and Tragedy on American Indian Reservations, 75 Mont. L. Rev. 15 (Winter 2014)
American Indian adolescents in Montana are caught in a school-to prison pipeline. They are plagued with low academic achievement, high dropout, suspension and expulsion rates, and disproportionate contact with the juvenile and criminal justice systems. The tragic situation of these children on remote reservations in the Northeast corner of Montana has received far too little attention. This article presents relevant regional data, heretofore largely unexamined, and provides some personal narratives that demonstrate the shocking educational inequities American Indian children suffer in Montana. It also makes recommendations for addressing the problem.
Erin Buzuvis (Western New England), Athletic Compensation for Women Too? Title IX Implications of Northwestern and O'Bannon, Journal of College and University Law
The NCAA has been relying on Title IX requirements to defend its polices prohibiting compensation for college athletics; it argues that paying athletes in revenue sports, coupled with the commensurate obligation under Title IX to pay female athletes, would be prohibitively expensive. As a response to the NCAA’s argument, the Author seeks to advance two positions: first, that Title IX would, as argued by the NCAA, require payment of female athletes using some measure of equality; and, second, that athletes are being exploited by the present system. Ultimately, the Author reframes the application of Title IX to athlete compensation by proposing two alternative outcomes: either college athletics departments could reform their programs by curtailing the ways in which they have become overly commercialized programs and thus avoid the application of antitrust and labor laws, or they could reform themselves by abandoning their connection to education and the subsidy that comes with it.
Monday, June 15, 2015
The Brown Center on Education Policy at Brookings hosted a panel of experts last week to discuss the potential for reauthorization. They were generally optimistic. Watch the panel here. They would also seem to be prescient. On the same day of the panel, the House indicated it was bringing the Elementary and Secondary Education Act back to the floor. The bill had previously died when warring factions within the Republican Party sought to load the bill down with their own ideology for reform and were told that if they voted for a stripped down bill it would count against their on conservative scorecard rating. A new proposed procedural solution would allow them to save face.
A summary of the Brown panel follows the jump.
Friday, June 12, 2015
Over the past year and a half, significant movement has happened at the state level to help expand rights for transgendered students seeking to use restrooms that conform to their gender, but somehow the issue had evaded the federal courts. Most notable at the state level, Nicole Maines fought and won a battle in the Maine Supreme Court, relying on the Maine Human Rights Act.
In January of this year, in an effort to federalize this issue, the ACLU filed an administrative complaint against Gloucester County Schools in Virginia on behalf of Gavin Grimm with the Office for Civil Rights at the U.S. Department of Education, presumably arguing that his exclusion from the boy's bathroom violated Title IX. OCR complaints, however, are private and little more than the notice of the complaint came to light at the time. Apparently, the complaint was not resolved to Gavin's satisfaction.
This does not mean that OCR was not on his side. The administrative process is heavily weighted on voluntary compliance, which recent news reports would suggest the School Board would have been unwilling to provide. Gavin had previously been allowed to use the boys' bathroom, but when religious and other concerned groups discovered this, they came out in heavy opposition, leading to an official school board vote banning his use of the boy's restroom. As a side note, it appears the public discourse surround this vote was despicable in its personalized and dehumanizing nature.
The case is now finally moving to federal court, where it is sure to receive enormous attention and set important precedent. See here for more.
Thursday, June 11, 2015
In 2013, North Carolina achieved, through legislation, what the plaintiffs in Vergara v. State in California are trying to achieve through litigation: the elimination of tenure and the minimization of due process limitations on terminating teachers. Last year, a North Carolina trial court struck down the legislature's attempt. The court held that the changes violated the state constitution's contracts clause. Given the prevailing pressures in the state and the legal theory upon which plaintiffs had prevailed, whether the decision would hold on appeal was far from clear.
A little over a week ago, however, the Court of Appeals of North Carolina affirmed the trial court, agreeing that the elimination of tenure and certain processes violated the state contracts clause. The contracts clause precedent in the state is not necessarily important in an of itself, at least not outside the state. States vary in how and whether they treat tenure as a vested contractual right. (See pages 17 to 18 of this article for more on that point). What is important nationally is the factual necessity analysis that occurs within contract clause analysis, regardless of the state. Even if tenure or due process creates a vested right, precedent still allows states to take the right away if they can establish an important state interest in doing so and that the particular action the state took was reasonable and necessary to achieve that state interest.
This North Carolina court's analysis on this last point-the reasonableness and necessity of eliminating tenure--is a direct repudiation of the theory of Vergara. The North Carolina court accepts that improving teacher quality and education quality are important interests, but rejects the state's argument that eliminating tenure and process are reasonable or necessary means of achieving that end. The court's analysis is sufficient lucid that it bears an extended quote here:
The American Institutes of Research has released a nine-year study, What Happens When Schools Become Magnet Schools? A Longitudinal Study of Diversity and Achievement (Julian Betts, UC San Diego and Sami Kitmitto, Jesse D. Levin, Hans Bos, and Marian Eaton, AIR). The AIR study found that while there was some evidence that the schools were successful in increasing diversity, there was inconclusive evidence of increased student achievement. The AIR reviewed the performance of 21 elementary schools in 11 school districts from 2002-2011. From the AIR's report, here are the key findings:
- The most concrete evidence of conversion’s effects was a decline in the concentration of minority students in traditional magnet schools. On average, neighborhood schools that converted to magnet schools initially served 84.5 percent minority students, compared to an average of 64.1 percent in their district. After conversion, the percentage of minority students at traditional magnet schools remained virtually unchanged (84.9 percent) while the concentration of minorities in the district as a whole rose to 66.3 percent. Thus, the demographics of the magnet school became more like those of the district—one goal of this type of conversion.
- Achievement in traditional magnet schools was higher after conversion, outpacing district achievement in English language arts (ELA), but not in math. Average ELA achievement in traditional schools went up by an average of 8.1 percentile points, while average achievement in the districts went up by an average of 5.6 percentile points.
- Achievement in destination magnet schools lost ground to their districts over the conversion period. After conversion, ELA achievement in the districts increased by 6.9 percentile points while achievement in the magnet schools changed little, rising just 1.4 percentile points. Average math achievement in the districts rose 8.9 percentile points after conversion while achievement in the magnet schools did not change.
Wednesday, June 10, 2015
The Education Law Center's annual report on school funding fairness is now available. For those unfamiliar with the past reports, they provide a sophisticated analysis of all 50 states that breaks school funding into four distinct metrics: the adequacy of the actual funding level in each state; the extent to which a state fairly distributes the funds it has, regardless of the adequacy of those funds; the effort a state exerts to fund education (a poor state can try hard and still produce inadequate funds); and the extent to which public schools are educating all of the states students and, if not, how those students differ from those in private school.
Tuesday, June 9, 2015
Florida Gov. Rick Scott acquiesced in April to complaints that teachers' evaluations were too heavily weighted to how well their students performed on state standardized tests, signing into law a measure to the reduce the percentage that student scores made up of teachers' evaluations from half to one-third. But one Florida county, Polk County, recently announced that student standardized scores would have no impact on its teachers' evaluations this year. Polk County says that it is bound by a clause in a collective bargaining agreement with a teachers union and therefore it cannot follow state law. The clause prevents the Polk County school district from using student scores as a job-performance factor until both the district and the union, the Polk Education Association, mutually agree on the evaluation system. If the contract provision prevails, similar clauses could impact Florida's teacher evaluation system throughout the state. Read the article about the district's stance here.
Monday, June 8, 2015
This weekend the New York published an opinion piece by Lee Siegel in which he says he was confronted with the choice of "giv[ing] up what had become my vocation (in my case, being a writer) and [taking] a job that I didn't want in order to repay the huge debt I had accumulated in college and graduate school. Or I could take what I had been led to believe was both the morally and legally reprehensible step of defaulting on my loans, which was the only way I could survive without wasting my life in a job that had nothing to do with my particular usefulness to society." He "chose life" and defaulted on his loans. He, of course, then goes on to further support his choice.
Aaron Taylor offers this response:
I recently authored a post lamenting the effects of misinformation on the decision making and outlook of student loan debtors. My premise was that most of the commentary on student loans betokens a fundamental misunderstanding of the student loan system, particularly, the scope and extent of income-based repayment options. This misinformation is especially dangerous because much of it is peddled by individuals who position themselves as experts and publications that are viewed as trustworthy.
Friday, June 5, 2015
For the past five or so years, concerned citizens have been in active litigation with the Pitt County Board of Education. The litigation arises out of a longstanding desegregation order, which seems to have to come an end with the most recent decision in the case. In the late 1960s and early 1970s, a district court had found both the county and city school systems to be segregated and ordered them remedy to their constitutional violations. They were slow to do so. In 1986 the districts merged into one county system, believing this might help in the overall management of student assignments. No court ever declared either district unitary.
Fast forward to 2006 when the district adopted a student assignment plan that explicitly considered race and whose purpose was to racially balance the schools. At this point, the district was still under court order. Thus, not only could it have taken such action, Supreme Court precedent in Green v. New Kent County and Swann v. Mecklenberg would have mandated such action.
A private parent association, however, objected to this desegregation plan and employed a strategy similar to the one that had brought an end to desegregation in Charlotte: they moved to have the district declared unitary and, thus, subject the consideration of race to strict scrutiny.
Flagler County Schools (FL) agreed to change its disciplinary practices after being sued for racial discrimination against African-American students, reports the Daytona Beach News-Journal. The Southern Poverty Law Center filed a complaint against Flagler Co. Schools in 2012 for removing and arresting black students more harshly than white students. The complaint alleged in the 2010-11 school year, black students made up 16% of the Flagler Co.'s school population, but were 31% of the in-school and out-of-school suspensions and 69% of expelled students. The complaint also alleged that black students were retained at a disproportionate rate of 22%. Flagler Co. school officials told the media that it will, subject to the school board's approval, reduce out-of-school suspensions and form a citizens’ committee to monitor discipline practices. The district also reportedly agreed to reserve out-of-school suspensions for situations when there’s a safety concern, and require district approval for suspensions lasting five days or more. Starting in August 2016, the district will require approval for any suspension of three days or more and consider eliminating out-of-school suspensions altogether.
Thursday, June 4, 2015
The Department of Education reportedly plans to fund a $1.6 million study to review the effectiveness of online community education, following a number of smaller studies that have found that some students are less likely to complete or to do well in online courses. Last year, the Public Policy Institute of California's study of online community college courses found that student success rates in online courses are between 11 and 14 percentage points lower than in traditional courses. The PPIC's study was noteworthy as California has the nation's largest postsecondary education system. Some good news in the PPIC study found that students who take at least some online courses were more likely than those who take only traditional courses to earn an associate’s degree or to transfer to a four-year institution. More data is available in a 2013 study at Columbia University, Teachers College, Di Xu & Shanna Smith Jaggars, Examining the Effectiveness of Online Learning Within a Community College System: An Instrumental Variable Approach.