Wednesday, November 18, 2015
New York Attorney General Eric Schneiderman sued the Utica City School District yesterday for excluding Limited English Proficiency students from the district’s only high school and instead diverting them to unequal educational services that did not allow them to earn a high school diploma. The Attorney General's complaint alleges that the Utica district had a written policy that if district officials perceived an immigrant student to be Limited English Proficiency and over the age of 16, the student was told that he or she was "too old" to enroll at the district's high school, Proctor. In contrast, English-proficient students over age 16 were permitted to enroll at Proctor High School. The Office for Civil Rights' guidance for recent immigrant (“newcomer") programs were intended to be a bridge to general education classrooms and the district's educational services. The district's newcomer program did not meet the OCR guidelines that such programs be voluntary, of limited duration, integrated with the district's services and opportunities for other students, and designed to lead to transitioning to general education. Instead, the complaint alleges, for the past two school years the district outsourced its duty to educate LEP students to third parties, such as a local refugee center, in violation of federal and state civil rights statutes and Plyler v. Doe. The district steered LEP to students to alternatives that were "educational dead-end[s]." The few LEP students who managed to enroll at the high school were assigned to separate extra-curricular activities, lunch rooms, and buses from the rest of Proctor's students. A private class action suit alleging the same discriminatory conduct is pending against the Utica district (Tuyizere, et al. v. Utica City School District, et al. (C.A. No. 15-cv-488 (TJM-TWD)). The Attorney General's complaint in Schneiderman v. Utica City School District seeks declaratory and injunctive relief requiring the district to change its discriminatory policies and agree to corrective oversight. The complaint is here.
Thursday, November 12, 2015
N.M. Supreme Court Holds That Instructional Materials Law That Benefitted Private Schools Is Unconstitutional
Following the majority of states, the New Mexico Supreme Court ruled today that the use of public funds to provide free textbooks to private school students violated the state constitution. The state supreme court, interpreting Article XII, Section 3 of the N.M. Constitution (which forbids the use of public funds for “the support of any sectarian, denominational or private school, college or university”), struck down the state's Instructional Material Law (IML), which allowed public funds to be used to lend instructional materials to public and private school students. The petitioners in the case are parents who challenged the IML as unconstitutional because it forced them to support religious private schools through public fund and parents sued N.M. Education Secretary Hanna Skandera. The parents' case was dismissed after the district court granted the Department's summary judgment motion; the N.M. Court of Appeals affirmed. In reversing the Court of Appeals, the state supreme court noted that while the lower court believed that the state constitution only protected against the establishment of religion -- similar to the federal constitution's Establishment Clause -- the N.M. Constitution actually prohibits providing materials for students attending private schools generally, "whether such schools are secular or sectarian." The supreme court reversed and remanded the case for the district court to find that the IML violated the state constitution. The case is Moses v. Skandera, No. 34,974 (N.M. Nov. 12, 2015).
Wednesday, October 28, 2015
Earlier this summer the Washington Post reported that a U.K. based English tutoring school changed its name from ISIS Schools to prevent confusion with the terror group called ISIS. Many companies around the world are doing that. What stood out was the ease with which ISIS Schools did it, compared with the hand-wringing that we go through in the United States to replace offensive or anachronistic school names. California just took a step forward Sunday with Governor Jerry Brown signing the California Racial Mascots Act, which prohibits public schools from using the term Redskins as a school or athletic team name, mascot, or nickname beginning January 1, 2017. California the first state to ban the use of the term "Redskins." Gov. Brown declined, however, to sign SB 539, which would have prohibited "the use of an elected leader or senior military officer of the Confederate States of America to name state or local property." Gov. Brown said in a veto statement that "[l]ocal governments are laboratories of democracy which are quite capable of deciding for themselves which of their buildings and parks should be named, and after whom."
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.
Friday, September 25, 2015
California School Board Association Sues State For Lowering Education Budget By $150 Million Through Legislative "Manipulations"
An alliance of school boards has sued California officials this week alleging that the state legislature "manipulated" what is included in the state's minimum education spending guarantee and thus violated the California Constitution's Article XVI, sec. 8, called Proposition 98. In the complaint filed September 22 by the California School Boards Association (CSBA) and Education Legal Alliance, the plaintiffs explain that Proposition 98 requires a minimum percentage of the state budget to be spent on K-12 public schools and community college districts. In 2011, the legislature moved childcare spending out of the education budget and adjusted or "rebenched" the minimum education spending guarantee to reflect the missing amount. When some childcare costs were added back in the current 2015-16 budget, however, the legislature did not readjust or "rebench" the minimum educational spending requirement, thus decreasing the minimum guarantee of Proposition 98 by $150-$180 million, the plaintiffs allege. The CSBA says that it does not object to childcare expenditures being part of the education formula, but does object to the legislature's inconsistency in defining what is part of Proposition 98's minimum spending guarantee. Read the complaint in California School Boards Association v. Cohen here.
Tuesday, September 22, 2015
Tuesday, September 8, 2015
The Education Law Center and ACLU of New Jersey issued this press release:
On September 1, several New Jersey students and their families filed a lawsuit challenging the NJ Department of Education’s (NJDOE) attempt to impose new exams and other fee-based tests as requirements for high school graduation without adopting new regulations as required by law.
The lawsuit, T.B., et al. v. NJ Department of Education, contends that NJDOE failed to follow existing regulations or propose new ones under the NJ Administrative Procedure Act (APA) when Commissioner of Education David Hespe announced that new graduation requirements would apply to this September’s incoming senior class.
Tuesday, June 23, 2015
Last weekend, Texas Gov. Greg Abbott signed legislation ending Texas' criminal penalties for the "failure to attend school" law. The controversial law made Texas one of two states that prosecuted schoolchildren (and their parents) when students skipped school or class without a valid excuse. Last year, for example, Texas reportedly prosecuted 100,000 children and their parents for truancy. Now, instead of treating truancy as a Class C misdemeanor, the new law requires schools to address students’ truancy problems, such as homelessness, illness, or other difficulties, before referring students to court. Additionally, truancy matters will now be referred to civil rather than criminal court. With a coalition led by legislators and Texas Appleseed, H.B. 2398 received broad-based support from Texas Association of School Boards, the Texas Association of Business, the Juvenile Justice Association of Texas, Texas Justices of the Peace & Constables Association, and the Texas PTA. Texas was under investigation by the Department of Justice for the truancy law this spring, and a class action suit was filed challenging the law. Read more about the bill at the Courthouse News Service here and H.B. 2398 here.
Tuesday, April 7, 2015
In 2008 fifteen-year-old Abel Limones collapsed in the middle of a high school soccer game. When he was unable to get up, Thomas Busatta, his coach, ran onto the field to check on Abel. Within a few minutes Abel had lost consciousness and appeared to have stopped breathing. Busatta, who was trained and certified in the use of automated external defibrillators (AEDs), called for an AED. There was an AED in the game facility at one end of the field, however it was never brought to Busatta. EMS responders brought their own AED and were only able to revive Abel almost half an hour after his initial collapse. Due to the delay and a lack of oxygen, Abel suffered severe brain injury, placing him "in a nearly persistent vegetative state that will require full-time care for the remainder of his life."
Tuesday, March 3, 2015
Most people are hearing about the Alabama Supreme Court for a different reason this week, but the court also upheld the constitutionality of the state's tax credit law for school scholarships yesterday. The state supreme court rejected a challenges to the bill's constitutionality on the grounds that the law diverted public funds for private education, put more than one subject in a bill, and cost $40 million in annual tax credits. A state judge struck down the Alabama Accountability Act as unconstitutional last spring. The law, called the Alabama Accountability Act, gives tax credits for parents who move their children from failing public schools to private schools. The law's reality as we posted here, is that tax credits do not benefit students in "failing" schools when they have no access to alternative non-failing public schools or private schools in their area. Thus, according to the Alabama Revenue Department, fewer than 100 students in failing schools statewide used the credits to transfer to private schools, despite there being 78 schools on the failing schools list. Read the court's recent opinion here.
Friday, February 6, 2015
Indiana Supreme Court Finds that State Civil Rights Commission Lacked Authority to Act in Discrimination Claim Against Homeschooling Association
In a dispute the Indiana Supreme Court characterized as "an intra-group squabble over the type of meal to be served to a member family's child" at a dinner-dance social, the court found that the Indiana Civil Rights Commission lacked statutory authority to act because the complained-of behavior was not "an incident not related to education." The Fishers Adolescent Catholic Enrichment Society, Inc. (FACES) is a group of families who associated together “to provide homeschool high schoolers with Catholic educational, spiritual, and social enrichment.” The claimant, Elizabeth Bridgewater, charged that FACES discriminated against her daughter in 2008 by resisting the family's efforts at a FACES function to arrange a special meal that would not activate the child's allergies. Bridgewater filed a complaint with the Indiana Civil Rights Commission, alleging that FACES refused her daughter a reasonable accommodation and therefore discriminated against her due to her disability. While the complaint was pending, Bridgewater ordered a special dinner for her daughter for the event by contacting the host facility directly. The daughter attended the dinner without incident, however, she was expelled from FACES four days later. Bridgewater then filed a second complaint with the Commission. An administrative law judge found for the Bridgewaters and awarded $5,000 in damages, a finding that the Commission later adopted. On appeal, the Indiana Supreme Court found that the state's civil rights statute conditions the Commission's authority "to incidents where a person has “engaged in an unlawful discriminatory practice" and that FACES' activities were social rather than educational in nature. The court also rejected the Bridgewaters' retaliatory discrimination claims, again finding that any unlawful discriminatory practice that the Commission addresses must be related to education (under this case's facts.) The case prompted a dissent by three members of the court, who wrote that the retaliation claim was not "derivative of and thus depend[ent] upon the disposition of the discrimination claim." There was an arguable connection to education in the case, the dissent noted, as FACES conducted classes and helped the students' participation in educational activities outside of the home. Further, the dissent pointed out, the court's decision conflicted with how discrimination is defined federally, which "includes retaliation as a separate act of discrimination regardless of the outcome on the merits of the underlying complaint." The case is Fishers Adolescent Catholic Enrichment Soc'y, Inc. v. Bridgewater ex rel. Bridgewater, No. 93S02-1310-EX-704, 2015 WL 70285, at *4 (Ind. Jan. 6, 2015).
Wednesday, February 4, 2015
California Department of Education Prohibits Public Schools from Requiring Parents to Volunteer Service
In November, Derek posted How Charter Schools Charge for Access, a report challenging some California charter schools' requiring parents to work "service hours" to support their children's schools. The report was written by the Public Advocates, a nonprofit law firm and advocacy organization that addresses education, housing and transit equity. Recently, the Public Advocates updated us that the California Department of Education (CDE) advised charter schools and school districts on last week that the law prohibits charters from requiring parents to donate “service hours” to a public school. According to a media release, the CDE issued the new guidance less than two months after the Public Advocates report. “We are pleased by the CDE’s quick action,” said John Affeldt, Public Advocates Managing Attorney. The guidance states clearly that California law “bars a school district or school from requiring ‘volunteer hours’ as a condition [for] admission, enrollment…[or] participation in educational activities.” The guidance also clarifies that public schools may not employ cash payments or fee waivers (e.g., indigency waivers) as ways to satisfy volunteer hours requirements. Read more here.
Tuesday, December 9, 2014
An Arizona school district joins Texas and Ohio in facing content-based challenges to school textbooks that Derek has discussed on this blog here and here. Arizona’s Gilbert Public Schools Governing Board has announced that it will delay deciding how to redact references to abortion in several of its textbooks, including a biology textbook used in the district’s honors classes. The Board members reportedly disagree about how to comply with an Arizona law that prohibits schools from presenting any information about elective abortion “that does not give preference, encouragement and support to childbirth and adoption as preferred options” (A.R.S. 15-115). The board voted 3-2 at an Oct. 28 meeting to redact pages from its textbooks given to students that do not offer childbirth and adoption as preferred options to elective abortions. Late in November, however, some board members challenged whether A.R.S. 15-115 requires that all abortion references be removed (including terms such as “spontaneous abortion,” an alternate term for a miscarriage), or simply those that discuss elective abortions. Gilbert’s District Superintendent Christina Kishimoto has said that schools can keep the textbooks intact and still comply with the statute by offering instruction on abortion alternatives. The school board’s decision has attracted national media interest, including a coverage by the New York Times and MSNBC’s Rachel Maddow show.
Friday, December 5, 2014
Two years after the Tucson Unified School District (TUSD) ended its old Mexican-American Studies (MAS) curriculum, the district continues to be pulled between Arizona politicians’ disapproval of ethnic studies classes and TUSD’s efforts to show remedial progress in the federal desegregation case brought against the district in 1974. Arizona education officials increased the pressure on TUSD this Tuesday making a surprise visit to an ethnic studies class to determine if the district is violating a state law that prohibits any class that promotes “the overthrow of the United States government,” racial resentment, and “ethnic solidarity instead of the treatment of pupils as individuals” (HB 2281). After HB 2281 was passed and the state threatened to withhold ten percent of the district's funding, TUSD closed down the MAS program in 2012. TUSD’s school board subsequently began offering ethnic studies courses after a federal court ordered the district to develop a culturally responsive curriculum as a part of its remedial action in Fisher and Mendoza v. TUSD, the federal court desegregation case.
The state officials’ compliance visit was reportedly prompted by comments that a TUSD high school principal made at the National Association of Multicultural Educators that the district was once again offering culturally responsive classes. The Arizona education department wrote TUSD in late November, asking the district to turn over all assessments, assignments, lesson plans, student work, and materials used in classes that have a “culturally relevant” focus.
Coincidentally, the officials’ visit comes on the heels of a new study linking the MAS program to higher student achievement. The study, Missing the (Student Achievement) Forest for All the (Political) Trees: Empiricism and the Mexican American Studies Controversy in Tucson, links the defunct MAS program with increased graduation rates and standardized-testing results for students who participated in the program from 2006 to April 2012. The study by Nolan L. Cabrera, Jeffrey F. Milem, Ozan Jaquette, and Ronald W. Marx (Arizona) is available in the American Educational Research Journal here.
Meanwhile, Arizona seeks to intervene in the desegregation case in Fisher, arguing that the state has an interest in ensuring that TUSD’s current ethnic studies classes do not “foster resegregation along ethnic and racial lines.” A Ninth Circuit Court of Appeals panel heard Arizona’s request to intervene in Fisher this November. Counsel for the Department of Justice opposes Arizona’s intervention, arguing to the Ninth Circuit panel that “Arizona has no ‘protectable interest in this suit’” because the MAS program was ended. The video of Arizona’s oral argument before the Ninth Circuit in November is here. The Ninth Circuit is scheduled to hear oral arguments in the main case in January.
Wednesday, November 26, 2014
The Indiana Supreme Court heard arguments Monday in a class-action lawsuit alleging that a school corporation's decision to end free school bus transportation violated the state constitution's education clause. The state supreme court is reviewing the court of appeals' decision in Hoagland v. Franklin Twp. Cmty. Sch. Corp., holding that transportation to and from school is an integral "part of a uniform system of public education" under the Indiana Constitution. The court of appeals found that the school corporation, Franklin Township, acted unconstititionally in discontinuing its free school bus service and in contracting with a third party provider that required students to pay for transportation. The appellate court also noted that school corporations are obligated to provide free transportation for students with disabilities, homeless students, and students in foster care. The court of appeals saw no rationale to exclude any other student who needed transportation to school, even if the student was not in one of the mandatory transportation categories. The Indiana Supreme Court has held that a school corporation could not impose a student-services fee that included payment for school counselors, nurses, and security, because those services were part of a publicly-funded education. Nagy v. Evansville–Vanderburgh School Corp., 844 N.E.2d 481 (Ind. 2006). Franklin Township Community School Corporation cut its bus service after Indiana's public schools lost hundreds of millions of dollars when new property-tax caps went into effect in 2010. The Township later contracted with an educational service center to provide student transportation for an annual fee. The case set for argument is Hoagland v. Franklin Twp. Cmty. Sch. Corp., No. 49A02-1301-PL-44, 2014 WL 2580663 (Ind. Ct. App. June 10, 2014), transfer granted, opinion vacated, 2014 WL 5312934 (Ind. Oct. 16, 2014). Watch the oral argument online here.
Thursday, October 30, 2014
On Monday, the N.M. Court of Appeals upheld the constitutionality of a law requiring the state to provide instructional materials to schools, including private ones. A group of plaintiffs sued the the N.M. Public Education Department and challenged New Mexico's Instructional Material Law that requires the state education department to buy and distribute instructional material to schools "as agents for the benefit of eligible students." NMSA 1978, §§ 22-15-1 to -14. The plaintiffs argued that the law conflicted with several articles of the New Mexico Constitution, including the state's counterpart to the Free Exercise and Establishment Clauses, articles prohibiting the state from investing in private corporations and granting the state exclusive control over education. Finding for the state education department, the Court of Appeals held that "the mere indirect or incidental benefit to the private schools" did not violate the state constitution. The court interpreted the state constitution's prohibition against public funding of "sectarian, denominational or private" schools to have intended only to maintain state control of public schools and keep public schools from becoming sectarian. In rejecting the plaintiffs' arguments based on cases from the U.S. Supreme Court and other states, the New Mexico court stated, "We believe that the legislative intent in promoting the education of all schoolchildren in New Mexico deserves greater weight than the cases cited by Plaintiffs afford." Moreover, the court noted, the books are not given to private schools, but the schools only receive possession of the books as agents for the students. Read Moses, et al., v. Skandera, Acting Sec'y of Education, No. 33,002 (N.M. App. Oct. 27, 2014) here.
Wednesday, September 24, 2014
Litigants have filed another challenge to the Common Core, this time in Missouri. The theory there is particularly unique. They charge that state funding of the consortium that is developing Common Core standards and assessments amounts to an "illegal interstate compact" and cedes state sovereignty over education to the consortium. They also charge that the U.S. Department of Education has illegally funded the consortium: $360 million to Smarter Balanced and the Partnership for Assessment of Readiness for College and Careers (PARCC), which are developing the standards. The lawsuit alleges this funding was not authorized by Congress.
I have not investigated this latter claim, but am skeptical, given that the funds flowed through the American Recovery and Reinvestment Act, which gave the U.S. Department of Education significant discretion in awarding grants to promote education innovation. That level of funding to Common Core developers, however, would give added support to the argument that the college and career readiness requirements in Race to the Top and No Child Left Behind Waivers were de facto requirements that states adopt the Common Core. In other words, the Department funded a private group to develop standards and then required states to adopt standards that could be found in only one place: the place that the Department funded.
More on this argument here.
Wednesday, September 17, 2014
Following up on Derek's post, Washington Supreme Court Turns Up Heat on State Legislature in School Funding Case, last week Washington's high court found the legislature in contempt as some predicted after oral arguments in the case. The Washington Supreme Court's ruling in McCleary, et al. v. State of Washington, comes during a tumultuous year for the legislature on school funding issues. This spring Gov. Jay Insbee blamed the legislature for Washington becoming the first state to have its NCLB waiver revoked this spring, the state supreme court ruled in January (in this case) that the state's education funding system was unconstitutional, and the state faces a $1 billion education budget shortfall. In McCleary, the court indicated it has grown tired of legislative delays in complying with the court's January order to fully fund basic education by the 2017-18 school year. The court wrote last week that it was not issuing the order simply to get the legislature's attention. Instead, "contempt is the means by which a court enforces compliance with its lawful orders when they are not followed," the court wrote. Read the court's order in McCleary, et al. v. State of Washington here.
Tuesday, September 2, 2014
New Hampshire Supreme Court Reinstates Tuition Tax Credit Program But Avoids Law’s Constitutionality
A unanimous New Hampshire Supreme Court rejected a challenge last week to the state’s tuition tax credit law but side-stepped the issue of its constitutionality. The state supreme court dismissed Duncan v. State of New Hampshire on standing grounds, holding that a recent amendment to the law allowing taxpayer standing was insufficient to confer standing under the state constitution. While New Hampshire’s constitution does not have a corresponding provision to the federal constitution’s Article III standing clause, the court interpreted a provision authorizing the supreme court to rule upon “upon important questions of law and upon solemn occasions” to prohibit issuing advisory opinions to private persons. The N.H. Supreme Court’s ruling reinstates a law allowing businesses to receive an 85 percent tax credit when they donate to private scholarship organizations for students who attend private school, homeschool or an out-of-district public school. A lower court ruled last year that the tax credit program unconstitutionally sent public tax dollars to private religious schools. Right now, the tax credit program is so small that it may be difficult to demonstrate harm in a future legal challenge, Bill Duncan, state Board of Education member and lead plaintiff, told NPR. The state’s first scholarship program raised $250,000 dollars for scholarships in 2013, but $50,000 this year, albeit in the shadow of the lower-court ruling. The state program would allow up to to $5.1 million in tax credits to be claimed this year. Read Duncan v. State of New Hampshire here.
Tuesday, August 12, 2014
New York State Department of Education just released "Parents' Bill of Rights for Data Privacy and Security." It is based on the U.S. Department of Education's "Model Notification of Rights." In essence, it is a reiteration of the rights contained in the Family Educational Rights and Privacy Act. The document, however, came with a certain amount of fanfare given the recent concerns over data privacy. The reiterated rights include the right to
- inspect and review a student's records
- request corrections of inaccurate information in the records
- prevent disclosure of personal records to third parties
- refuse to let the school include a student in it directories
- file a complaint with the U.S. Department of Education for violations of the Act
At the risk of sounding grumpy, it strikes me as preposterous to use the term "Bill of Rights" in regard to this document, even though it is qualified by "Privacy." As a basic descriptive term, bill of rights is fitting enough, but "Bill of Rights" is rarely invoked descriptively. Most often, it is used to liken a document to the broad, fundamental rights included in the first eight amendments of the U.S. Constitution. In that respect, it is meant to declare something monumental.