Friday, October 23, 2015
USA Today ran a relatively long and data heavy story on school funding earlier this month. For the specialist, there was not anything new in it. But it did offer a good general introduction to funding inequity, explaining that
Nationally, an average of 45.3% of total school funding comes from local sources. Only in one of the poorest districts does local spending account for more than 20% of the district's budget. In those same districts, state sources account for an average of 66% of total funding, and federal sources account for 18.1% of funding on average. Nationwide, state funding comes to 45.6% of total funding, and federal funding comes to just 9.1%."
The comparisons of funding both within and across state lines were also easy to digest. For instance, it framed the problem of inequity by pointing out "Nationally, public schools spend an annual average of $10,700 per pupil. In eight of the 10 wealthiest districts, spending is at least $20,000 per pupil." Get the full story and data here.
Thursday, October 22, 2015
The Children's Rights Litigation Committee of the ABA Section of Litigation is sponsoring a program on Current Trends with OCR Complaint Process on School Disparities and calling for speakers. The program is Monday, December 7, 2015 at 1:00 pm - 2:30 pm Eastern. You can register here.
This roundtable will discuss current trends and outcomes in the civil rights complaint process with the Office for Civil Rights of the Department of Education. The Roundtable will focus on Title VI complaints relating to the school-to-prison pipeline and disparities in school discipline. The program will gather attorneys, advocates, and representatives of complainants to share their experiences and outcomes in filing complaints. Speakers will also discuss a recently released memo which outlines the legal standards for disparate impact claims. This Roundtable is part of an ongoing effort by the Accountability Project, a subcommittee of the Children’s Rights Litigation Committee, to provide tools to civil rights, legal aid and pro bono attorneys in the OCR Complaint process.
Rosa K. Hirji, RKH Law Office, Los Angeles, CA
Rachel Flynn, Nelson Mullins, Columbia, SC.
Call for Speakers: We are looking for speakers who are willing to share their experiences in filing complaints. We would like to circulate your complaint, resolution agreement/letters of finding, and ask you briefly present to the group. If you are interested, please send me an email to firstname.lastname@example.org by November 16, 2015.
Two years ago, Philadelphia's public schools were the first to manifest the symptoms of Pennsylvania's unconscionable system of funding schools. The cuts the district had to make in basic services were startling, including telling full-time school nurses they could only work a day or two a week. When a young girl died shortly after school one day when the school nurse was told to stay home, the problem caught national attention. Shortly thereafter, the national civil rights community descended on the city and the former governor stepped in with short term aid.
Events like those prompted the state to establish a commission to come up with a new funding system. After a long listening and research tour, that commission made proposals this year, and the state appeared to be ready to move forward, albeit imperfectly. The governor proposed a $400 million boost to the state's education budget. The republican legislature responded with only a $100 million increase, apparently as leverage in another fight over taxes on natural gas drillers in the state.
Wednesday, October 21, 2015
Paulina Haduong, Zoe Emma Wood, Sandra Cortesi, Leah Plunkett, Dalia Topelson Ritvo, and Urs Gasser, Harvard University - Berkman Center for Internet & Society. Excerpted from the abstract:
Building off several prior working meetings which mapped and cthe Berkman Center for Internet & Society’s Student Privacy Initiative spoke with educators, policy makers, and industry representatives in May 2015 about the new and rapidly evolving ecosystem of networked technology being used with education (“ed tech”). In order to evaluate the challenges and opportunities fostered by the next generation of ed tech, participants were asked to consider four layers of the ed tech ecosystem: technological infrastructure, data, organizational structures, and norms and values. Keeping these layers in mind, discussion ranged widely across numerous themes, reflecting the participants’ diverse backgrounds and perspectives. This report seeks to summarize the conversation’s main themes and highlight suggestions for future action. In the following section, the main themes and observations are considered, including issues dealt with explicitly and at length, in addition to those that more quietly (and perhaps implicitly) surfaced at multiple points during the day. And although the third section concerns suggested areas for moving forward, these are meant to be understood as key highlights, and not a comprehensive summary. Available at SSRN: http://ssrn.com/abstract=2638022.
Using Michigan's attempt to raise money through tax increases for Detroit's education system as a case study, Shera Avi-Yonah and Reuven S. Avi-Yonah (Michigan) conclude that states are unable to adequately to correct the imbalance in educational equality between inner-city and suburban school districts. The authors propose that
the only solution is a federal solution. As President Nixon proposed in 1972, the United States should adopt an “EducationValue Added Tax” (E-VAT) and use the revenues to equalize per student school funding across the country, as well as funding universal free public pre-K programs (such as the ones instituted by Mayor DeBlasio in NYC) and universal free public colleges for in-state residents (as used to be the case in California). This, we will argue, will do more to address the root causes of lack of equality of opportunity in America than any other potential use of revenues from a federal VAT. Available at SSRN: http://ssrn.com/abstract=2636728
Frederick P. Aguirre (Judge, Superior Court of Orange County, Kristi L. Bowman (Michigan), et al. -
School desegregation is not just a "black and white" issue, and in fact it never has been. In 1931, a county court in Lemon Grove, California ordered a school district to stop segregating its white and Latino students. Fifteen years later in 1946, a court reached the same result in Mendez v. Westminster, becoming the first federal court to order the desegregation of schools. In this piece, Gonzalo Mendez and Sylvia Mendez (both now retired) recall their experiences as the children whose parents initiated the groundbreaking Mendez litigation, and the way in which their parents remembered the litigation. Sandra Robbie, who wrote and produced the Emmy-award winning documentary about the case, discusses its historical context. Frederick Aguirre, now a judge, reflects on the legal and personal significance of the decision. Philippa Strum, author of a book about the case, considers the unique challenges and rewards of writing about school desegregation cases. Kristi Bowman facilitates these various reflections and weaves them together. Available at SSRN: http://ssrn.com/abstract=2629146
Yesterday, Bill Garfinkel, in response to my post on a new segregation study and my reference to ability grouping raised the question of whether we hurt our strongest students and society overall by not offering some form of ability group that offers them the most challenging work they can do. And if so, how do can we deal with this issue in a way that is fair to all? His question is sufficiently important and complicated that it warrants a full explanation.
At the highest level of abstraction, ability grouping is not per se bad or good. It comes in many different forms, good and bad. Thus, the issue may be more one of implementation and form than ability grouping versus non-ability grouping. As to form, ability group can start at various different stages in school. Some elementary schools begin informally grouping students within classrooms and labeling them as rabbits, turtles, etc. as early as kindergarten. Grouping students, even if only within classrooms, is problematic at this very early stages, for reasons further suggested below.
Tuesday, October 20, 2015
A recent study by the National Center for Education Statistics at the U.S. Department of Education reached some new conclusions regarding the achievement gap between black and white students. First, it found that African-American students performed lower in predominantly African-American schools than in other schools. Most prior research attributes this lower performance to the concentration of poverty in those schools. The current study, however, found lower African American achievement even after controlling for poverty and other variables. Second, white students, in contrast, did not score lower in predominantly African American schools than in other schools. Third, because African American students' achievement was lower in predominantly African American schools and whites achievement remained steady there, the black-white achievement gap was larger in predominantly black schools and smaller in predominantly white schools.
Putting these finding together produces a pretty remarkable principle: attending predominantly African American schools hurt African Americans' achievement, but not Whites'. That is a remarkable conclusion, which will surely be subject to debate, critique, and further analysis. But if it is correct, it flies in the face of the conventional wisdom of many white families. The study's findings would suggest that white flight from integrated or predominantly minority schools is not about achieving better academic outcomes for white students, but about racial fears. By the same token, in gentrifying neighbors, white integration into predominantly African American schools is not the risky proposition many families might believe it to be.
Monday, October 19, 2015
A fascinating new study by Hunter Gehlbach, et al, Creating Birds of Similar Feathers: Leveraging Similarity to Improve Teacher-Student Relationships and Academic Achievement, finds that a significant portion of the achievement gap between disadvantaged students and others relates to how closely students and teachers relate to one another. The study also finds that administering surveys to teachers and students and using the results to help them focus on their common responses and interests significantly reduced the achievement gap--by as much as 60%. Although the researchers did not study it, I would speculate that relationship gaps also correlate with negative school discipline responses, which, of course, drive down achievement. If so, this survey intervention might also have a positive impact on reducing harsh discipline responses. The abstract offers this summary:
Christopher Suarez's article, Democratic School Desegregation: Lessons from Election Law, 119 Penn St. L. Rev. 747 (2015), is now available on westlaw. His abstract offers this summary:
Despite their joint relevance to democracy, no article to date has attempted to analyze election law alongside education law. This Article examines the relationship between the doctrinal threads of these bodies of law. From this study, this Article concludes that, while election law is imbued with democratic principles to guide courts and policymakers -- such as the one-person one-vote principle -- education law is not guided by any such democratic principles. Additionally, while electoral boundaries are viewed as malleable under federal law, school district boundaries are not. In light of these doctrinal differences, and in light of the importance of education to democracy, this Article advocates a policy of democratic school desegregation based on a principle focused on reducing socioeconomic isolation in schools. This democratic principle, referred to in this Article as the 60/40 principle, has the ultimate goal of ensuring that no child in the United States attends a school with a low-income student majority. Under this principle, school district boundaries are not sacrosanct and may be adjusted as a last resort to achieve the ideals of democratic school desegregation.
Friday, October 16, 2015
Eleventh Circuit: Ala. Education Assoc. Not Entitled To Discovery About Legislators' Subjective Intent In Passing Law Limiting Use of Funds
The Eleventh Circuit held yesterday that the Alabama Education Association (AEA) could not enforce subpoenas for lawmakers' files in its suit claiming that state Republicans retaliated against the association by eliminating automatic state payroll deductions for membership dues used for political activity. In 2010, the Alabama Legislature passed Act 761, which prohibited payroll deductions for state and local public-sector employee association dues if membership dues funded political activity. The AEA sued under sec. 1983, claiming that Act 761 violated its First Amendment rights because the the subjective motivations of lawmakers in passing the Act governmental retaliation against the AEA for its political speech on education policy. During the suit, the AEA sought subpoenas to show that state Republicans retaliated against the association by passing the restriction on payroll deductions of its members. Alabama legislators responded that legislative privilege shielded them from the AEA’s subpoenas to probe lawmakers' motivations for passing Act 761. The Eleventh Circuit agreed with the legislators. While acknowledging that the AEA's First Amendment claim was an important federal interest, that interest did not yield to legislative privilege. The circuit court distinguished those cases in which the federal interest would outweigh legislative privilege, such as a criminal prosecution. The court held, "the First Amendment does not support the kind of claim AEA makes here: a challenge to an otherwise constitutional statute based on the subjective motivations of the lawmakers who passed it." The Eleventh Circuit further relied on the Supreme Court's holding in United States v. O’Brien, 391 U.S. 367 (1968), that, as a “principle of constitutional law,” courts cannot “strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” The case is In Re: Bentley, 13-10382 (Hubbard v. Alabama Education Association) here.
Thursday, October 15, 2015
Deborah Tuerkheimer (Northwestern) has published Rape on and Off Campus, 65 Emory L.J. 1 (2015). The article argues that the criminal justice system’s treatment of non stranger rape reflects a doctrine woefully out of step with modern conceptions of sex. The abstract is below:
The need for institutional reform to address the problem of sexual assault, particularly on college campuses, is widely acknowledged. Unnoticed, however, is a profound disconnect between cultural norms around sex and the legal definition of rape. The Model Penal Code and a majority of states still retain a force requirement, effectively consigning most rape — that is, non- stranger rape — to a place beyond law’s reach. Of special concern, the dominant statutory approach misconceives or overlooks entirely the role of consent, which has become central to popular and political discourses around sexual assault. In the midst of increasing moves on campus to codify affirmative consent standards (“yes means yes”), rape law remains mired in an archaic view of consent as rather beside the point. This Article recasts the significance of law’s preoccupation with force by introducing a taxonomy of cases in which force and non-consent tend to diverge. The no-force/no-consent cases raise a question critical to ongoing reform efforts: does the absence of consent make sex rape? Outside of law, this inquiry has for the most part been resolved; what remains is to reconcile competing interpretations of consent’s meaning. In stark contrast, the criminal justice system’s treatment of non- stranger rape reflects a doctrine woefully out of step with modern conceptions of sex. Sexual agency provides the theoretical underpinning needed to close this gap.
Jason Nance's forthcoming article in Arizona State Law Journal, Dismantling the School-to-Prison Pipeline: Tools for Change, is now available on ssrn. On the most basic level, it is a treasure trove of social science sources on school discipline and juvenile justice. It collects several sources I had overlooked in the past. But it also does an excellent job of synthesizing the studies in a way that makes the sum greater than the individual parts. His abstract offers this summary:
The school-to-prison pipeline is one of our nation’s most formidable challenges. It refers to the trend of directly referring students to law enforcement for committing certain offenses at school or creating conditions under which students are more likely to become involved in the criminal justice system such as excluding them from school. This article analyzes the school-to-prison pipeline’s devastating consequences on students, its causes, and its disproportionate impact on students of color. But most importantly, this article comprehensively identifies and describes specific, evidence-based tools to dismantle the school-to-prison pipeline that lawmakers, school administrators, and teachers in all areas can immediately support and implement. Further, it suggests initial strategies aimed at addressing racial implicit bias, which is a primary cause of the racial disparities relating to the school-to-prison pipeline. The implementation of these tools will create more equitable and safe learning environments that will help more students become productive citizens and avoid becoming involved in the justice system.
Wednesday, October 14, 2015
Texas and South Dakota's No Child Left Behind waivers are safe, at least, for one more year, but the U.S. Department of Education has put them both on high risk status. The problem for both states is their teacher evaluation systems, which are not measuring up the Department's demands. Interestingly, Texas indicates it has no intent of meeting the Department's demands. The state's education commissioner said:
Throughout the waiver application process, I have made it clear to federal officials that I do not have nor will I ever seek the authority to compel local school districts to use one uniform teacher and principal evaluation system statewide. . . . Our state believes strongly in local control of our schools. As a result, we will continue discussing this specific point with the U.S. Department of Education, but they should not expect any shift in Texas' position.
Whether either state will suffer consequences for the position is not entirely clear. When the waiver process first began in 2011-12, Arne Duncan was inflexible in the conditions he placed on states. Either comply with his conditions or face sanctions under NCLB. This worked terrifically in getting all the states that actually needed waivers in line very quickly. They all promised to do exactly what Duncan demanded. Since then, a lot has changed.
For those who missed it, Edweek published a chart and synopsis of all the current litigation challenging states' teacher evaluation systems. Florida, Louisiana, Nevada, New Mexico, New York, Tennessee, and Texas all have ongoing cases. Most of those states actually have more than one case proceeding.
For a background explanation of how those teacher evaluation systems work and the practical and legal flaws embedded in them, see here.
Tuesday, October 13, 2015
Fifth Circuit Finds School District Not Deliberately Indifferent to Student-on-Student Racial Harrassment
The Fifth Circuit denied an appeal today of three African-American students who were subjected to student-on-student racial harassment at school, finding that the plaintiffs failed to raise a genuine dispute that the district was deliberately indifferent to the students' claims. Three African-American sisters sued the Marion Independent School District (Texas) and two of its employees under Title VI of the Civil Rights Act of 1964 and 42 U.S.C. § 1983, after fellow students called the sisters racial slurs and on sister found a noose near her car at school. The sisters also alleged that Marion ISD officials treated them differently for minor rule violations than their Caucasian peers. The students and Marion ISD were not able to resolve the girls' complaints about their treatment in school during grievance proceedings, and the sisters sued. This is the first time that the Fifth Circuit ruled on a Title VI claim premised on a racially hostile environment arising from student-on-student harassment. The circuit court adopted the deliberate indifference standard from the Supreme Court case Davis ex rel. Lashonda D. v. Monroe Cty. Bd. of Educ., analogizing that case's holding to Title VI (that a recipient of federal funding can be liable for student-on-student sex-based harassment under Title IX if the recipient was deliberately indifferent). The court then concluded that the district was not deliberately indifferent because Marion ISD took "relatively strong action to address the most egregious incidents" and made some effort in response to all of the incidents of harassment. The circuit court, following the the Supreme Court's admonition in Davis that “courts should refrain from second-guessing the disciplinary decisions made by school administrators,” affirmed the lower court's grant of summary judgment for the district on the Title VI claim. The case is Fennell v. Marion Independent School, 14-51098 (5th Cir. 2015).
Last August I posted an announcement from the First Amendment Law Review (FALR) here at the University of North Carolina School of Law for submissions for brief but engaging articles related to free speech in higher education. They have now extended the deadline until January 8, 2016. Borrowing now from the announcement in August:
This past year has brought a supreme court case in Maine, several complaints with the Office for Civil Rights, and federal litigation over transgender students' access to restroom and locker facilities. In all those instance, save the federal lawsuit, the student has won. The most significant current holdout, however, appears to be Illinois' largest school district, Palatine-based Township High School District 211. A transgender student there is seeking access to the girls' locker room. The district rejected her request. The district's explanation is that the "privacy rights of 12,000 students" outweigh the interest of the individual student seeking access. To permit a transgender student access would "infringe on the privacy of all the students that we serve," according to the superintendent. The ACLU assisted the student in filing a complaint over a year ago with the Office for Civil Rights. OCR responded that the district was violating Title IX, but the district still refuses to grant the student access. Most districts buckle after a negative finding by OCR. Now that this district has not, the question is whether OCR will be able to carve out some face-saving middle ground remedy or whether it will move toward the ultimate sanction of withdrawing federal funds.
Friday, October 9, 2015
Cribbed from the Northwest Arkansas Democrat Gazette: Another suit challenging the Arkansas Board of Education's decision to assume control of the Little Rock School District (LRSD) was filed Wednesday, this time in federal court. The federal complaint was filed by parents and students in the Little Rock district and two former school board members who were displaced after the state's January takeover of the district, after which a state court complaint was filed by the same attorney who represents the complainants in the federal case. The federal suit alleges that LRSD's black students suffered racial discrimination after a federal court held that the district had achieved unitary status in 2007, by being disciplined more harshly than their white peers, being educated in inadequate facilities, having their elected school board stripped of power, and by the district's building new schools away from majority-black areas. The complaint also notes that in the LRSD schools with a majority-white student body, the percentage of minority teachers are low (see graphic, courtesy of the Arkansas Times). The suit requests that the school board be restored, that LSRD be enjoined from opening a new school in west Little Rock (a majority-white area), and that the state be enjoined from approving new charter schools until the LRSD has a "constitutionally adequate" facilities plan. The Arkansas Times has posted an unofficial copy of the complaint in Doe v. Arkansas Dept. of Ed. here.
Thursday, October 8, 2015
Researchers at the University of Washington's Center on Reinventing Public Education (CRPE) released “Measuring Up: Educational Improvement and Opportunity in 50 Cities, a study that assessed cities across the U.S. including district- and charter-run public schools. The study examine how well each city’s schools are doing overall and how well they are doing for students from low-income households and students of color, who now make up the majority of America’s public school students nationwide. CRPE reports the following national findings:
- Performance in most cities is flat, with limited proficiency gains and large shares of schools stuck in the bottom 5 percent of schools in their state.
- Students from low-income households and students of color face staggering academic inequities, with limited access to high-performing schools and college preparatory experiences.
- Across the 50 cities, white students were four times more likely than black students to enroll in a top-scoring elementary or middle school.
- Black students were twice as likely to receive out-of-school suspensions as white students.
- Less than 15 percent of all high school students took the ACT/SAT in 30 of the 50 cities.
- Less than 10 percent of all high school students took advanced math classes each year in 32 of the 50 cities.
Tuesday, October 6, 2015
Following Education Secretary Arne Duncan's announcement last week that he is stepping down in December, eyes have turned towards Duncan's successor, John King. Here's U.S. News and World Report's 5 Things to Know about the New Education Secretary:
1. King was most recently the commissioner of New York state public schools. In this role, King oversaw New York's schools during a period of tumultuous change driven largely by the state's winning of a federal Race to the Top grant. He supervised the implementation of the Common Core State Standards, new teacher evaluations based in part on student test scores and the expansion of charter schools, among many other significant policy changes.
2. King says he owes his life to public school teachers: "Education can be the difference between life and death," King said last week during a press conference at the White House where President Barack Obama introduced him as the new acting education secretary. "I know that's true because it was for me. New York City public schools teachers are the reason I am alive. They are the reason I became a teacher and the reason I'm standing here today." King had a difficult childhood. By the age of 12, both of his parents, who were public school teachers, had died. After that, he lived with his half-brother, who had alcohol problems, and later his aunt and uncle. School, he said, was his sanctuary.
3. King has gone to battle with teachers unions: Like his predecessor Duncan, King had to stand up to teachers unions while commissioner of New York's public schools, a stance that hasn't historically been the norm for Democrats. In 2014, the state teachers union called for his resignation, and he's not exactly being welcomed into his new role with open union arms, either. "We are disappointed to hear that Deputy Secretary of Education John King Jr. will be appointed as the acting secretary," Randi Weingarten, American Federation of Teachers, said last week in a statement. "No one doubts John's commitment to children, but his tenure as New York state's education commissioner created so much polarization in the state with parents and educators alike that even Gov. Andrew Cuomo is finally doing a mea culpa over the obsession with testing. We can only hope that King has learned a thing or two since his tenure in New York."
4. King is big on charter schools: In 1999, King founded a charter school just outside Boston – the Roxbury Preparatory Charter School – that became the highest-performing urban middle school in Massachusetts. He helped open several others in New York City as the managing director of Uncommon Schools, a nonprofit charter management organization that focuses on closing achievement gaps and preparing low-income students for college. The organization oversees 24 schools throughout the city, as well as in upstate New York, Newark, New Jersey, and Boston.
5. King hasn't been OK'd by Congress for his current position and probably won't be the permanent secretary: When King first came on board at the Education Department, he was a "senior adviser" who was delegated the duties of the deputy secretary, even though he'd been tapped to replace Jim Shelton, who at the time was second-in-command at the department. His adviser title allowed him to shirk congressional approval, a laborious and increasingly political process. When Duncan says his final goodbye to the department in December, King's new position will be acting secretary, which once again will allow him to serve during the remaining year of the Obama administration without getting the OK from Congress.
Friday, October 2, 2015
Alabama Court Finds Police Officers' Failure to Adequately Decontaminate Students from Pepper Spray Effects and Use of Spray on Nonviolent Students Unconstitutional
The Northern District of Alabama ruled yesterday that Birmingham police officers (acting as school resource officers) used excessive force when they pepper-sprayed students who were not posing a danger and when officers failed to adequately decontaminate students from effects as recommended by the spray's manufacturer when there were available facilities to do so. discussed the suit earlier this year, The plaintiffs, students from eight of the city's nine high schools, alleged that local police used excessive force by spraying students with a substance called Freeze +P, a spray made up of Orthochlorobenzalmalonitrile (CS) and Oleoresin Capsicum (OC), that causes “strong respiratory effects" and "severe pain." The spray was used to break up fights, disburse bystanders, and discipline students who were verbally disrespectful but not physically violent. The officers were following Birmingham Police Department procedures in using the spray, as summarized by the court in Fig. 1. The district court found that the sprayings were unconstitutional seizures under the Fourth Amendment, and that officers' failure to arrange for sprayed students to be decontaminated was part of those ongoing seizures. Thus, the court concluded, the plaintiffs' claims were best evaluated under the Fourth Amendment's unconstitutional seizure doctrine, rather than the Fourteenth Amendment's "shock the conscience" standard. Turning to remedies, the district court found that six of the eight student-plaintiffs were entitled to damages. The court declined the plaintiffs' request to ban the use of Freeze+P in Birmingham schools, given the "scenarios when it is appropriate for S.R.O.s to use Freeze +P in the school setting." The court instead ordered the parties to meet and develop a training and procedures plan for S.R.O.s’ use of Freeze+P, including protecting uninvolved persons from overspray. The court also suggested that the Birmingham police chief remind his officers that "enforcement of school discipline is not part of their job description and that Freeze+P is not suited for general crowd control." Given the chief's comments earlier this year that the school system was too dependant on the police department to resolve low-level misbehavior, he may agree with the court's sentiment. The plaintiffs were represented by the Southern Poverty Law Center. The opinion in J.W. v. Birmingham Board of Education is here.