Monday, March 21, 2016
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.
Friday, March 18, 2016
The Southern Poverty Law Center issued this press release earlier this week:
Alabama's funding of public education gets mostly low marks in the recently released fifth edition of Is School Funding Fair? A National Report Card. The state's unfair distribution of funds and failure to fund at a level sufficient to support its public schools earns Alabama poor marks when compared to other states in its region, and beyond.
"If Alabama wants to ensure every child receives a quality education, it must adequately fund its schools," said Rhonda Brownstein, legal director of the Southern Poverty Law Center. "This report card confirms findings from an earlier report commissioned by the Alabama State Department of Education that clearly shows the state is failing its students -- particularly its most vulnerable students living in impoverished communities."
The National Report Card (NRC), issued annually by the Education Law Center (ELC) and Rutgers University, evaluates states on four separate, but interrelated, "fairness indicators" -- funding distribution, funding level, state fiscal "effort," and public school "coverage." The NRC provides the most in-depth analysis to date of state public education finance and school funding fairness.
Alabama receives an F in the important funding distribution indicator, which measures the extent to which a state's funding system is structured to recognize the additional resources required for students in a setting of concentrated student poverty. In Alabama, the pattern is actually regressive with higher poverty districts receiving, on average, only about 90 cents for each dollar their more well-to-do counterparts receive. Such a skewed funding system thwarts efforts to improve achievement and narrow achievement gaps.
Also, the state's overall funding level is well below average, ranking 38 out of 49, even though the National Report Card (NRC) adjusts for regional wages, economies of scale, and other factors. Alabama's average state and local revenue per pupil in 2013 was $7,670, over two thousand dollars below the national average of $9,766 per pupil.
On a brighter note, Alabama receives a B on its effort to invest in its schools. Effort is based on the percentage of the state's Gross Domestic Product (GDP) allocated to education. The state's funding system devotes a good share of its relatively low economic capacity to its public schools. Nonetheless, the state's effort dropped 14% after the 2008 great recession set in and has not recovered.
Finally, Alabama is below average on "coverage," which examines the share of school-aged children who attend public schools and compares the median household income of those children with the income levels of families who do not use public schools. While about 13% of Alabama school children attend nonpublic schools, the income disparity between public and nonpublic school households is high, with nonpublic households earning more than one and a half times the earnings of public school households, on average.
"This report provides policymakers, legislators, and concerned citizens with the information they need to assess their state's commitment to fair school funding and to advocate for improvements in the many states where that is absolutely necessary," said Dr. Bruce Baker of Rutgers University Graduate School of Education, a co-author of the National Report Card.
"The State's continuing failure to fairly fund public education deprives Alabama students of the teachers, support staff and other resources necessary for a high quality education," said David G. Sciarra, Executive Director of the Education Law Center and a co-author of the National Report Card. "We hope the NRC results will serve as a wake-up call for lawmakers to put school funding reform at the top of the education agenda."
First issued in 2010, the National Report Card is built on the principle that predictable, stable and equitable state systems of school funding are the essential precondition for the delivery of a quality educational opportunity. Without this foundation, efforts to improve the nation's schools will be less productive and unsustainable. To improve on the condition and performance of schools, states need to implement systems that provide sufficient funding that is fairly distributed to account for the needs of students, which are higher for low-income students, English language learners, and students with disabilities.
Is School Funding Fair? A National Report Card is coauthored by Dr. Bruce Baker of the Rutgers Graduate School of Education; David Sciarra, Esq., Executive Director of the Education Law Center (ELC); Dr. Danielle Farrie, ELC Research Director; and Theresa Luhm, Esq., ELC Managing Director. Please visit www.schoolfundingfairness.org for the complete report.
Thursday, March 17, 2016
UCLA Civil Rights Project: Charter Schools, Civil Rights and School Discipline: A Comprehensive Review
Amid suspicions that some charter schools' policies serve to cull students for minor discipline problems comes a report this week that charter schools still are suspending black students at significantly higher rates than white students and suspending students with disabilities at two to three times the rate of nondisabled students. The study, Charter Schools, Civil Rights and School Discipline: A Comprehensive Review, was released by UCLA's Civil Rights Project and interprets federal data from 5,250 charter schools on out-of-school suspension rates. Among the findings:
- In the 2011-12 school year, 374 charter schools suspended 25% of their enrolled student body at least once.
- Nearly half of all Black secondary charter school students attended one of the 270 charter schools that was hyper-segregated (80% Black) and where the aggregate Black suspension rate was 25%.
- More than 500 charter schools suspended Black charter students at a rate that was at least 10 percentage points higher than the rate for White charter students.
- 1,093 charter schools suspended students with disabilities at a rate that was 10 or more percentage points higher than for students without disabilities.
- 235 charter schools suspended more than 50% of their enrolled students with disabilities.
The report also notes that "lower-suspending charter schools are more numerous than high-suspending charters," suggesting that those school may be using "effective non-punitive approaches to school discipline [that] could help close the pipeline." Daniel J. Losen, the director of the Center for Civil Rights Remedies, told the New York Times that "the report should not be used to generalize about all charter school discipline, because there were also schools that did not suspend students at high rates." The full report, written by Daniel J. Losen, Michael A. Keith II, Cheri L. Hodson, and Tia E. Martinez, is accessible here.
Yesterday, the Education Law Center released the fifth edition of its national school funding fairness analysis (authored by Bruce Baker, Danielle Farrie, Theresa Luhm and David G. Sciarra). Two states jumped out at me in this report: North Carolina and Nevada. Last year, Nevada's unequal distribution of funding was eye-popping. Districts serving high need student populations were funded at less than half the level of districts serving wealthier students. This year, Nevada is still doing a poor job, ranking last in the nation in funding distribution, but significantly decreased the disparity. It now funds high need districts at 71% of their counterparts. North Carolina, likewise, was atrocious on several measures and still is this year on some, but the funding distribution in the state is looking much better. The state is now funding high need districts at 112% of low-poverty districts--not an excellent number but still a progressive one.
Maybe the most distressing data to me is the continuing low levels of fiscal effort being exerted to fund education. Based on the last year studied, only seven states increased their fiscal effort over the prior year (from 2012 to 2013). Only four state were exerting more effort than they were at the beginning of the recession. In other words, states are still in a hangover from the Recession. Tax revenues rebounded to pre-recession levels about three or four years ago, but states have not replenished education budgets. As I argue in Averting Educational Crises, the length and depth of this continuing hangover threatens the quality of education an entire generation of students will receive. Courts failure to intervene also threatens to undermine the constitutional right to education, which will jeopardize education for future generations as well.
The funding fairness report offers this summary of major findings:
- School funding levels continue to be characterized by wide disparities among states, ranging from a high of $17,331 per pupil in Alaska to a low of $5,746 in Idaho.
- Many of the lowest funded states, such as Arizona, California, Idaho, Nevada, North Carolina and Texas, allocate a very low percentage of their states’ economic capacity to fund public education.
- Fourteen states, including Nevada, North Dakota and Illinois, are regressive, providing less funding to school districts with higher concentrations of low‐income students.
- Only a handful of states ‐ Delaware, Massachusetts, Minnesota, New Jersey and Ohio ‐ have generally high funding levels and also provide significantly more funding to districts where student poverty is highest.
- Low rankings on school funding fairness correlate to poor state performance on key resource indicators, including less access to early childhood education, non‐ competitive wages for teachers, and higher teacher‐to‐pupil ratios.
Get the full report here.
This year the authors also issued a supplementary report that dug beneath the state level figures and identified the nation's most disadvantaged districts. That report includes these major findings:
- Almost 1.5 million children are educated in 47 disadvantaged school districts across 16 states.
- Reading and Allentown, PA face the nation’s most extreme disadvantage, with nearly 2.5 times area poverty rates and less than 80 percent of the average state and local revenue per pupil.
- Chicago and Philadelphia are, year after year, the two most fiscally disadvantaged large urban districts in the nation.
- Many of the most disadvantaged districts are in states with regressive funding systems, such as IL, PA and TX, but they also exist in states with both flat funding systems (CA) and more progressive funding systems, such as CO, MA and NC.
Get that report here.
Wednesday, March 16, 2016
The Right to Counsel in School Discipline Proceedings
Julie K. Waterstone (Southwestern) has published Counsel in School Exclusion Cases: Leveling the Playing Field, 46 Seton Hall L. Rev. 471 (2016), which calls for a right to counsel in school discipline cases, particularly given the poor outcomes that face students who are excluded from school. From the abstract:
Access to education is crucial to a child's future. Although there is no federal constitutional right to an education, it has been deemed a property interest that cannot be taken away without adherence to due process. But over the last twenty years, with the rise of the zero tolerance movement, it has become far easier to exclude children from school. Despite the due process protections available, many children facing school exclusion do not have their rights adequately protected without the presence of counsel in school discipline proceedings. Using actual case studies, this Article seeks to broaden the discussion of the civil right to counsel movement to include a right to counsel in school discipline proceedings where a child's right to education is at stake. This Article will highlight the importance of education and bring to light the ease with which it can be taken away from a young person, particularly a young person of color from a low-income family. States should recognize the importance of education by ensuring that it is a right that cannot easily be taken away -- this can be done through the availability of counsel as well as through legislative reforms to our school discipline laws. This Article will also consider the role that law school legal clinics can play in securing counsel for students facing school exclusion. This discussion will hopefully help guide the development of public policy surrounding school discipline and, at the very least, contribute to a discussion of needed legal reforms and the expansion of the services provided by law school legal clinics.
Access to Campus Recreation Programs under the ADA
Sarah J. Young (Indiana), William D. Ramos (Indiana), Sherril L. York (National Center on Accessibility), Allison L. Fletcher (Indiana), have published On the 25th Anniversary of the ADA: How Inclusive Are Campus Recreation Programs?, 26 J. Legal Aspects Sport 22 (2016). The abstract is below.
The purpose of this article is to present the findings of a pilot study, which critiqued the welcoming environment presented by campus recreation programs in the Big Ten. The year 2015 marked the 25th anniversary of the Americans with Disability Act (ADA). Enacted into law in 1990, the ADA is one of the most comprehensive pieces of civil rights legislation prohibiting discrimination against individuals with disabilities. Postsecondary educational institutions are covered under Titles II and III of the ADA and must insure that the programs offered, including campus recreational sport, are accessible to students with disabilities. This was most recently reinforced by the U.S. Department of Education in its January 2013 Dear Colleague Letter providing guidance on the obligations of public schools to provide an equal opportunity to participate in extracurricular activities. Of note in the guidance is “students at the postsecondary level must also be provided an equal opportunity to participate in athletics, including intercollegiate, club, and intramural athletics.” In a search of case law, no specific cases claiming discrimination under the ADA by campus recreation programs against students with disabilities were found, but the question remained, do students with disabilities feel welcomed and included in the programs provided by this campus service?
Madison County School Board in Alabama has finally brought an end to the six year saga regarding its failure to protect a middle school student from sexual harassment and later its active role in using the student as “bait” to catch the harasser, which led to her being raped. Media outlets report that the board greed to a settlement with the victim this week.
As discussed here in 2014, a teacher's aide at Sparkman Middle School convinced a 14-year-old female special needs student to enter a bathroom with another student with a history of sexual and violent misconduct. The aid told her teachers would be present in the bathroom to catch the male student “in the act” of sexual misconduct before anything happened. This was all purportedly in service of a school official’s policy of needing actual evidence to punish acts of sexual harassment. Tragically, no teachers were present to intervene, and the student was violently sexually assaulted and raped.
For some reason, the district has persisted in arguing that it was not responsible for the assaults, notwithstanding its knowledge of the attacker’s history and allegations that school officials even knew of this plan to catch him in the act. Late last year, the Eleventh Circuit disabused the district of its notions in Hill v. Cundiff, 797 F.3d 948 (11th Cir. 2015), and remanded the case to the trial court. That remand led to this week's settlement.
Applying the Title IX deliberate indifference framework from the Supreme Court’s opinion in Davis v. Monroe County, the Eleventh Circuit had written:
We now ask what the Board knew—vis-à-vis Principal Blair or Assistant Principals Dunaway or Terrell—about CJC's alleged harassment and discrimination. . . . The Board admits it had knowledge of CJC's disciplinary history that was tersely recorded in the iNOW database. The Board does not contest it had actual knowledge of CJC's unrecorded instances of alleged sexual harassment in January 2010. Administrators learned weeks before the rape that CJC had been propositioning girls to have sex in bathrooms. On January 13, 2010, ten days before the rape of Doe, the administrators learned CJC had allegedly inappropriately touched a female student. . . . Construing the facts in favor of Doe for purposes of summary judgment, the Board (through Dunaway) had actual knowledge of the use of Doe as rape bait for CJC in the sting operation and CJC's propositioning of Doe to have sex. . . .
Tuesday, March 15, 2016
Former Principal Calls on Educators to Acknowledge the Role That Their Mindset Plays in Feeding the School-to-Prison-Pipeline
Last month, in a speech at Teach for America's 25th Anniversary event, Nancy Hanks gave a heartfelt speech goes to a central problems with school discipline policy and discretion. Hanks, now a top administrator, in the Madison, Wisconsin, schools recalled her experience as a principal in Chicago schools. She tells the story of recently bumping into a young man on an elevator whom she had expelled a few years earlier and the awakening to the possibility that she had ruined his life:
I remembered the incident quite clearly: He brought a BB gun — a very realistic-looking BB gun — to school and I was livid at the time. I wasn’t angry at him because I thought he wanted to hurt anyone, because I didn’t truly believe that he did.
I was angry because I had busted my behind for almost two years at that point to turn that school around, and establish community, and to repair the climate and to make kids feel safe. His bringing that BB gun wasn’t just a threat to safety but a threat to me and the reputation I was building for myself and for the school. And nobody was going to compromise that.
At the time I couldn’t separate the child from the act. I couldn’t find that powerful and potent “just mercy” that Bryan Stevenson so passionately and poignantly describes in his book. So I went to my code of conduct, which at the time treated toy guns, BB guns and real firearms the same — and I referred him for expulsion.
She used that story to say that the blame for the school-to-prison-pipeline lies with educators as individuals who, innocently or not, contribute to it through a problematic mentality toward school discipline. The fault cannot simply be externalized.
If you’re a dean, principal or assistant principal, it’s in the powerful decision points that you hold as to whether or not you are going to suspend or expel students, sometimes as young as 4 or 5 years, because they’ve somehow “disrupted the learning environment” or “defied school authority” or violated one of many often subjective infractions in our codes of conduct. It’s also in the incidents when you deliberately misuse school resource officers — inappropriately involving them in incidents that don’t need officer involvement and that often escalate in a matter of seconds, blurring the line of what is criminal behavior and simply a matter of school discipline. That’s your contribution.
Her speech also feeds very well into the arguments I make here that many discipline policies cannot withstand the basic test of rationality.
Monday, March 14, 2016
Blog co-editor Derek Black (South Carolina) has posted an article on ssrn, Averting Educational Crisis (Washington Law Review, forthcoming). In the article, Prof. Black argues that judges' reluctance to intervene in education disputes, during and after the recession, has devalued the constitutional right to education around the country. From the abstract:
Two-thirds of states are funding education at a lower level today than they did in 2008. Some states are a full twenty percent or more below levels of just a few years earlier. The effect on schools has been dramatic. States have only exacerbated the problem by reducing teachers’ rights and benefits. These attacks on teachers, combined with funding decreases, have scared many prospective teachers away from the profession all together. The net result has been an extreme shortage of teachers nationwide. This past fall, large numbers of public schools opened without enough certified teachers to fill classrooms, relying instead on substitutes and interns on a full-time basis. In other instances, schools simply stopped offering certain classes. Decades of social science demonstrate these funding and teaching policies will have serious academic impacts on students. They will likely widen achievement gaps and impose learning deficits that some students will never overcome.
In the face of analogous threats, courts in the past have regularly intervened to protect educational quality and funding. Yet this time around, courts have almost uniformly refused to intervene and rarely offered a compelling reasoning for the refusal. This judicial passivism regarding education marks a troubling new trend. It suggests that the constitutional right to education may exist only in theory and that students are losing the constitutional leverage to demand that states repair the damage that they have caused. Likewise, nothing will prevent states from pursuing similar retractions again in the future.
This Article offers a doctrinal approach to reverse both educational retractions and judicial disengagement. Current trends, however, cannot be reversed without acknowledging the potential limits of judicial intervention during crisis. In particular, a serious crisis incites fear and political expediency, which can prompt legislatures to ignore court orders that purport to remedy the crisis. This disregard is inherently problematic for both education rights and the basic legitimacy of judicial authority, regardless of the subject matter. In this respect, the solution to the devaluation of education rights is also a step toward strengthening judicial authority. In education, courts must begin to incorporate prospective doctrines and rules that reduce the likelihood of judicial standoffs with legislatures. Simply put, future court orders should seek to avert crises by addressing them before they occur. This Article proposes three specific steps courts can take to achieve this end.
Washington Hasn't Implemented the Constitutional Mandate for Educational Adequacy, But Has No Problem Finding a Charter School Fix
In 2012, the Washington Supreme Court declared the state's school funding system constitutionally inadequate. Since then, the state has be slow to act--slow enough that the Court imposed heft daily fines this summers until the state implements a plan. A week and a half ago, the state finally passed legislation, although some point out that it is no more than a promise to come up with a solution in the next legislation session. The real irony, however, came late last week when the state passed a new charter school bill.
The past September, the Washington Supreme Court struck down the state charter law, reasoning that the statute violated the constitutional mandate for a “a general and uniform system of public schools” and that it diverted funds that the constitution reserves for common schools to other schools. In other words, the state was directing common school funds to schools that are not common. While the state has drug its feet for four years on a fix for traditional public schools, it only took six months to pass a fix for charter schools--a fix that had already failed once. Daarel Burnette at Edweek reports,
A bill championed by advocates to revive the [charter school] law was passed by the Republican-controlled Senate in January, but had stalled in the House education committee before Rep. Larry Springer, a Democrat, used a procedural maneuver to resuscitate the bill and bring it to the House floor for a vote on Wednesday.
Democrats control the House, but barely. And the effort to restore the law has met resistance from several groups, including the state's teachers' unions.
On Tuesday, April 5, 2016, New York University School of Law is hosting the conference "Can Markets Save Public Education?"
The organizers offer this description and schedule.
Join us for a conversation on charter schools, vouchers, tax credits, and other proposed market based reforms for public education. Experts in education policy, educational leadership, law, and economics will discuss potential impacts of charter schools on the community and area public schools, debate the merits of school choice programs, and explore the political and financial obstacles to implementing such reforms.
The keynote address will be delivered by Ms. Emily Kim of Success Academy, New York City’s largest network of charter schools. Ms. Kim is the Executive Vice President of Legal Affairs and Policy.
This event is free to attend, and lunch will be provided.
To RSVP, click here or copy and paste the link below into your browser:
We have applied for CLE for this event. If approved, CLE credits will be awarded per panel.
Friday, March 11, 2016
We have been following the litigation challenging Nevada's school voucher law as violating provisions of the Nevada Constitution (Lopez v. Schwartz), here, here, and here. The litigation challenges Nevada's Senate Bill 302 which permitted parents to apply for educational grants for private schools, financed by deductions from local school districts' budgets. Yesterday, the Nevada Supreme Court denied a mandamus petition in the case, holding that the district court correctly denied the request of a group of parents to intervene in the case as defendants. A Nevada district court ruled in January that S.B. 302 violated state constitutional provisions requiring support for public education and is holding a trial on the merits. The parents sought permissive intervention as defendants, arguing that the January ruling prevented them from applying for vouchers for their children and that their perspective would assist the trial court "in focusing on the effect of the challenged law on its real beneficiaries, parents and children." The Nevada Supreme Court rejected the parents' arguments, finding that the parents shared the same interests and defenses as the main defendant, the Nevada state treasurer, in having S.B. 302 declared constitutional. The Nevada Supreme Court decision denying mandamus in Hairr v. First Jud. Dis. Ct., No. 69580 (Nev. Mar. 10, 2016), can be found here.
Louisiana to Take a Step in the Right Direction by Limiting Charter Schools in Districts Where They Are Not Needed?
The chair of Louisiana's Senate Education Committee has introduced a pretty common sense bill to limit the creation of new charters in the state. Existing law in Louisiana provides that charter school applications shall be made to the local school district, but if the district denies the application or places conditions on the charter school that the applicant does not like, the applicant can appeal to the state board of education. The state board can then freely grant the charter, notwithstanding the concerns of the local district. The new proposed legislation would significantly limit that appeal process. It indicates that in school districts that receive an "A" or "B" rating on their most recent state report card, there would be no right of appeal for charter applicants. Thus, those districts would be the final decision maker on charter school applications.
Because charters are most likely to pop up in struggling districts and inner cities, one might assume this bill would have little practical impact. But given the nature of southern school districts, this law covers a broad spectrum of school. First, the state has less than 80 districts and over half of them received an A or B last year, so its general application is broad. Second, districts receiving an A or B are not a monolithic or demographic homogeneous group. Many of these districts include schools that are seriously struggling, such as Jefferson Parish. Jefferson Parish District is rated as a B, but includes 22 schools that received individual ratings of D or F. Those schools are in communities where charters might otherwise believe they can find a market. Third, given the foregoing and what I know of a few Louisiana districts, some of these districts likely have some level of integration in their schools. This bill can help protect that integration. As a study of North Carolina schools revealed last year, charters in that state where becoming "whiter" while the traditional public schools were becoming "browner." As I argued here, charters schools can be dangerous in integrated school districts because they offer dissenters from integration an easy exit option. In North Carolina--traditionally the most integrated school system in the country--new charter schools appear to have created a hot-bed for those looking to exercise this exit option on the public dime. This Louisiana bill would limit that option there.
Peter Cook's summary of the bill follows the jump:
Thursday, March 10, 2016
Disdainful of Its Constitutional Duty to Deliver Equal and Adequate Education, Kansas Lawmakers Flirt with Autocratic Rule
Yesterday, LaJuana Davis posted on proposed legislation in Kansas that would expand the grounds for impeaching justices of the Kansas Supreme Court. The new ground for impeachment would be usurping the power of the legislature or executive. Such a threat to the Kansas Supreme Court is not new and comes in response to the court's firm stance on the state's obligations under the education clause of the Kansas constitution. Last year, the legislature threatened to change the judicial appointment process and shrink the judiciary's budget, which got national attention as a threat to separation of powers.
Last year's legislative efforts were arguably within the bounds of acceptable policy, as the judiciary's budget does fall within the legislature's jurisdiction, as do some procedures for appointment. It is legislative intent, more than anything, that raises the biggest separation of powers concern. To add this new ground for impeachment, however, is both a practical and ideological subversion of the rule of law and an independent judiciary.
Wednesday, March 9, 2016
Frustrated With The Kansas Supreme Court That Struck Down The State Education Budget, Legislators Try To Expand The Grounds For Impeachment
We have been following the Kansas Supreme Court's repeated rejections of the state's education funding scheme here, here, and here over the last year. This week, a committee in the Kansas Senate is considering a bill that would make "attempting to usurp the power of the legislative or executive branch of government" grounds for impeachment. The bill was prompted by the court's rulings declaring that the state education budget an unconstitutional denial of the right to an education and other rulings that have antagonized the Republican-led legislature (four of the current justices were appointed by Democrat governors). The legislature has been looking for ways to limit the court's power but has found getting rid of the justices difficult. Kansas' supreme court judges only face retention elections every six years and can be voted out only if more than fifty percent of the electorate vote against them. Currently, justices can only be impeached for treason or serious misbehavior. Read more on this story at SFGate here.
According to local news report, the Franklin County School Board in Tennessee is considering taking a radical step simply to prevent a Gay-Straight Alliance from forming in the district: eliminate extracurricular activities altogether. A federal statute mandates that once schools open their doors to student groups (and outside groups) that they open their doors equally to everyone. The initial intent behind the statute was to ensure equal access to religious groups. The statute specifically paved the way for church's to begin holding services in some schools. Gay-Straight Alliances have used this legislation to their benefit in numerous communities that would have otherwise excluded them. Apparently, Franklin County would rather keep everyone out than let the Gay-Straight Alliance in.
The New Civil Rights Movement reports:
The GSA at Franklin County High School in Winchester has been under attack since it first met in January, with parents comparing it to ISIS, and students vandalizing the club's posters andwearing "Straight Pride" signs in protest.
Last month, anti-LGBT residents who spoke at a school board meeting warned that the GSA is part of a "radical gay political agenda" that seeks to recruit children:
In response to the controversy over the GSA, the Franklin County School Board has decided to draft new guidelines for student organizations. Under the federal Equal Access Act, officials must allow the GSA unless they eliminate all extracurricular clubs, from the Fellowship of Christian Athletes to the Student Council.
Tuesday, March 8, 2016
Parents of three female students are suing North Carolina's Charter Day School, alleging that its dress code prohibits girls from wearing pants or shorts even though boys are required to wear pants or shorts to school. Female students must wear skirts, skorts, or jumpers to school or face disciplinary action. To avoid overexposure in jumpers and skirts, female kindergartners have been instructed on how to "sit like a princess" during reading time when students sit on the floor. The plaintiffs allege that the dress code at the K-8 school is enforced daily except the one day a week that students wear their gym uniforms to school and during school "spirit days," when students must pay $2 to be allowed to wear jeans. According to the suit, school officials told parents that skirts presented a more “professional image” and that the policy was based on “chivalry,” “traditional values,” and “mutual respect.” The founder of Charter Day School elaborated in an email that the number of female students injured during the Columbine shootings showed a need for students to feel respect for their peers. The ACLU represents the plaintiffs in the § 1983 suit filed in the U.S. District Court for the Eastern District of North Carolina, posted here.
Last week, a federal district court approved of a plan to consolidate a Mississippi school district that was under a 1970 desegregation order. In 1970, the Starkville Municipal Separate School and the Oktibbeha County School Districts were ordered to end their dual school system and to create a unitary school systems under Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969). In 2014, the Mississippi legislature voted to consolidate the two districts, but the Department of Justice objected to the consolidation plan, citing the 1970 desegregation order. In the recent case, Montgomery v. Starkville School District, the Northern District of Mississippi ordered Mississippi and DOJ to fashion a new desegregation order that would govern the consolidated district from the 2016-17 school year until it is declared unitary by the court. In approving the consent order, the court is requiring the district to set attendance zones, adhere to a majority-to-minority transfer policy, and submit various types of proof of the racial and ethnic composition of the schools in the consolidated district. The court also required the state to assign employees in such a way that "thatno school in the district could be considered a “white school” or “black school” by virtue of its administrator, faculty, or staff assignments." The court's opinion in Montgomery v. Starkville School District, No. 1:83-CV-00293-MPM (N.D. Miss. Mar. 3, 2016) can be found here.
Erika Wilson's forthcoming article, The New School Segregation, has been accepted for publication in the Cornell Law Review. I was lucky enough to get an advance look at it. It warns that that the recent school district secessions in places like Memphis, Baton Rouge, and Jefferson County, Alabama, are not aberrational at all, but rather the current evolution of a long and sordid history of resistance to integration. It is a must read for those concerned with the future of school integration, not just the past. The current draft is here on ssrn. She offers this abstract:
The South has a long and sordid history of resisting school desegregation. Yet after a long and vigorous legal fight, by the mid-1980’s, schools in the South eventually became among the most desegregated in the country. An important but often under appreciated tool that aided in the fight to desegregate schools in the South was the strategic use of school district boundary lines. Many school systems in the South deliberately eschewed drawing school district boundary lines around municipalities, and instead drew them around counties. The resulting county-based system of school districts allowed for the introduction of school assignment plans that crossed racially- and economically-segregated municipal boundary lines.
New Article Places Rachel Dolezal's Reverse Passing in the Context of Higher Education Diversity Debates
Khaled A. Beydoun and Erika K. Wilson's new article, Reverse Passing, has been accepted for publication in the UCLA Law Review. The current draft is here on ssrn. Based on downloads, it already seems to be generating significant attention. They offer this abstract:
Throughout American history untold numbers of people have concealed their true racial identities and assumed a white racial identity in order to reap the economic, political and social benefits associated with whiteness. This phenomenon is known as passing. While legal scholars have thoroughly investigated passing in its conventional form; the corollary process of reverse passing – the process in which whites conceal their true racial identity and present themselves as non-white – has not been closely investigated within legal scholarship.
Rachel Dolezal provides a timely study of the process of reverse passing. Dolezal – an Africana Studies Instructor and head of the Spokane, Washington NAACP – was outed as being white after years of phenotypically and culturally presenting herself as a Black woman. Dolezal’s “outing” generated much popular debate and scholarly discourse, most of which tended to frame her actions as a one-off occurrence by a deviant actor. This Article takes a contrary position.