Wednesday, March 22, 2017
Harvard Law School’s readiness to accept the GRE in place of the LSAT raises a host of important questions – most importantly, what will the effect be?
In explaining the move, Jessica Soban, assistant dean and chief admissions officer, told The New York Times that it would “encourage more students in the United States and internationally from a greater degree of disciplines to apply,” and the law school’s dean, Martha Minow, suggested that the law school would be able to admit a more diverse class as a result.
Whether such goals are realized will depend on numbers other than GRE scores. The results matter, because other law schools likely will follow the lead of Harvard and the University of Arizona, which announced the same move last year.
Many more students take the GRE each year than take the LSAT: 584,677 worldwide, including 326,957 United States citizens, in the 2015-2016 cycle, according to Educational Testing Service (ETS), which administers the GRE. In contrast, 84,771 people took the LSAT (and 56,500 applied to law school) in roughly the same period, according to the Law School Admission Council (“LSAC”), which administers the LSAT.
The larger pool of potential applicants could indeed produce greater racial and ethnic diversity at law schools. According to ETS, 55 percent of the U.S. citizens taking the GRE were white, 6 percent were Asian American, 7 percent were African American, 3 percent were Mexican American, and 4 percent were classified as “other Hispanic,” a category excluding Puerto Rican citizens, who accounted for 1 percent.
In contrast, about 61 percent of law school applicants were white, 15 percent were Asian American, 15 percent were African American, and 13 percent were Latino. (I did not find precisely analogous data, so please note that these percentages reflect two different sets of numbers: GRE test takers who are U.S. citizens, on the one hand, and law school applicants, on the other.)
Average GRE scores of different racial and ethnic groups vary across the population of U.S. citizens who took the test, according to ETS. White and Asian American test takers earned higher average scores than black, Mexican American or “other Hispanic” test takers. White test takers tended to score higher on the verbal reasoning component of the exam and Asian American test takers tended to score higher on quantitative reasoning.
As with the LSAT, on which LSAC reports similar patterns, if admissions processes at relatively more selective institutions continue to weigh test scores heavily, the greater size of the pool may have less of an effect on student diversity at law schools. The selection process, committed to a particular definition of merit, may get in the way.
Just how important is the LSAT, or GRE, for that matter, in predicting who will do well in law school? To ask that question is to raise another, which is, how good should it be in order to play the powerful role in admissions decisions that it does. According to an ETS report for the University of Arizona last year, “scores for all GRE subtests, individually or composited, are both highly reliable and valid for use in law school admissions.”
The study was based on a sample of 78 people, and took into account GRE, LSAT, undergraduate GPA and first term law school GPA. The study did not capture how students did in the second and third years of law school.
The ETS study presented the data in different ways but the most intuitive may be this: 54 percent of students in the top third of GRE composite scores had a first semester law school GPA in the top third of their class, while 23 percent were in the bottom third. Of students in the bottom third of GRE scores, 48 percent were in the bottom third of their law school class and 16 percent were in the top third. That means that 52 percent – more than half – of the students in the bottom one-third on the GRE did not land in the bottom one-third of their law school class.
To put that finding in context, the studies mentioned in the report for the University of Arizona found that the GRE verbal and quantitative sections “almost always predicted graduate [school] grade point average (GGPA) in general and first year GGPA at least as strongly as [undergraduate] GPA.”
A recent study, available here, suggests that the LSAT itself is not a great predictor of law school performance. While an LSAT score is a statistically significant predictor of law school GPA (twice as accurate in the first year than overall), the effect is not overwhelming. Each additional LSAT point predicts an increase in law school GPA of 0.016 – a bigger deal, the bigger the LSAT score difference between two applicants, but nonetheless a “modest” effect “compared to how heavily schools weight LSAT scores.”
So both tests predict law school performance, but to a limited degree.
Where should this leave us? Frankly, uncertain. The tests do not predict a lot. The ETS report for the University of Arizona does not look beyond the first semester of law school. Average performance on both LSAT and GRE appears to vary with the race of the test-taker.
Law schools have been using an imperfect tool and two are now moving toward incorporation of a complementary but also imperfect tool. While predictions are always risky, especially about the future, it seems highly likely that results of adoption of the GRE will be imperfect, too.
Tuesday, March 21, 2017
Court Upholds Prayer at School Board Meetings, Overlooking Their Judicial and Executive Functions That Suggest a Different Result
The Fifth Circuit Court of Appeals in American Humanist Association v. Birdville Independent School District has upheld a First Amendment challenge to student prayer at school board meetings. The court offered this summary of the facts:
BISD’s board holds monthly meetings in the District Administration Building, which is not located within a school. The meetings include sessions open to the public. Attendees are free to enter and leave at any time. Most attendees are adults, though students frequently attend school-board meetings to receive awards or for other reasons, such as brief performances by school bands and choirs. Since 1997, two students have opened each session—with one leading the Pledge of Allegiance and the Texas pledge and the other delivering some sort of statement, which can include an invocation. Those student presenters, typically either elementary- or middle-school students,2 are given one minute. BISD officials do not direct them on what to say but tell them to make sure their statements are relevant to school-board meetings and not obscene or otherwise inappropriate. At a number of meetings, the student speakers have presented poems or read secular statements. But according to AHA and Smith, they are usually an invocation in the form of a prayer, with speakers frequently referencing “Jesus” or “Christ.” AHA and Smith claim that sometimes the prayers are directed at the audience through the use of phrases such as “let us pray,” “stand for the prayer,” or “bow your heads.”
From 1997 through February 2015, the student-led presentations were called “invocations” and were delivered by students selected on merit. In March 2015, in an apparent response to AHA’s concerns about the invocations, BISD began referring to them as “student expressions” and providing disclaimers that the students’ statements do not reflect BISD’s views. BISD began randomly selecting, from a list of volunteers, the students who would deliver the expressions.
The court recognized that two different lines of precedent potentially controlled the case--one dealing with legislative prayer and the other with school prayer.
Like [the legislative precedent], this dispute is about the constitutionality of permitting religious invocations at the opening, ceremonial phase of a local deliberative body’s public meetings. But like [the school prayer cases], this case is about school-district-sanctioned invocations delivered by students on district property. We agree with the district court that “a school board is more like a legislature than a school classroom or event.”
The court also cited to other courts that had reached a similar conclusion in the past--Coles ex rel. Coles v. Cleveland Board of Education, 171 F.3d 369, 383 (6th Cir. 1999), and Doe v. Indian River School District, 653 F.3d 256 (3d Cir. 2011).
The court's mechanical analogies to legislative versus school prayer cases, however, overlooks the fact that school board meetings do not really fit into either category. The problem with pigeonholing school board meetings is that school board perform all three functions of government. When they debate and vote on school board policies, they operate as legislative bodies, just like a city council. In this context, Town of Greece v. Holloway held that can be permissible prayer.
In contrast, when a student appeals an expulsion to the school board, the board functions as an adjudicative body, much like a court (albeit under different rules). In a court setting, the mere posting of the Ten Commandments is unconstitutional, to say nothing of prayer. See McCreary County v. American Civil Liberties Union of Ky.
When school boards deal with business issues, such as hiring a superintendent, dealing with teacher issues, entering into contracts for services, they perform an executive function. Moreover, the school board is the employer of countless citizens who may feel that their positions would in some way be compromised depending on whether they participate in the religious ceremonies that precede school board meetings. In the carrying out executive functions, Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), indicates that even clever processes that allow students to make the decision regarding whether to lead prayer does not insulate a district from the limits of the First Amendment. In short, if the school sets up a process that leads to school sponsored prayer, it is unconstitutional.
This differing contexts suggest the question could be whether a different rule applies depending on what the business of the day is for the school board. Yet, this level of nuance is problematic because it would mean sometimes school boards can have prayer and sometimes they cannot. Clarity likely outweighs nuance here. The more sensible approach would be to ask whether the executive and adjudicative functions of school boards are substantial enough overall to subject school boards to the constitutional limits that apply to those functions.
Monday, March 20, 2017
A new four-part series in the Baltimore Sun offers a sobering look at the politics of school integration. Nikole Hannah-Jones' work over the last couple of years has helped make school integration a topic of public conversation. This new work by Liz Bowie and Erica Green show how integration actually does or does not come about. It explores Baltimore County's recent efforts to redraw school attendance lines. The opening lines begin with Jeff Sanford, a father of two African-American boys in the schools who had volunteered to represent his local community in the process. He "went to the debate at the high school cafeteria with an open mind. The boundary lines for 11 schools in the Catonsville area had to be redrawn to relieve overcrowding. But there was a chance to achieve something more, something that could help improve the lives of all children: integration."
What he and the school district found was that although demographic maps showed a perfect opportunity to diversify some schools, old boundaries and biases were as deep as ever. Many saw integration as a zero sum game where some would win at others expense. This fear opened new wounds that made integration as tough as it was decades ago. An integration plan that would have reassigned 2100 students was voted down and eventually whittled down to one that would only reassign a couple hundred. Read the full story here.
As a follow-up to the debate, The Sun, Maryland Humanities Council and Loyola University of Maryland's Center for Innovation in Urban Education will be hosting a community dialogue about the path forward for school integration.
The forum will be held Wednesday, March 29 from 6:30 - 8 p.m. at Loyola University. For more information and to RSVP go to www.loyola.edu/join-us/bridging-divide.
Friday, March 17, 2017
Members of the Kentucky legislature are taking aim at school integration. If its new legislation succeeds, it will degrade the educational opportunities available to thousands of kids and, ironically, move in the opposite direction of the stated positions of the new Secretary of Education.
After the Supreme Court held in Parents Involved in Community Schools v. Seattle that Jefferson County's voluntary integration plan was unconstitutional, the school board reworked its student assignment plan. The problem with the old plan, according to the Court, was that the district had not shown that the consideration of race was necessary to achieve integration. At least in Jefferson County, maybe the Court was right. The district came up with a new plan that relies on race-nuetral factors and appears to work relatively well. And like the old plan, it remains popular among families there. As Barrett Holmes Pitner reports, "[a]s of 2011, 89 percent of Jefferson County residents supported the school system’s desegregation policies (PDF)."
A constitutional plan, a popular plan, local prerogative, and the benefits of integration apparently are not enough to dissuade those in the state legislature from monkeying with education policy. Kentucky House Bill 151 would "provide that those residing within the shortest travel distance to a school be given first priority in cases where the capacity of the school may be exceeded; permit a child to attend a school other than the one closest with permission of the district." The logical inconsistency of this legislation with other education policies and research findings is astounding.
Both of Kentucky's U.S. Senators just voted in favor of Betsy DeVos as Secretary of Education. DeVos stands on two major policy positions: more local control and more student choice. Just this week, DeVos told the Council of the Great City Schools, a coalition of 68 big-city school districts, of which Jefferson County is a member, that “When Washington gets out of your way, you should be able to unleash new and creative thinking to set children up for success.” Although this statement does not reference state government, it is implied. After all, she was talking to districts, not states. In other words, let local districts unleash their creative thinking.
As far as creativity goes, Jefferson County is in the top one percent. It found a way to make integration work, make it popular, and make it voluntary in a place that was once mandated to desegregation under force of court order because those in power staunchly opposed it. This new bill would crush this creativity and allow the resegregation of schools, even though that result is not what most families there want. So much for respecting parents and local control.
The bill is equally problematic in terms of choice. Jefferson County's current plan does not involve compulsory integration. It works because it allows parents choice of where they will go to school, imposing only a few constraints around the edges when those choices threaten to tip a school toward resegregating. But by giving parents an absolute veto and priority for local neighborhood schools, this new bill would strip many families of the right to choose an integrated school.
This bill does not line up with voucher ideology either. The bill would, in effect, tell families that if you want to exercise school choice outside of your neighborhood, you need to look for a voucher. In your traditional public schools, we will preference neighborhoods. How can choice be a generally desirably things, but bad when it produces integration.
I, however, would rather just put politics aside and have us think about what works to improve educational opportunity. Half a century of research shows that integration is incredibly effective in closing achievement gaps. The reason largely lies in the harms that students suffer in predominantly low-income schools. As I detail here, "It is not just that a student’s individual demographic characteristics make him or her less likely to succeed; rather, high-poverty schools have a negative impact on a student’s educational outcomes regardless of the student’s individual socioeconomic status. In at least six major academic categories, predominantly poor and minority schools cause harm or deliver inferior educational opportunities to students." Access to integrated middle-income schools does the opposite. And to be clear, middle-income and white students receive significant educational benefits from attending integrated schools as well. Contrary to popular belief, the benefits of integration are not a one-way street.
Fortunately, the bill currently appears to have stalled, in part, because of the effect it might have on charter schools, not due to any of the other above concerns.
Thursday, March 16, 2017
President Trump has released his blueprint for the budget. It includes a number of cuts and program eliminations across various sectors. He would not spare the Department of Education. Here is the USA Today's summary of the cuts:
Supporting Effective Instruction State Grants program ($2.4 billion): The White House says the program is "poorly targeted and spread thinly across thousands of districts with scant evidence of impact."
21st Century Community Learning Centers program ($1.2 billion): The formula grants to states support before- and after-school and summer programs. "The programs lacks strong evidence of meeting its objectives, such as improving student achievement," the budget says.
Federal Supplemental Educational Opportunity Grant program ($732 million): This financial aid program, known as SEOG, help give up to $4,000 a year to college students based on financial need. The Trump administration says it's a "less well-targeted" program than Pell Grants.
Striving Readers Comprehensive Literacy Program ($190 million): The grants are targeted toward students with disabilities or limited English proficiency.
Teacher Quality Partnership ($43 million): A teacher training and recruitment grant program.
Impact Aid Support Payments for Federal Property ($67 million): Obama also proposed the elimination of this program, which reimburses schools for lost tax revenue from tax-exempt federal properties in their districts.
International Education programs ($7 million): This line item funds a variety of exchange programs, migrant schools and special education services abroad.
My knowledge is thin on most of these programs, but the biggest cuts strike me as the most curious. Funding for before and after school programs may or may not be improving student achievement. That, however, should be beside the point if those programs provide a safe place and child care for needy students. Cutting this out only places more pressure on the child care issues that Ivanka Trump has been raising. Likewise, the Federal Supplemental Educational Opportunity Grant helps needy students pay for college. Trump may be correct that it is not as targeted as it could be, but this begs the question of how it might be better targeted, not whether the funding should be cut.
Finally, the Impact Aid Support seems like a particularly odd target. Those funds have a significant impact in communities that serve our military families. Those families, for a variety of reasons, do not pay the same taxes as others in those communities. No one has any qualms with giving our service members those benefits. The downside, however, is that the schools their children attend do not have the same tax base as other schools with fewer military members. To offset this oddity, the federal government makes a direct payment bumps to those schools. This cut is a hard one to figure out.
Case Challenging Segregation As a Violation of State Right to Education Heading to Minnesota Supreme Court
On Monday, the Minnesota Court of Appeals in Cruz-Guzman v. Minnesota ruled that plaintiffs' challenge to segregation in public schools was non-justiciable under the state constitution. Plaintiffs, among other claims, argued that segregated schools deprive students of an adequate education. While the court recognized that the state has a duty to provide a uniform, thorough, and efficient education under the state constitution, the court reasoned that the constitution does not include any qualitative standards or judicially manageable standards. Thus, it lacked a basis upon which to find that segregation did not or did not deprive students of the requisite level of education. The court wrote:
Appellants argue that the Minnesota Constitution does not provide textual support for respondents’ assertion of a constitutional right to an “adequate” education. As appellants note, “[T]he word ‘adequate’ does not appear in Minnesota’s Education Clause.” Instead, the Education Clause sets forth the legislature’s duty to establish a “general and uniform system of public schools” and to secure, “by taxation or otherwise,” a “thorough and efficient system of public schools.” Minn. Const. art. XIII, § 1. The clause does not state that the legislature must provide an education that meets a certain qualitative standard. Moreover, assuming without deciding that the Education Clause requires the provision of
an education of a certain quality, the clause does not set forth the relevant qualitative standard.
Respondents’ request for relief therefore requires the judiciary to both read an adequacy requirement based on a qualitative standard into the language of the Education Clause and to define the qualitative standard. Respondents have a different view, arguing 9 that the judiciary merely needs to determine whether appellants have violated the purported constitutional duty to provide an adequate education. We disagree: to determine whether appellants have violated the purported obligation to provide an adequate education, we must also define “adequate” and the attendant qualitative standard.
The problem of justiciability is not new to adequacy claims. Nearly ever court in a school funding and quality cases has had to confront the problem. A majority of courts, when entertaining similar claims, have held that their constitution includes a quality or adequacy competent and that courts could define its rough outlines.
The plaintiffs' lead attorney, Dan Shulman, has already said they will appeal to the state Supreme Court. Dan Shulman, an attorney for the plaintiffs, said he will appeal the decision to the Supreme Court. As Twin Cities Pioneer Press reports,
“Courts all over the country have said that an adequate education is something that courts can determine, and in our view that includes the Minnesota Supreme Court,” he said in an interview Monday. Shulman noted that in a 1993 ruling on a school-funding lawsuit, the Supreme Court established that Minnesota children have a fundamental right to an adequate education.
This case is definitely worth watching. As some may recall, Shulman represented plaintiffs in a segregation case two decades ago that alleged segregation violated the state education clause. The case was successful on multiple counts, so much so that the state settled the case before the state supreme court could rule on it. That settlement handed plaintiffs a desegregation remedy, but failed to establish precedent on which later plaintiffs could rely. Thus, the issue still remains one of first impression in Minnesota.
Wednesday, March 15, 2017
While Betsy DeVos has almost no current power as Secretary of Education to push vouchers, her public stance in favor of them may be emboldening state legislatures to take action on their own. Texas has moved quickly and the battle lines are being drawn. Even Senator Cruz is getting involved.
"I usually stay out of fights in Austin. We've got plenty of fights in Washington," Cruz said Saturday night at the Dallas County Republican Party Reagan Day Dinner. "This is the best opportunity we've had in the history of the state of Texas to pass meaningful school choice legislation in the Texas Legislature."
As Lt. Gov. Dan Patrick listened, Cruz told Texas legislators in the room to take a "bold and courageous stand."
"School choice is the civil rights issue of the 21st century," Cruz said. "Do the right thing for the kids, and the history of Texas will vindicate your courage and principles."
Teachers and religious leaders are coming out just as strong in opposition. The Dallas Morning News reports:
Teachers and pastors on Monday rallied against the Senate's school vouchers proposal, even as its author announced the bill will be heard Thursday.
"It is a sin before God," Charles Foster Johnson led hundreds in chanting, "to make commodities out of our children and to make markets out of our classrooms."
Lt. Gov. Dan Patrick and GOP Senate leaders would harm public schools and impermissibly lend government support to religion if their self-styled "school choice" bill becomes law, Johnson warned at a Capitol rally organized by the state affiliate of the American Federal of Teachers union.
"Generally, the House of Representatives is holding firm," he said to teachers and school district employees who used the first day of spring break to travel to Austin for a lobby day. In the House, Democrats and rural Republicans traditionally have blocked voucher-like proposals.
"But brothers and sisters, our Senate members need a lot of help from you," said Johnson, a Fort Worth-based Baptist pastor who heads Pastors for Texas Children. It is a group of about 1,000 pastors, rabbis and imams who work to support public schools.
The polemics of this debate are troubling. As a historical matter, major education policy tends to garner bipartisan support. That was true of the Improving America's Schools Act, the No Child Left Behind Act, and the Every Student Succeeds Act. Bipartisanship, of course, does not guarantee wise legislation, but it does promote earnest discussion and compromise. Betsy DeVos's polemic positions, lack of knowledge with which to have an earnest debate, and embittered nomination may have shifted the landscape, at least in the short term. She survived by the narrowest margins and those who side with her may see this is an opportunity to pursue an agenda consistent with her while they can. Of course, that provokes a similarly aggressive response. It is probably wishful thinking that the battle will be limited to Texas.
Tuesday, March 14, 2017
The structure the Every Student Succeeds Act creates for supporting, monitoring, and improving public schools is, in the collective, incoherent. The Every Student Succeeds Act is the popular title of the most recent reauthorization of the Elementary and Secondary Education Act. The Every Student Succeeds Act, however, stands apart from its predecessors. All prior versions have been premised on improving educational opportunities for disadvantaged students by promoting equality in inputs, equality in outputs, or both. The Every Student Succeeds Act proceeds as though we can improve educational opportunities for disadvantaged students without equality in inputs or outputs. This would be quite a novel, if not incoherent, thesis.
In a lecture last week, I remarked that the more forgiving thesis I might ascribe to the Act is that if the federal government would get out of the way of states states would devise their own new theories by which to achieve equality or would simply achieve input and/or output equality of their own volition. Yesterday, Betsy DeVos confirmed my speculation was correct. At the annual legislative conference of the Council of the Great City Schools, a coalition of 68 big-city school system, DeVos remarked “When Washington gets out of your way, you should be able to unleash new and creative thinking to set children up for success.”
I knew it. Washington is the problem and the Every Student Succeeds Act has cured it. States did not really need the couple hundred billion dollars that the federal government gave to states during the recession to keep their education budgets from falling off a cliff and teachers being wholesale dismissed. It was really the federal government that made states cut education by 20 or so percent once they exhausted federal stimulus funds. It was really the federal government that forced some states to slash taxes rather than fund education. It was really the federal government that has insisted that over half of the states continue to fund education at levels below the pre-recession years, even though their tax revenues exceed pre-recession levels. It was really the federal government that insisted that states spend more money in schools that do not serve low-income students than in those that do.
If only President Obama had appointed Betsy Devos eight years ago, we could have avoided this mess.
Or maybe the flawed logic of the Every Student Succeeds Act and Betsy DeVos are just window dressing for the fact that many no longer believe equality is possible or a virtue worth pursuing. This is an idea that would likely cause many educators and families to revolt, just as they did in opposition to DeVos, which is why the window dressing is necessary.
For more on the federal role in education and the Every Student Succeeds Act, see here.
The University of South Carolina School of Law is hosting a lecture by Robert Post, dean of Yale Law School, titled “Freedom of Speech and the Modern University. The lecture is March 23 at 5 p.m. Of course, South Carolina has faced its own challenges on the subject in recent years. Here is the announcement:
In February 2014, the University of South Carolina, USC Upstate, and the College of Charleston were at risk of losing state funding because of certain textbooks and courses. In 2016, two professors at Clemson University were among more than 200 across the nation who were put on the “Professor Watchlist,” which says it names instructors who “advance a radical agenda in lecture halls.” And more recently, faculty and staff at the College of Charleston have grappled with where the line between freedom of speech and being a respectful instructor blur.
After the 2016 election, the school’s provost and vice president of academic affairs, Brian McGee, reported several complaints from students who had “perceived that election discussions in a class meeting were not relevant to course content, were inappropriately one-sided, or were crudely partisan.” Following those reports, the school’s president, Glenn McConnell, enacted a new online presence that would “offer students a way to express their concerns, as well as provide faculty, staff, and administrators an excellent tool for improvement.”
But what startled faculty was the quickness at which the school had reacted to student’s complaints without stopping to check their validity. Professors wondered what role the complaints would play in the promotion and tenure of faculty. It also sparked a discussion state-wide about when and how to teach subjects that are innately political.
In a January article in the Charleston City Paper, Professor W. Scott Poole said, “In my class today, we are reading a section of a book that talks about the pro-Nazi ‘American First’ movement in the 1930s represented by Charles Lindbergh. I would be remiss as a teacher if I did not point out that this phrase was used in [President Trump’s Inaugural Address] as a kind of mantra. Is this crudely partisan or am I simply stating a historical fact for my students to then discuss and analyze?”
Put another way, if fact is couched as opinion, how does one teach without bias, and how does one learn without discrimination? In a deeply divided nation and an era of “alternative facts,” those types of questions are being asked even more frequently by students and professors alike.
For Post, the answers go all the way back to 1791, when the First Amendment was ratified. It created a culture that enjoyed and encouraged freedom of speech, and until the 1930s, courts had little to no role in protecting those rights. But as World War I began, judges had to rethink their role as freedom of speech transitioned into an “organized sway of public opinion.”
Post is an expert of constitutional law, First Amendment rights, legal history, and equal protection. Before his time as dean and professor at Yale Law, he taught at the University of California, Berkley School of Law. He has written and edited numerous books, including Citizens Divided: A Constitutional Theory of Campaign Finance Reform. Much of his knowledge has been learned over a career spent on college campuses, where discussions about freedom of speech frequently arise.
In his lecture, Post will explore the growth of the First Amendment from the perspective of the law, as well as practical application as an educator, and a student. He looks to examine the challenge between freedom of speech and freedom of expression, and why more than ever, free speech on college campuses should be preserved, allowing schools to exist as the “marketplace of ideas.”
The lecture is free and open to the public.
Monday, March 13, 2017
Is the Historic Role of the Department of Education's Office for Civil Rights in Jeopardy or Simply Undergoing an Expected Shift?
James Murphy's new article in the Atlantic offers a excellent and compelling overview of the Office for Civil Rights. He details the various people who have headed the Office over the last fifty years and the major policies they have pursued. He also contrasts the policies of the administrations that have transitioned into and out of the office. With this backdrop, he suggests that major changes from the new administration are the norm for this Office. How far those changes will or will not go, however, is not yet clear.
Under DeVos, the guidance on sexual violence will almost certainly be modified, if not withdrawn, as will the transgender guidance law. So, too, might the guidance on discipline, seclusion, and restraint, in particular. Seclusion (removing a student from a classroom and putting her in isolation) and restraint (restricting a student’s movement, often by pinning him to the floor) have been used disproportionately against students with disabilities and African American students. President Trump’s rhetoric about “American carnage” and “bad dudes” suggests he is more likely to embrace the “zero-tolerance” policies.
Justice is slow, childhood is fleeting, and the task of the Department of Education’s Office for Civil Rights is to make those schedules match. Information and transparency are key to attaining that goal. In addition to making its resolutions part of the public record so other school leaders could learn from them and increasing its outreach to schools through technical assistance (through, for example, workshops, flyers, and community meetings), the OCR under Obama made the data it is required to collect about civil rights in primary and secondary schools more easily accessible, comprehensive, and public-facing. Now, state and local governments, schools, community organizations, journalists, and citizens could use them. The OCR has used it biennial CRDC reports to highlight disparities in such areas as discipline, college and career readiness, and absenteeism.
Repeatedly in interviews, civil-rights stakeholders expressed their support of the OCR’s decision to make the CRDC more public-facing and to use it as a tool for shining a light on civil-rights issues. Liz King of the Leadership Conference points to this change as evidence that “leadership matters. From Arne Duncan, we saw a huge premium on data transparency” and a “strong emphasis on CRDC.” They also expressed concern that this could change in the Trump administration. Monique Dixon, the deputy director of policy and senior counsel at the NAACP Legal Defense Fund, praised the Obama administration’s transformation of the CRDC into a mechanism for confirming the scale of civil-rights abuse, but she worries that the new administration could mean a “return to inactivity.”
The staff that created the reports will remain in place at the OCR, but it will be up to Secretary DeVos and her assistant secretary for civil rights whether they will carry out that task. It is easy to imagine the argument from the incoming administration: that the extent of the data collection places an unreasonable burden on schools, and so it needs to be scaled back. When I asked Gerard Robinson, an adviser to Trump's education-policy team, about this possibility, he suggested that the changes made to the CRDC were part of Secretary Duncan’s “data-driven vision,” which he attributed to his having been a superintendent. Robinson asserted that Trump “is also a data guy. Betsy DeVos is also a data person.” No data were provided to back up these claims.
Senate Rescinds Education Regulations, Clearing the Way for Additional State Discretion, Disparate Accountability Schemes, and Vast Inequality
Last week, in two separate votes, the Senate voted to rescind to different aspects of the regulations the Obama administration had passed to implement the Every Student Succeeds Act. On Wednesday, the Senate voted to rescind teacher training and evaluation regulations. On Thursday, the Senate voted to rescind regulations regarding the identification and assistance of struggling schools. Previously, I was skeptical that it would come to this, primarily because the Department of Education itself lacked a leader who understood the regulatory structure and could provide an alternate vision moving forward. Regardless, without a new vision, the regulation rescission opens the way for the Wild Wild West of state implementation plans.
The statutory text of the Every Student Succeeds Act extends an enormous amount of discretion to states. Absent regulatory guidance, states lack any clear starting point for developing plans to implement the Act's accountability system. For instance, the Act indicates that states must consider proficiency tests, measures of growth, and graduation rates, but does not indicate how much any of these factors must count in a state's accountability plan, nor does it explain how each one of these measures is to be calculated. The only directive in the statute is that together these objective factors much count for more than other factors that a state might consider. Moreover, a state is free to consider almost any other factors its deems appropriate for assessing schools. The Obama administration's regulations did not eliminate this flexibility, but attempted to provide some guidance. With the rescission, it is altogether possible that the Department of Education will receive fifty entirely distinct approaches to implementing the Act and assessing school effectiveness. And the Secretary is going to be obligated to approve them.
If one sees states as engines of educational equality and improvement, this flexibility is a good thing. But if is history is any guide, this flexibility portends serious problems. States' historic resistance to desegregation, racial equality, and funding fairness is well-documented. Some, including the Secretary of Education, assume these are problems of the past, but as I detail in Abandoning the Federal Role in Education, the past is repeating itself, particularly in school funding:
Between 2008 and 2012, nearly every state in the country imposed large budget cuts in education. Some were more than $1000 per pupil and enacted in multiple years. The most obvious results were teacher lay-offs, pay cuts, increases to class size, and a downgrading of teacher quality among new hires. Sometimes less obvious was the fact that these cuts were targeted at or felt most directly in the highest need districts.
These budget cuts cannot simply be written off to the Recession. To the contrary, states regularly enacted cuts in excess of what was necessary and maintained most of them after tax revenues returned to pre-recession levels. States also cut traditional public school budgets at the same time that they were doubling funding for charters and sometimes tripling and quadrupling funding for vouchers. As of 2014, two-thirds of states were still funding education at a lower level than they did in 2008. Some states were a full 20 percent or more below the pre-recession levels. In short, states’ willing and active decisions enact deep cuts to education and maintain them over several years is troubling evidence of what, at best, is ambivalence to equality and adequacy and, at worst, hostility.
In sum, returning massive educational discretion to states through ESSA is inconsistent with the goals of educational equality and adequacy. States have historically served as an impediment to racial equality and meeting the needs of disadvantaged students. The federal government and ESEA have served as an important counterweight. In the absence of that counterweight, history offers no basis to believe states will improve educational opportunities for those in need. Moreover, historical trends aside, this return of power occurs at the same time when states are regressing in their commitment to adequate and equal educational opportunities. In this context, the fact that states have welcomed ESSA should be cause for alarm.
While some extol state and local flexibility as a normative value, it has the potential, in many states, to become synonymous with inequality, just as states' rights once were synonymous with segregation. Whether anyone intends this result is beside the point.
Friday, March 10, 2017
What Is an "Appropriate" Education for Students with Disabilities?; The Court Will Tell Us Soon by Jonathan D. Glater
Just how much must a school district do to support the educational opportunity of a disabled student? Just enough to enable that student to get something, anything, out of the education provided? Or enough to enable that student to thrive, to excel?
The question has confronted courts for years, as parents of disabled children have demanded that school districts do more to provide their children a “free appropriate public education.” But the meaning of this phrase, typically abbreviated as “FAPE,” has eluded precise definition. When the Supreme Court addressed the question, in Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), a majority concluded that
[A] “free appropriate public education” consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child "to benefit" from the instruction. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State's educational standards, approximate the grade levels used in the State's regular education, and comport with the child's [individualized education program – more on that below]. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a "free appropriate public education" as defined by the Act.
The Court’s language suggests that any benefit is sufficient to satisfy the requirement that schools provide FAPE; Justice Rehnquist, who wrote the majority opinion, took a very literal and formal approach to the language of the law to reach this Court’s conclusion.
Congress imposed the FAPE mandate in the Education for all Handicapped Children Act of 1975, Public Law 94-142, subsequently re-enacted as the Individuals with Disabilities Education Act (“IDEA”). The meaning of FAPE is before the Court again this year.
The plaintiff in Endrew F. v. Douglas County School District RE 1 was diagnosed at age two with autism and attention deficit/hyperactivity disorder (“ADHD”). As a result of these conditions, he “struggles with the ability to communicate personal needs, emotions and initiations [sic], and does not engage or interact with others in social routines or play.” Endrew F. v. Douglas County School District RE 1, 2014 WL 4548439, *1.
During his fourth grade year, his parents removed him from his public school in Douglas County, Colo., and placed him in a private school specializing in education of children with autism. His parents sued, claiming that the school district in prior years had failed to provide the boy with a FAPE and demanding that the district reimburse them for the cost of attending the private school.
An administrative law judge ruled against Endrew F.’s parents, finding that he received a FAPE, and so concluded that his family was not entitled to reimbursement of expenses. The trial court judge, who reviewed Endrew F.’s progress in public school before he switched, concluded that Endrew F. had received some educational benefit under the individualized education program (“IEP”), the kind of plan called for under IDEA. The district had developed Endrew F.’s IEP in an effort to comply with the FAPE mandate.
A panel of the Tenth Circuit Court of Appeals affirmed the district court, and the Supreme Court granted certiorari. The precise question that the case presents to the Supreme Court, which heard oral argument in January, is this:
What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate education guaranteed by the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et seq.?
The deeper issue is the meaning of equality. A demand for equal treatment is not satisfied by providing light for the seeing and the blind student alike.
IDEA seeks to “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living,” 20 U.S.C. §1400(d)(1)(A). But how are we to know that a given level of support has leveled the playing field for a disabled student?
Answering will only grow more difficult as we recognize students’ incredible diversity; students’ ability to take advantage of educational offerings lies along a spectrum. So the assumption that a one type of education serves nearly all will become one type serves some, and then, one type serves a few. Whether schools’ offerings evolve in response will likely be a political question rather than a doctrinal one.
Still, depending on how broadly the Court rules, the decision in Endrew F. could have far-reaching consequences, imposing clearer obligations on school districts to support disabled students or putting another hurdle in the way of parents seeking the best for their children. By June we will know whether a majority of the justices prefer the limited and formalistic interpretation of the majority in Rowley or a more idealistic interpretation that may impose greater costs on schools and would afford appropriate benefits to students.
Tuesday, March 7, 2017
Yesterday, I remarked on how the Kansas Supreme Court has stood firm in insisting that the state properly fund education, offering a model for other state courts. An interesting possibility may arise soon in Wyoming. Wyoming has excellent precedent, but has largely flown under the radar in for the past decade. Increased funding struggles in recent years suggest that litigants may once again take to the courts. The Wyoming legislature was patting itself on the back for finding a supposed solution last week, but far more appears necessary. The Miami-Herald reports:
A compromise reached in the final hours of the legislative session Friday cleared the way for lawmakers to approve an education finance bill containing spending cuts but no taxes.
Fixing an education funding shortfall on track to top $380 million a year was one of Gov. Matt Mead's top hopes for the eight-week session. The bill, which would launch a potentially years-long process of addressing the shortfall, now heads to his desk.
The bill carries $34.5 million in education cuts. While not nearly enough to erase the shortfall before it sets in next year, the cuts accompany a plan to study and revamp education funding amid weak state revenue from coal, oil and natural gas extraction.
"It's not a solution. But I think it's another step," House Speaker Steve Harshman, R-Casper, said in urging House approval of the bill. "There's going to be thousands of more steps."
The House voted 45-13 and the Senate 25-4 to approve the bill.
"We really, honestly, I think got our own way," Sen. Hank Coe, R-Cody, told fellow senators.
With Mead's approval, a special legislative committee and Mead appointees would get to work on the problem year-round.
The bill remained in limbo through most of the session's last day.
The House voted 51-9 Friday morning not to agree to Senate changes to the measure. Those changes included stripping a half-cent state sales tax increase and reallocation of $84 million in mineral tax revenue toward K-12 education.
Monday, March 6, 2017
With the advent of the new administration in Washington, levels of stress are rising for members of minority groups of various kinds – religions minorities, Latinos, African Americans, recent immigrants, to name just a few. This has gotten me thinking about research on the effects of stress that perhaps has gone underappreciated in legal academy.
In a provocative article that came out in the American Psychologist this fall, a team of researchers at Northwestern University has suggested that stress related to race contributes to differences in academic performance between students who belong to racial minority groups and students who do not. This paper is behind a pay wall for now, but much of the research that builds up to it is not, and a PowerPoint presentation that Prof. Adam used presenting the underlying data at Stanford last year is available here.
The article, Psychological and Biological Responses to Race-Based Social Stress as Pathways to Disparities in Educational Outcomes, begins with a concise survey of research on differences in academic performance among different racial/ethnic groups. Disparities in academic performance track differences in class, defined by parental education and/or by income level, as well as race, but class does not explain all the difference. The authors, a team consisting of Dorainne J. Levy, Jennifer Heissel, Jennifer A. Richeson, and Emma K. Adam, propose that response to stress may contribute to the explanation.
Psychological stressors, including stereotype threat and perceived discrimination, affect levels of cortisol, a hormone, in the body. Sustained and elevated levels of cortisol can adversely affect executive functions, including attention and memory – both critical to good academic performance. Race-based stress may also affect sleep patterns and less, or lower-quality, sleep also affects academic performance adversely.
The analysis and argument of the article builds upon a prior research project that involved all of the authors and several more. The prior paper, which is not behind a pay wall and is available here, described results of a twenty-year study of cortisol levels in about 120 people, including equal numbers of blacks and whites, beginning in seventh grade.
Participants in the study reported the degree to which they perceived themselves as having experienced racial discrimination. The authors of this prior article found in black people a flatter pattern of cortisol over the course of the day, reflecting a lower level of cortisol upon waking and a higher level over the course of the day and into the evening, perhaps as a result of coping with race-based stress.
For a legal audience, the more recent of the two articles is helpful as a literature review. Along with prior work by the authors, it also presents a doctrinal provocation. It offers further evidence of the gap between Supreme Court doctrine on race in the context of education, on the one hand, and life on earth, on the other.
In doctrine-land, the justices have permitting consideration of race to promote student body diversity and have effectively ruled it out as a policy response to the effects of discrimination in general. But the article by Levy et al. shows the effects of perceived racial discrimination that persists in the real world today. If the authors are correct, then race discrimination imposes an ongoing, physically discernible harm – otherwise known as a tort.
That in turn suggests that there should be a remedy, or at least some sort of policy response. The challenge for lawyers and legal academics is concocting a doctrinal pathway around the conclusion of Justice Powell in Regents of the University of California v. Bakke, in which he wrote,
[T]he purpose of helping certain groups who[ are] perceived as victims of “societal discrimination” does not justify a classification that imposes disadvantages upon persons … who bear no responsibility for whatever harm…. (438 U.S. 265, 310)
Kansas Supreme Court Smacks Down Legislative Nonsense in School Funding, Offering Model for Others to Follow
Last week, the Kansas Supreme Court issued another opinion in its long running quest to ensure that the state complies with its constitutional duty to provide equal and adequate educational opportunities. This one may have offered the most poignant smack-downs of a state legislature in some time. The state brought the rebukes on itself by putting forward what would seem to be outrageous claims based on the facts. On the other hand, Texas got away with a similar tactic less than a year ago and it supreme court ran with it. The Kansas Supreme Court noted as much, but emphasized, in effect, that Kansas isn’t Texas and nothing has changed since the last several times it has found that the state constitution requires it to do its job in regard to education.
The court began with a broad overview of current achievement in the state, writing that as of 2015-2016:
- Approximately 15,000 of our state's African American students, or nearly one-half of their total student population, are not proficient in reading and math—subjects at the heart of an adequate education.
- Approximately 33,000 Hispanic students, or more than one-third of their student population, are not proficient in reading and math. When combined with the 15,000 underperforming African American students, the sum equates to approximately all the K-12 public school students in every school district in every county with an eastern boundary beginning west of Salina—more than one-half of the state's geographic area.
- More than one-third of our state's students who receive free and reduced lunches are not proficient in reading and math.
The evidence developed in the lower courts demonstrated that these achievement levels were “related to funding levels. Accordingly, we conclude the state's public education financing system, through its structure and implementation, is not reasonably calculated to have all Kansas public education students meet or exceed the minimum constitutional standards of adequacy.”
The most compelling explanations, however, were in the details. In the body of its opinion, the court explained:
every witness, including experts, who testified on the subject confirmed that the costs of educating Kansas students and the demands on Kansas education had only increased since 2007. The panel found, based on this testimony, that while the demands on schools increased—including the size of student populations—the available resources declined, creating a gap between demands and resources in Kansas public education.
But during that exact same period, the state was cutting basic aid to districts. The Kansas State Board of Education (SBE) recommended that the legislature fund its basic formula at $4,492 per pupil. Instead, the state funded it at $3780 per pupil. The state then commissioned two school funding studies, both of which recommended funding the formula “well above this $3,780 amount and similar to those of the 2010 Commission and the SBE.”
Because of the funding cuts, districts were forced to eliminate the very programs and services that experts showed would improve educational equality and adequacy, “such as longer school days, Saturday school, all-day kindergarten, before and after school programs, extracurricular activities such as speech and debate, band and orchestra, smaller class sizes, professional development, and the employment of qualified teachers.”
“The panel also found the 2009 budget cuts forced school districts statewide to cut 2,500 positions—including 1,567 for teachers. These reductions undoubtedly increased class sizes because they occurred when statewide full-time enrollment was increasing. Additionally, teacher salaries remained largely stagnant, while some had to be reduced.”
The most significant rebuke came in regard to the state’s claims that student achievement had increased due to state action. In other words, the state wanted credit rather than fault. The court recognized past improvements, but emphasized that “student achievement rose when funding increased after Montoy IV in 2006 but eventually fell when funding began to decrease in 2009.” The clear reversal in state policy regarding funding demostrated that
“money makes a difference” in public education. . . . [I]t cited Kansas cost studies, particularly the legislature's LPA study of 2006. That study concluded, with ‘99% confiden[ce],’ that the relationship between student performance and district spending was positive, i.e., that a 1% increase in student performance was associated with a .83% increase in spending. And the legislatively-created 2010 Commission concluded that “Kansas students have made great academic strides ... largely due to the infusion of school funding.”
Based on these finding, the court set this summer as the deadline for the state to come up a remedy.
One can only hope that other court recognize the Kansas Supreme Court as a judicial model for leading them out of the dark era of the past decade. As I detail here, state legislatures have been drastically cutting education and the vast majority of state supreme courts have been letting them. Some supreme courts have even reversed prior positions in support of equal and adequate funding. Things have gotten so bad that I argued that courts were doing long term damage not only to education but to their own institutional authority.
This new Kansas Supreme Court opinion does an excellent job of going well beyond social science debates to offer a wake-up call to its legislature and others. The court establishes, through concrete evidence, the direct links between Kansas's reduction in education funding and student outcomes. The link was so strong because the state had acted so abruptly and decisively.
Friday, March 3, 2017
Preston Green, Bruce Baker and Joseph Oluwole have forthcoming paper in the Indiana Law Journal. The title speaks for itself: Are Charter Schools the Second Coming of Enron?: An Examination of the Gatekeepers That Protect against Dangerous Related-Party Transactions in the Charter School Sector. The abstract offers this summary:
In 2001, Enron rocked the financial world by declaring bankruptcy due to the effects of an accounting scandal. Special purpose entities (SPEs) were instrumental to Enron’s demise. Enron parked assets in the SPEs to improve its credit rating.
Enron violated accounting principles by not revealing that its SPE partnerships were related-party transactions. Andrew Fastow, who was Enron’s CFO, made millions of dollars by managing the SPEs. He also used these illegal proceeds to invest in other ventures. Enron’s gatekeepers failed to protect against this accounting fraud.
Related-party transactions are now posing a threat to the charter school sector. Similar to Fastow, individuals are using their control over charter schools and their affiliates to obtain unreasonable management fees and funnel public funds into other business ventures.
In this article, we discuss how some charter school officials have engaged in Enron-like related-party transactions. We also identify several measures that can be taken to strengthen the ability of charter school gatekeepers to protect against this danger.
This article is divided into four parts. Part I describes how Fastow used his management of Enron and the SPEs to obtain illegal profits. Part II discusses why financial sector gatekeepers failed to stop these related-party transactions. Part III shows how charter school officials are benefitting from their control over charter schools and their affiliates in a manner similar to Fastow. Part IV analyzes pertinent statutory and regulatory provisions to identify steps that can be taken to increase the gatekeepers’ ability to protect against harmful related-party transactions.
Tuesday, February 28, 2017
Mack Beggs, 17, won the Texas state girls’ wrestling title on Saturday culminating in an undefeated season for the young man. Unfortunately, this was not the division Beggs wanted to compete in – a sentiment shared by his competitors and other members of the community. Beggs was born female, but according to the Star-Telegram, his parents recall Beggs identifying as male as early as age 3. After a long wait, Beggs was finally able to begin transitioning a little more than a year ago with the use of testosterone therapy. Naturally, the treatment has promoted substantial growth in muscle mass and physical strength.
There was overwhelming community support behind Beggs’s desire to wrestle in the boys’ division, but the University Interscholastic League, the state’s governing body for public school athletics, prohibits gender integrated athletics. The Dallas Morning News reports that in 2016, 95% of Texas Superintendents voted in favor of amending the UIL’s constitution to require student athletes compete as the gender identified on their birth certificate.
The expansion of sex-separated teams in public school wrestling has been a recent development. I was on a wrestling team in Tennessee from 2005-2008, and I had the opportunity to wrestle several females over that course of time. My female opponents were never conclusively less capable than the male opponents. Importantly, these opponents were females both on their birth certificate and in identity. Mack Beggs is not. Beggs testosterone therapy and male identity create actual differences between him and his female competitors. Since we have allowed female wrestlers to compete with males as a matter of practice before sex-separated teams, why not allow them to compete now?
It’s likely the UIL policy was promulgated to protect female competitors from competitors labeled male on their birth certificate, but incidentally the policy has created a situation where female competitors are forced to wrestle a male. Beggs may not be male according to his birth certificate, but according to his strength, muscle mass, and undefeated season – many would concede that Beggs is male, thus creating the problem the UIL wanted to avoid.
Under the Obama administration’s policy guidance, Beggs likely could have filed an administrative complaint with the Office for Civil Rights, alleging discrimination under Title IX. The Trump administration, however, recently reversed that policy position. The Supreme Court will presumably pick sides later this year in its pending case, Grimm v. Glouchester County, which addresses transgender students’ access to bathrooms consistent with their gender.
But even if the Court sides with the new administration and concludes that sex discrimination only means biological sex or the sex indicated on one’s birth certificate, the UIL can still find a workable solution. If the UIL’s real concern is male domination of the female wresting division, it could adopt a policy whereby females can compete in the male league, but still prohibit males from competing in the female league.
While this sex-based inequity would certainly present a prima facie case of discrimination, it would likely pass judicial scrutiny. In order to survive scrutiny, the state must show an important government interest for the discrimination and that the chosen means are substantially related. The important interest would be an effort to redress past discrimination against females. The means would be substantially related to this interest by maximizing opportunity for females. The minimal effect this policy change would have on males further increases the likelihood of surviving scrutiny.
On the other hand, the current justifications for prohibiting girls from competing on boy’s teams are marginal at best. Common arguments for sex-separated athletics focus on safety of the female competitor, but sex is not determinative of the risk you take in a sport—particularly in wrestling. When your competitors are determined by weight division, the organizational structure precludes a situation where a male’s natural difference in size imposes greater risk on his female opponent. Even if the average male within a given weight class is stronger than the average female, it is two individual students who take the mat, not students who represent the mean characteristics of their sex. A 6’3, 140 lbs., male with relatively little muscle mass may face off against a 5’7, 140 lbs. female who is all muscle. Or an overweight and weak 5’4, 170 lbs., male may face off against a lean 5’10, 170 lbs. female. I have seen these types of match-ups on the mat before, and they were no different than had two males of those characteristics competed.
This policy is not far from the preferred one that the National College Athletics Associate already uses. The NCAA policy requires students similarly situated to Beggs compete in the male league. Under NCAA policy, transgender female-to-male students who undergo testosterone treatment therapy like Beggs must compete in the men’s league. Conversely, male-to-female athletes cannot compete on a women’s team without at least one year of testosterone suppression therapy. For transgender students who do not receive hormone therapy, female-to-male students are allowed to compete on men’s or women’s teams while male-to-female students are barred from women’s teams. These policies appropriately accommodate transgender athletes while balancing the interest in safety of the competitors. Under the NCAA policy, a girl – not a boy - may have actually won the girls’ state title, and Mack Beggs could have won the boys’ tournament.
Jonathon Reynolds is a law student at the University of South Carolina.
Monday, February 27, 2017
Meredith Simons' student note in the Duke Law Journal makes an excellent point that, on its face, should have been obvious to scholars and courts for some time: if due process applies when a school suspends or expels a student, it should also apply when a school asks an officer to arrest a student or give a student a citation. So much past scholarship has focused on whether the officer is subject to reasonable suspicion or probable cause standard that it has missed what was in front of our eyes the whole time: Goss v. Lopez's due process analysis. That Simons' went back to the basics and rethought the legal structure of student arrests and citations is a testament to fresh eyes and doing first things first.
Her abstract offers this summary:
There are two primary ways that schools can funnel children into the “school-to-prison pipeline.” The first is by simply removing children from school via expulsions and suspensions, which increase students’ chances of dropping out and getting in trouble with the law. The Supreme Court, recognizing the serious consequences of being forced out of school, has held that expulsions and long-term suspensions constitute deprivations of students’ property interest in their educations and liberty interest in their reputations. Thus, schools seeking to expel or suspend students must provide them with basic due process protections. But schools can also refer students directly to the justice system by having police officers arrest students or issue citations at school. Under current law, these students are not entitled to any due process protections at the point of arrest or referral.
This Note argues that the absence of due process protections for students who are arrested or referred to the justice system at school is incompatible with the Supreme Court’s procedural due process jurisprudence in general and its decision in Goss v. Lopez in particular. The same property and liberty interests that the Court identified as worthy of protection in Goss are implicated by in-school arrests and referrals. Therefore, school administrators who intend to have a child arrested or referred to the justice system should be required to provide students with oral notice of the accusation against them and an opportunity to respond. After an arrest or referral, the school should provide students and their parents with written notice of the arrest or referral and the rationale for the action. These measures will not unduly burden administrators or schools, but they will provide meaningful protections for students.
Get the full article here.
Now that the Trump Administration has explicitly disavowed guidance to schools on treatment of transgender students, it is worthwhile to revisit exactly what lawyers for the Justice Department and the Education Department wrote way, way back, last May, in a now-distant era.
Last year’s guidance – which is accessible on the Web site of the Education Department – addressed the meaning of the nondiscrimination language contained in Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq. The law states:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
This kind of nondiscrimination language in other contexts, most notably employment, has been interpreted by courts as prohibiting differential treatment based on gender identity. (The law includes several exceptions for specific institutions and organizations, like the Boy Scouts.)
If the prohibition has this same meaning in education, then it bars schools, colleges and universities receiving federal money from treating transgender students and other students of the same gender identity differently. For example, to require a transgender student to use a locker room, rest room, or other school facility designated for use by students of a different gender identity would run afoul of Title IX.
Now, I mentioned that courts have found gender identity-based discrimination to constitute sex discrimination “in other contexts,” and that is because the cases cited by the two departments in the guidance did not involve Title IX – with one exception. As discussed in more detail earlier in another post, the Supreme Court will hear oral argument next month in Gloucester County School Board v. G.G., and that case is the exception.
Gloucester County does not directly or expressly raise the question of the meaning of the nondiscrimination language in Title IX, although the Court could resolve that issue for practical purposes. Rather, the Court ostensibly will rule on the extent to which the Obama Administration’s guidance should benefit from judicial deference, as it did in the opinion of a federal court of appeal. The Fourth Circuit cited the guidance in issuing an injunction requiring that a transgender boy be allowed to use the boys’ restroom at his school.
The question of deference is an interesting one, given that the guidance was not the product of formal notice and comment proceedings. Perhaps that is the reason that Sean Spicer, the White House’s press secretary, spoke about the Trump Administration’s view of the guidance as he did. In responding to questions from reporters about the Administration’s policy, Spicer spoke of “several areas of concern, both legal and procedural,” involving the guidance. He did not offer further detail on what those areas were.
Significantly, the Obama Administration’s guidance did not and does not “add requirements to applicable law, but provide[d] information and examples to inform recipients” of Federal funds about how the two departments will evaluate “whether covered entities are complying with their legal obligations.” So the obligation of schools to respect the rights of their students has not changed from whatever it was before.
But the likelihood of a federal effort to protect those rights has.