Tuesday, October 7, 2014
New Legal Scholarship: The Business of Charter Schools, NCLB Waivers, Expanding Vouchers, and Transgendered Student Legislation
The new issue of BYU's Education and Law Journal is out and includes the following articles:
Patrick J. Gallo, Jr., Reforming the "Business" of Charter Schools in Pennsylvania, 2014 B.Y.U. Educ. & L.J. 207 (2014).
Gallo addresses the current state of the charter school system in Pennsylvania and the need for reform. Summarizing some of the serious issues facing the charter system in Pennsylvania, the author states:
There are now more than 175 charter schools in Pennsylvania with over 105,000 students and approximately 44,000 more students on waiting lists. In addition, roughly 25 percent of the student population in the Philadelphia School District attend public charter schools. Moreover, government financed charter schools present a significant opportunity for profiteers looking to cash in on this modern day "gold rush," and, with very little oversight, Pennsylvania public charter schools have become fraught with "chicanery and greed . . . [,] excessive executive salaries . . . [,] nepotism, and [dubious] financial and real-estate transactions.
Monday, September 15, 2014
The editors of the journal shared the following with me and a particular interest in education:
The Richmond Journal of Law & the Public Interest is seeking submissions for our 2014-2015 volume. We welcome high quality and well cited submissions from academics, judges, and established practitioners who would like to take part in the conversation of the evolution of law and its impact on citizens.
Thursday, September 11, 2014
Although Education Law Prof Blog editor Derek Black (South Carolina) has referred to his scholarship in discussing the ED's "big waiver" policies, I don't think that we have posted his new paper, Federalizing Education by Waiver? (forthcoming Vanderbilt Law Review). In the paper, Prof. Black examines how NCLB waiver policies exceed Secretary Duncan's constitutional and statutory authority. The abstract is below, and the paper may be downloaded from SSRN here.
In the fall of 2012, the United States Secretary of Education told states he would use his statutory power to waive violations of the No Child Left Behind Act (NCLB), but only on the condition that they adopt his new education policies — policies that had already failed in Congress. Most states had no real choice but to agree because eighty percent of their schools were faced with statutory sanctions and fund termination. As a result, the Secretary was able to federalize two core aspects of public education over the next year. For the first time, school curriculum and the terms of teacher evaluation and retention came under the control of the federal government.
This Article demonstrates that this particular exercise of conditional waiver power was both unconstitutional and beyond the scope of the Secretary’s statutory authority. First, NCLB contained no notice that states might face waiver conditions when they first agreed to participate in NCLB, much less notice of the substance of those conditions. Spending clause doctrine requires both. Second, states’ inability to say no to these conditions raises serious questions of unconstitutional coercion. Third, the Secretary lacked explicit statutory authority to impose these conditions. At best, NCLB implies authority to condition waivers, but implied conditions would be limited to the scope of NCLB itself. The waiver conditions the Secretary imposed go well beyond the scope of NCLB. Fourth, to treat these particular waiver conditions as falling within the scope of the Secretary's authority would be to extend the Secretary the equivalent of law-making power, which separation of powers doctrines prohibit. The power to unilaterally impose open-ended policy through waiver conditions would be remarkable not just for its transformation of key aspects of education, but for the entire federal administrative state. It would open the door to the spread of a more expansive administrative power than ever seen before.
Thursday, August 14, 2014
The Journal of Law & Education is currently accepting manuscripts for publication in its 2015 volume. Manuscripts should be sent to the Journal at firstname.lastname@example.org. Questions about possible submissions may also be directed to Professor Josie Brown, Co-Executive Editor of the Journal, at Brownjf@law.sc.edu.
Josie F. Brown
Co-Executive Editor, Journal of Law & Education
Associate Professor of Law
University of South Carolina School of Law
Columbia, SC 29208
Monday, April 14, 2014
Journal of Law and Education Explores "Gay Talk," Disability Identification, and Cell Phone Searches
The Journal of Law and Education's new issue is available. The table of contents and article summaries are as follows:
Gay Talk: Protecting Free Speech for Public School Teachers
Stephen Elkind and Peter Kaufman.................................................................................... 147
Due to the harm free speech restrictions on teachers can cause students, this Article argues that when the Supreme Court revisits the question it left open in Garcetti v. Ceballos, it should create an exception for both university professors and public school teachers. An educator exception to Garcetti would mean that teachers’ speech to students about homosexuality is protected under the First Amendment if it satisfies the two-step Connick-Pickerington test, which governed public employees’ speech before Garcetti. At the heart of this Article is the idea that Garcetti’s broad effect will prohibit discussions on controversial matters from taking place in the public school classroom.
Education Clauses in Corporate Charters: How Child Welfare Law Confronted the Industrial Revolution
Jeff Lingwall........................................................................................................................ 189
This Article explores the history of corporations educating children in the U.S. through education clauses in corporate charters and other methods used to confront the emerging industrial order’s effect on children. This Article traces this history, beginning with colonial instruction laws, through corporate charters, and later, to more general instruction laws. The second section examines the state of colonial instruction laws and early corporate charters. The third section explores the history of educational clauses and alternative methods of educating factory children, giving historical evidence to suggest why some states employed this use of the corporate form while others did not. The fourth section explores the decline in apprenticeship and the rise of general compulsory attendance laws.
Introduction−A Response to Severely Discrepant Intervention?
Perry A. Zinkel.................................................................................................................... 225
Scientifically Supported Identification of SLD Using RTI: A Response to Colker
Amanda M. VanDerHeyden, Joseph F. Kovaleski,
Edward S. Shapiro and David T. Painter........................................................................... 229
This counterpoint to Ruth Colker’s review of controversies regarding how students identified as having a specific learning disability (SLD) can be most reliably identified and taught elaborates on notable points of disagreement. Our first point of disagreement pertains to Colker’s presentation of the current IDEA requirements related to the identification of students with SLD. Secondly, we disagree with Colker’s perspective that the inclusion of research-based intervention (RTI) was motivated by cost-savings and politics rather than science. Third, we disagree that universal screening tools can sensitively and accurately sort children into SLD and non-SLD groups. Our fourth point of disagreement is with Colker’s perspective regarding the need for IQ assessment to inform intervention selection. Fifth, we disagree that RTI will disenfranchise large groups of students who have above average abilities but have average achievement. Sixth, we disagree with Colker’s perspective that the declining incidence of SLD is caused by the implementation of RTI. Finally, we disagree with Coker’s urgency to provide the diagnostic label of SLD .
Joshua Weishart's new article, Transcending Equality Versus Adequacy, 66 Stan. L. Rev. 477 (2014), is now available on Westlaw. For those interested in school finance and equal opportunity, it is a must read. It is probably the most in-depth treatment of the theory behind school finance and educational opportunity published in the last one to two decades. Professor Weishart focuses on what others have only hinted at: the reciprocal relationship between equality and adequacy. As such, he proposes that our approach should be to deliver "adequately equal and equally adequate" educational opportunities (rather than just equal or adequate education). His abstract is as follows:
A debate about whether all children are entitled to an “equal” or an “adequate” education has been waged at the forefront of school finance policy for decades. In an era of budget deficits and harsh cuts in public education, I submit that it is time to move on.
Equality of educational opportunity has been thought to require equal spending per pupil or spending adjusted to the needs of differently situated children. Adequacy has been understood to require a level of spending sufficient to satisfy some absolute, rather than relative, educational threshold. In practice, however, many courts interpreting their states' constitutional obligations have fused the equality and adequacy theories. Certain federal laws express principles of both doctrines. And gradually, more advocates and scholars have come to endorse hybrid equality-adequacy approaches. Still, the debate persists over seemingly intractable conceptual precepts and their political and legal ramifications.
Tracking the philosophical origins and evolution of equality and adequacy as legal doctrines, I explain the significance of their points of convergence and argue that the few points of divergence are untenable in practice. Equality of educational opportunity should not be interpreted as pursuing equal chances for educational achievement for all children, because that ideal is infeasible. Nor should educational adequacy be interpreted as completely indifferent to objectionable inequalities that can be feasibly curtailed. Properly conceived, equality and adequacy are not merely congruent but reciprocal. That is, children are owed an education that is adequately equal and equally adequate.
Tuesday, March 18, 2014
AALS Call for Papers: Dead Upon Birth: The Inter-Generational Cycle of Thwarted Lives in America’s Poorest Neighborhoods
The AALS Section on Children and the Law is has announced a Call for Papers for the AALS 2015 Annual Meeting. The topic is Dead Upon Birth: The Inter-Generational Cycle of Thwarted Lives in America’s Poorest Neighborhoods.
“The D.U.B.” is a nickname southside Chicago residents have given a neighborhood exemplifying a tragic reality in many of this country’s urban and rural areas: Children are born into struggling families in deeply dysfunctional neighborhoods and have little chance for full and flourishing lives. In some parts of America, a boy born today is more likely to end up in prison than college and a girl is more likely to become drug addicted than married. Many parents keep young children in “lockdown” at home when they are not in school, to shield them for as long as possible from gang recruitment and gun crossfire. This panel will discuss the economic, political, and cultural causes of concentrated poverty, crime, and disease and alternative strategies for sparing children from it. Panelists will address, from a child-centered perspective, issues such as “neighborhood effect” on child development, state response to parental incapacity, housing policy, relocation programs, foster care and adoption, inadequate education, school disciplinary policies, access to healthcare, employment opportunities, substance abuse and mental illness, criminal law enforcement and incarceration, and societal responsibility for the circumstances in which children live.
Cynthia Godsoe, Brooklyn Law School, will be moderating the panel, which already includes Elizabeth Bartholet (Harvard Law School), Josh Gupta-Kagan (University of South Carolina School of Law), and James Dwyer (William & Mary School of Law).
The fourth panelist will be selected from the call for papers. There is no formal requirement as to the form or length of proposals. Preference will be given to proposals that are substantially complete and to papers that offer novel scholarly insights on the panel topic. A paper may have already been accepted for publication as long as it will not be published prior to the Annual Meeting. The Section does not have plans to publish the papers, so individual presenters are free to seek their own publishing opportunities.
Deadline: August 15, 2014. Please email submissions, in Word or PDF format, to the Program Committee c/o Jim Dwyer at email@example.com with “CFP submission” in the subject line.
Tuesday, February 25, 2014
R. George Wright's article, Post-Tinker, is now available at 10 Stan. J. Civ. Rts. & Civ. Liberties 1 (January 2014). The article argues that
the rise of computer communication by means of portable technologies [does not] necessarily condemn Tinker to irrelevance. It has recently been argued, for example, that "Tinker remains functional, and if properly applied to students' online expression, it can vindicate students' free expression interests while still allowing schools to properly regulate day-to-day student discipline and the educational process." And when we add in the options of modifying Tinker, as by abandoning either the first "disruption" prong or else the second "rights of others" prong, contemporary support for some version of Tinker is even broader.
At this point, however, it is fair, and indeed important, to ask about the likely consequences of radically abandoning Tinker. What might it mean, at this historical point, to abandon Tinker along with its qualifying and limiting cases? The discussion below pursues this question and eventually endorses just such a radical abandonment of Tinker. This is not an anti-student speech conclusion. It is instead a recognition of the importance of allowing public schools, if they so choose and within other constitutional and statutory bounds, to focus more on educational outcomes, equality, or other dimensions of the vital basic mission of contemporary public schools.
Wednesday, January 8, 2014
In The American Prospect this week, Richard Rothstein reviews Stuck in Place: Urban Neighborhoods and the End of Progress toward Racial Equality, a new book by sociologist Patrick Sharkey. Cribbing from the article: Sharkey’s evidence shows that low-income black children in the United States tend to be concentrated at the low end of the poverty line and are more likely to live in poor neighborhoods for multiple generations, as opposed to white children, whose family poverty tends to be episodic. For example, 48 percent of black families have lived in poor neighborhoods over at least two generations, compared to 7 percent of white families, and young blacks are ten times more likely to live in a poor neighborhood than their white counterparts. Sharkey argues that “the consequences of multi-generational exposure to concentrated poverty in neighborhoods of considerable violence, unemployment, single parenthood, environmental degradation, and hopelessness” compounds the effects of being poor. Sharkey presents evidence that “living in poor neighborhoods over two consecutive generations reduces children’s cognitive skills by roughly eight or nine points … roughly equivalent to missing two to four years of schooling.” Sharkey’s findings shed light on the factors that have stalled progress to close the African American educational achievement gap. Stuck in Place should also encourage conversation on the efficacy of federal K-12 education policies. Read the article here.
Thursday, December 19, 2013
A new article by Kristen Ulan examines the connection between home prices and school assignment zones, particularly in the context of school integration. She uses Charlotte, North Carolina, and Columbia, Maryland, as case studies to compare and contrast. Her introduction explains:
While price is a significant factor in purchasing real estate, more important is location. Different individuals have varied location requirements for their desired property. Younger individuals and couples without immediate family plans typically do not consider the assigned schools as much as a family with young children. Likewise, for those with young children, proximity to bars and nightlife is not as imperative as the local school district, neighborhood safety, and nearby children. The neighborhoods involved in this case note tend to attract families that care most about the school district and boundary lines. In Charlotte, North Carolina, there is a significant association between real estate prices and high school districting, whereas in Columbia, Maryland there is not the same association. Due to this, real estate prices for houses located in areas of proposed redistricting and border areas in Charlotte fluctuate and real estate in these areas tends to be underutilized. Because Columbia residents do not face the same fluctuation and uncertainty, there is greater incentive to fully utilize real estate by owners. The history of the areas suggests that this difference may lie in the different societal choices made forty years ago between integration or fighting integration in schools. Both counties' school board societal choice is still unfolding and the effects are much different in Howard County, which implemented voluntary integration, compared to Mecklenburg County, which fought to keep segregation all the way to the Supreme Court.
Her article offers fascinating and important analysis for anyone interested in the feasibility and politics of school integration. I would note, however, that it proceeds on a contested premise: that home location is tied to school assignment. As a practical matter, this is the case in the vast majority of districts. Thus, the premise has strong footing. But some integration policies disentangle home location from school assignment. In fact, that was exactly how the integration policies in Parents Involved v. Seattle Schools worked. Louisville, for instance, expanded the concept of neighborhood school. Students no longer had a single neighborhood school--traditionally the one closest to the home--but several from which to choose. This meant that a student's assignment zone was rather large.
This flexibility had an interesting effect on the housing market: there was not the same incentive to "buy into" a "desirable" neighborhood and, as a result, housing segregation actually declined. While the decline was small, the notion that housing segregation would decrease rather than increase in response to school integration is remarkable. My post on Greenville, SC, last month raises the same possibilities. Greenville has a completely open student enrollment process. All schools in the district are open to students from all locations. Historically, this type of plan has been dangerous for integration, unless specific controls and weights were built into the system. Somehow, however, Greenville has managed to make it work without weights. On the whole, its schools are effective and relatively integrated.
Ulan's article, nonetheless, makes an important contribution based on prevailing realities. The article's full citation is Kristen Ulan, How Uncertainty in the Redrawing of School Districts Affects Housing Prices, A Case Study: Comparing Neighborhoods in Charlotte, North Carolina, and Columbia, Maryland, 2 U. Balt. J. Land & Dev. 113 (Spring 2013).
Monday, December 9, 2013
Notwithstanding my railings on the current use of the NCLB waiver process and my suggestion that some waiver conditions are outside the scope of legislative authority, the issue remains complex and the opposing view worth considering. Earlier this year, David Barron and Todd Rakoff published In Defense of Big Waiver, 113 Columbia L. Rev. 265 (2013), which focuses on the constitutionality and virtues of the administrative waivers available under No Child Left Behind and the Affordable Care Act. The main thrust of the article is that, given the complexity of today's statutory and administrative state, the administrative waiver is nearly a necessity and something that works to both Congress and the Executive's advantage. Among other things, it helps Congress adapt laws to unforeseen circumstances and improves the political accountability of the executive branch. The abstract explains:
This Article examines the basic structure and theory of big waiver, its operation in various regulatory contexts, and its constitutional and policy implications. While delegation by Congress of the power to unmake the law it makes raises concerns, we conclude the emergence of big waiver represents a salutary development. By allowing Congress to take ownership of a detailed statutory regime--even one it knows may be waived--big waiver allows Congress to codify policy preferences it might otherwise be unwilling to enact. Furthermore, by enabling Congress to stipulate a baseline against which agencies' subsequent actions are measured, big waiver offers a sorely needed means by which Congress and the executive branch may overcome gridlock. And finally, in a world laden with federal statutes, big waiver provides Congress a valuable tool for freeing the exercise of new delegations of authority from prior constraints and updating legislative frameworks that have grown stale. We welcome this new phase of the administrative process.
The key question, however, is not whether the waiver is good policy (I believe I agree that it is), but whether it is constitutional. On this point, the tail seems to wag the dog in the article; good policy and practicalities motivate a favorable constitutional analysis. With that said, the article does give me serious pause in my initial conclusions about the constitutional issues. In this respect, the article is a success both in itself and for the administration.
A block quote of the conditional waiver analysis follows the jump.
Friday, November 8, 2013
The articles from Denver University's symposium on Keyes v. School District No. 1 are now available on westlaw. The symposium includes articles by Mark Tushnet, Kevin R. Johnson, Michael A. Olivas, Rachel F. Moran, and Phoebe A. Haddon, as well as memoirs by individuals personally connected to the events in Denver. While all address interesting topics, Mark Tushnet's keynote address and article, A Clerk’s-Eye View of Keyes v, School Dsitrict No. 1, 90 Denv. U. L. Rev. 1139 (2013), offer a particularly interesting account of the inner workings of the Court surrounding the case. Tushnet was clerking for Justice Thurgood Marshall when Keyes was decided. Relying on his personal experience and other new available materials from the Court, he explores the complexity of the Court's deliberations.
The story of these internal debates is not entirely new. Justice Powell's concurrence, for instance, explicitly reveals the depth of his disagreement with the Court. And, Bob Woodward and Scott Armstrong's book from 1979, The Brethren, also explored some of these divisions. Tushnet, however, best captures the doctrinal battles occurring on the Court and the personalities behind them. As he notes, seven out of eight justices found there to be a constitutional violation in Keyes. The fractured decision represented not so much a debate over what to do with Denver, but a fight over what Keyes would mean for places like Detroit and Boston.
Although not explicit in the opinion, the fight over busing largely drives the Court's final decision. Powell wanted to reject de jure versus de facto distinctions, but in doing so, he wanted to limit the available desegregation remedies, particularly busing. The majority wanted to keep busing as a way to affirmatively further integration. The only way it could get the votes to do that was by drawing a distinction between de facto and de jure segregation. That distinction would shield many districts from busing, but keep it well alive in throughout the south.
From my perspective , it is not clear that the Court fully appreciated the long term ramifications of its decision. The Court may have been too caught up in the times, which is understandable, and unsure of the best path in regard to its first northern desegregation case. Regardless, Keyes is later cited as the foundation for requiring intent to prove a constitutional violation in all racial discrimination cases. As a result, Keyes drew the line that placed the bulk of racial inequality in all areas of life off-limits. And while the de jure-de facto distinction may have saved busing in some districts (the evidentiary presumption in the case also became a powerful tool in the south), it created the principle by which to later place significant limits on desegregation. In effect, Keyes was the beginning of the end for desegregation.
All of the article titles and authors follow the jump.
Friday, November 1, 2013
Alexandra Muolo’s article, Not So Black and White: The Third Circuit Upholds Race-Conscious Redistricting in Doe ex rel. Doe v. Lower Merion School District, 58 Vill. L. Rev. 797 (2013), is now available on westlaw. Doe v. Lower Merion flew under the radar of most until the last minute. The case involved a school district with just two high schools and a minority population of around ten percent. The new student assignment plan split that minority community between the two high schools. Interestingly, the challenge to the race conscious redistricting came not from the white community but from the minority community.
In an analytically complex and extremely important decision, the Third Circuit held that Justice Kennedy’s concurring opinion from Parents Involved in Community Schools v. Seattle was the controlling opinion and, thus, race conscious plans that do not rely on individual race classifications to assign students are not subject to strict scrutiny. Within a few days of the decision, the Departments of Justice and Education issued policy guidance reaching the same conclusions themselves. In short, Doe v. Lower Merion is the most important post-Parents Involved decision available.
Muolo’s article offers an in-depth examination of this case, pointing out those key aspects of the redistricting process that made it constitutional. Muolo concludes on a practical note:
When school districts are faced with Equal Protection challenges, the first step of the court will be to determine the appropriate level of scrutiny. While race-conscious integration policies only demand rational basis review, the policies still must be rationally related to a legitimate state interest. Though there are several approaches that school districts can take to avoid constitutional challenge, Doe provides a practical example. By explicitly listing race-neutral grounds for redistricting--the Non-Negotiables and community values--Lower Merion School District was able to implement a race-conscious policy that was rationally related to the legitimate purposes outlined by the Board of Directors. In the case of student redistricting policies, therefore, practitioners must advise school districts to document the legitimate, race-neutral interests for redistricting. As such, the developers of the redistricting plan may also consider racial impact, which will foster integration.
Thursday, October 31, 2013
On valuing education, he says this stereotype is an assumption based on less parental involvement at the school building itself by low-income families, but he points out that the inability to be at school is caused by job, transportation, and other barriers poor families face, not a lack of interest. He says there is no information to infer that they actually value education less. The laziness stereotype is easily debunked by the fact that many poor families work more hours and jobs than other families. They just make less money. On substance abuse, he says data shows that wealthier families actually have a higher rate of alcohol and drug abuse than poor families. They, of course, also have more money with which to indulge.
The linguistic deficient, however, was the most interesting. He does not contest that lower income parents may have less formal vocabularies, which also manifests itself in their children’s oral communication. He does contest that they are less complex or necessarily eqaute to ignorance. He points to evidence that indicates oral vocabularies are not as closely linked to reading and writing vocabularies as one might think. In short, a child’s oral linguistics are not a limit on their ability to learn to read. This makes sense because, after all, reading is new to all kids, regardless of how well they might speak. Gorski acknowledges that low-income students do tend to start school with fewer reading skills than other students, but he argues this is a function of difference in access to quality pre-k educational opportunities, not necessarily their parents’ communication skills. His debunking of the bad parent stereotype is largely intertwined with the previous four points.
So why are these stereotypes so prevalent and where do they come from? Part of it, he says, is our
Thursday, October 17, 2013
Nancy Chi Cantalupo (Georgetown)'s abstract:
James G. Dwyer (William & Mary)'s abstract:
Proponents of school vouchers often tout parental choice as a vehicle for positive innovation, general improvement of school systems, and better education for individual children. This Article explains why this reasoning is fallacious.
The Endangered School District: The Promise and Challenge of Redistributing Control of Public Education
Daniel Kiel (Memphis)'s abstract:
The standard conservative view of privatization in education favors state funding of private schools, religious and nonreligious, without state oversight to ensure accountability for how the money is used. The standard liberal view opposes state funding of private schools regardless of whether there is state oversight to ensure that the funding improves children's secular education. This Article highlights the main points against both standard views, and it advances the intermediate position that states may provide funding for private schooling but only if they also regulate and oversee the private schools sufficiently to ensure state money actually improves the secular education those schools provide. The Article further critiques prevailing assumptions about what accountability entails, and it assesses to what extent there is real educational accountability in voucher programs today.
Beyond Title IX: Federal Legislative Antidotes to the Bullying & Harassment of Actual or Perceived LGBT & Gender Non-Conforming Students
Larry D. Robertson (Loyola University Chicago School of Law)'s abstract:
A hostile learning environment denies actual or perceived lesbian, gay, bisexual, and transgender (“LGBT”) and gender non-conforming students an education. Although Title IX of the Educational Amendments of 1972 (“Title IX”) can protect actual or perceived LGBT and gender non-conforming students from harassment, it sometimes fails. This Article argues that Congress should pass the Student Non-Discrimination Act of 2013 and the Safe Schools Improvement Act of 2013 to remedy the legal shortcomings of Title IX and protect actual or perceived LGBT and gender non-conforming students from the harassment and bullying they endure.
Wednesday, October 9, 2013
With at least 116 single-sex public schools across the country and 390 more single-sex classes in some subjects, Professors David Cohen (Drexel/Earle Mack) and Nancy Levit (UMKC) argue that gender-segregated education is long due for review by the U.S. Supreme Court. In their new article, Still Unconstitutional: Our Nation's Experiment with State Sponsored Sex Segregation in Education, the authors present their case that “sex segregated education violates the Equal Protection Clause, it has no “exceedingly persuasive justification” and instead exacerbates “outdated stereotypes” while “create[ing] [and] perpetuate[ing] the legal, social, and economic inferiority of women.”” An excerpt from the introduction to Still Unconstitutional: Our Nation's Experiment with State Sponsored Sex Segregation in Education (Seton Hall Law Review, Vol. 44, 2014, forthcoming) is below:
The United States is seven years into an experiment with segregation in public education. This experiment, unlike the race segregation found unconstitutional in Brown v. Board of Education, is based on sex segregation. The experiment has benefitted from a peculiar alliance of political forces: conservatives, who have long believed that separation of the sexes is natural and appropriate, and some liberal groups, who see separatism either as a tool of liberation or as the lesser of bad alternatives compared to a flawed coeducational system. It resonates with a society that believes that men and women (and thus boys and girls), though equal, are inherently different. However, with seven years of experience with federally-sanctioned sex-segregated public education under the country’s belt, the arguments against sex segregation in public schools are even stronger than they were before the experiment began. Like the inherently unjust system of de jure race segregation that existed in this country, the current experiment is also unconstitutional.
In this article, we argue that this experiment must come to an end because it is educationally unsound, fundamentally discriminatory, and patently unconstitutional. We reach these conclusions by first reviewing the events that have led to state endorsed sex segregation in this country, the resulting expansion of such educational opportunities, and the legal developments since then. We break down buzzword justifications such as “choice” and “diversity” and highlight new research into brain differences (or lack thereof), educational outcomes, and sex stereotyping. In the process, we hold this expansion to the rigorous heightened scrutiny test employed by the Supreme Court for sex classifications and find that, like segregation based on race, segregating students based on sex violates the Equal Protection Clause.
Friday, October 4, 2013
This past spring, the Loyola Law Review hosted "Special Education in a New Era of Reform." It covered a wide spectrum of special education topics and included presentations by Paul Grossman, Chief Regional Civil Rights Attorney for the U.S. Department of Education, Dr. Marcia Arceneaux, former IDEA and NCLB Compliance Attorney for the Recovery School District, Professor Ruth Colker from The Ohio State University, Professor Wendy Hensel from Georgia State University, Professor Mark Weber from Depaul University, John Borkowski of Hogan Lovells, and Eden Heilman from the Southern Poverty Law Center. The articles from the symposium are now available on westlaw.
Mark C. Weber, ALL AREAS OF SUSPECTED DISABILITY, 59 Loy. L. Rev. 289 (2013).
Wendy F. Hensel, RECENT DEVELOPMENTS IN VOUCHER PROGRAMS FOR STUDENTS WITH DISABILITIES, 59 Loy. L. Rev. 323 (2013).
Eden B. Heilman, STRANGER THAN FICTION: THE EXPERIENCES OF STUDENTS WITH DISABILITIES IN THE POST-KATRINA NEW ORLEANS SCHOOL SYSTEM, 59 Loy. L. Rev. 355 (2013).
Marcia C. Arceneaux, THE IMPACT OF THE SPECIAL EDUCATION SYSTEM ON THE BLACK-WHITE ACHIEVEMENT GAP: SIGNS OF HOPE FOR A UNIFIED SYSTEM OF EDUCATION, 59 Loy. L. Rev. 381 (2013).
Lindsey H. Chopin, UNTANGLING PUBLIC SCHOOL GOVERNANCE: A PROPOSAL TO END MEANINGLESS FEDERAL REFORM AND STREAMLINE CONTROL IN STATE EDUCATION AGENCIES, 59 Loy. L. Rev. 399 (2013).
Wednesday, October 2, 2013
Last week, I posted on the release of Diane Ravitch's new book, Reign of Error: The Hoax of the Privatization Movement and the Danger to America's Public Schools. I am eagerly awaiting its arrival and will post a review once I read it. In the meantime, she offered us a fuller taste Friday in an interview with NPR. The interview indicates a no-holds-barred attack on charters, vouchers, and other reforms of the past decade, which she, of course, signed onto during the Bush administration, but now thinks better of. Speaking of school choice and charters, she threw several hard blows:
When people pay taxes for schools, they don't think they're paying off investors. They think they're paying for smaller class sizes and better teachers. . . . [Charters] have become part of the movement to turn education into a consumer product rather than a social and a public responsibility....What I mean is that you go shopping for a school. I don't believe in school choice. I believe that every neighborhood should have a good public school. And if the parents don't want the good local public school and they want to send their child to a private school, they should do so — but they should pay for it.
After this stinging critique, she emphasized that our schools are not in some new crisis. Rather, they are performing better than ever before. With that said, we do have significant pockets of dropouts and low performance. But these results are not a product of our schools somehow having sunk to new lows in terms of the education they offer. She cites the problem as the continuing presence of concentrated poverty. "Where there are low test scores, where there are higher dropout rates than the national average, is where there is concentrated poverty."
Much to my chagrin, she does not, however, seem to propose policies to deconcentrate poverty. Maybe she considers them unrealistic. Instead, she prescribes smaller classes, pre-k, and arts programs. I would agree that those are important programs that can provide significant help, particularly pre-k. I just hope she is not giving up on remedying the root cause of the problem.
Monday, September 30, 2013
Priscilla Wohlstetter, Joanna Smith, and Caitlin C. Farrell have published In Choices and Challenges: Charter School Performance in Perspective (Harvard Education Press, 2013). The book analyzes more than 400 journal articles and think-tank papers regarding charter school innovation, student performance, accountability outcomes, competition and more.
Cribbing from the press release:
On student achievement, which Wohlstetter calls the “lightning-rod issue,” she says “the-big finding that continues to hold up in state after state” is that “charter schools are over-represented at both the higher and lower ends of student achievement.” Which raises the policy question: “Why are we not replicating schools at the high end, and why are authorizers not closing down schools at the low end?”
On the question of how charter schools use their autonomy, the answer seems to be: not much and not terribly well.
Monday, September 23, 2013
Diane Ravitch has a new book out this week titled "Reign of Error: The Hoax of the Privatization Movement and the Danger to America's Public Schools." Ravitch does not appear to say American schools are excellent, but she argues that they are not in crisis and that the constant assertion that they are in crisis undermining them. In other words, the tail is wagging the dog in school reform. She also points out that we label students and schools as failing because we set unrealistic goals for them. This is not to say that we should set low goals, but that we can't expect students at severe disadvantage to achieve at the levels of privileged kids unless we first address those factors that make students disadvantaged. Likewise, it is not fair to compare our education system to Finland's--the top performing in the world--because Finland's poverty rate is only 5 percent whereas ours is about 7 or 8 times that rate.