Thursday, March 14, 2019
Maryland and New Hampshire Plaintiffs File School Funding Lawsuits within One Week of Each Other, What Gives?
For the second time in a week, plaintiffs have filed major school funding lawsuits. A few days ago, plaintiffs in Baltimore filed a lawsuit against the state, claiming that the state was way out of compliance with the terms of its previously agreed upon settlement and funding formula. Data indicates Baltimore schools are underfunded by about $300 million. Yesterday, plaintiffs in New Hampshire filed their own, claiming that the state's school funding formula grossly miscalculates the cost of providing an adequate education. The formula entirely excludes some costs and underestimates several core ones like teacher salaries and facilities.
These cases are also of particular interest not just because of their timing, but because they come in states with relatively high funding levels. Both rank around 11th or 12th in terms of their funding levels. New Hampshire also has relatively few low-income students, meaning that education needs and costs would presumably be lower than the average state. None of this is to suggest the claims lack merit. Baltimore city schools educate large percentages of low income students. Even if Maryland's statewide funding levels look impressive, they are largely irrelevant to Baltimore. And a school funding formula that is regressive in terms of district poverty levels will create huge disadvantages in Baltimore. Bruce Baker estimates that Maryland's highest poverty school districts require about $22,000 per pupil to achieve average academic outcomes, but only have about $15,000. Similar funding appears more than sufficient in the rest of the state's school districts. In other words, average funding in Maryland masks a huge problem in Baltimore.
Tuesday, March 12, 2019
Monday, March 11, 2019
Ensuring Racial Equality – from Classrooms to Bathrooms – Depends on Federal Regulations Trump Wants to Roll Back
When the government runs or funds programs, those programs are obligated to ensure that everyone gets equal access and treatment. This duty comes from something called “disparate impact regulations.” These regulations require the programs to pay careful attention to whether their policies cause racial disparities.
From my perspective as a scholar of discrimination law, abandoning these regulations would be a major departure from the federal government’s mission since the 1960s of ensuring racial equality.
Friday, March 8, 2019
For the second time this school year, Betsy DeVos got a judicial smack down for attempting to eliminate regulations from the prior administration. In September, it was over protections for student loan borrowers. Yesterday, it was over racial disparities in special education.
In both cases, DeVos’s justifications for reversing Obama-era regulations amounted to little more than "I'm in power now and I don’t like Obama’s regulations.” The dressed up justification has been that the Department needs to pause the regulations so that it can “study” the issues more.
The problem, the federal courts have told the Department, is that it cannot just scrap regulations because it doesn’t like them, particularly when those regulations have already gone through a rigorous process of notice, comment, study, and justification. Reversing existing regulations requires a showing that the existing regulations are wrong. That requires evidence and logic—something that does not seem to interest the current administration.
Thursday, March 7, 2019
While critics charge that charter schools are siphoning money away from public schools, a more fundamental issue frequently flies under the radar: the questionable business practices that allow people who own and run charter schools to make large profits.
Given that charter schools are growing rapidly – from 1 million students in 2006 to more than 3.1 million students attending approximately 7,000 charter schools now – shining a light on these practices can’t come too soon. The first challenge, however, is simply understanding the complex space in which charters operate – somewhere between public and private.
Tuesday, December 18, 2018
This from the Education Law Center:
Students in Flint, Michigan, are beginning to receive high quality screenings and evaluations through the Flint Registry and Genesee Health System/Hurley Children’s Hospital Neurodevelopmental Center of Excellence (NCE) to identify disabilities that may entitle them to special education services. The screening and evaluation program is the key component of an April 2018 settlement agreement reached in D.R. v. Michigan Department of Education, a class action lawsuit to enforce the rights of Flint children impacted by the lead crisis under federal and state special education law.
The Flint students are represented by Education Law Center, the ACLU of Michigan and White & Case LLP. The defendants in the lawsuit are the Michigan Department of Education, the Genesee Intermediate School District and the Flint Community Schools (FCS).
The partial settlement agreement resolved the lawsuit’s “child find” claims challenging the defendants’ failure to appropriately identify and evaluate Flint students with disabilities. Key commitments contained in the settlement agreement included over $4 million provided by the State of Michigan to get the screening and evaluation program up and running.
Thursday, December 13, 2018
In a short one-pager, the New Jersey Supreme Court just ended the litigation war on teachers tenure in the state. By my count, this marks at least the fourth major loss for those using the courts to pursue their anti-teacher tenure agenda. And they have still yet to win a single case before a high court. What started as a big splash in California in Vergara--and rippled into places like Minnesota, New York, and New Jersey--has turned into a frivolous theory that is now sinking like a rock to the bottom of the ocean, likely to never be seen again. As I pointed out more than three years ago in The Constitutional Challenge to Teacher Tenure, the evidence simply did not support their claims.
Here's the Education Law Center's take on the New Jersey decision:
Tuesday, December 11, 2018
A new fight to secure a federal constitutional right to education is spreading across the country. This fight has been a long time coming and is now suddenly at full steam.
In 1973, plaintiffs in San Antonio Independent School District v. Rodriguez argued that school funding inequities violated the right to education. The Supreme Court rejected education as a fundamental right under the federal Constitution, leaving funding inequalities in Texas and elsewhere completely untouched. For more than 40 years, no one even dared to directly challenge Rodriguez’s conclusion in court. Now, in just two years, four different legal teams and plaintiff groups have done just that. But this time, they are shifting their arguments away from just claims about money. They are focusing on educational quality, literacy and learning outcomes.
The boldest claim was filed on Nov. 29 in Rhode Island, arguing for an education that prepares students for citizenship – an argument that draws directly on my own legal research and expertise as a scholar of education law.
Monday, December 10, 2018
In October, I had the privilege of participating in a Tedx event sponsored by the University of South Carolina. The subject of my talk was the danger our democracy faces when we fail to ensure equal and adequate public education. I offered warnings and lessons from both the perspective of our nation’s founders and those who rebuilt our nation in the period following the Civil War. The number of parallels between the post-Civil War period and today are striking, particularly the advent of new technology—the penny press newspapers then and the 24-hour news cycle and blogs today. The challenge today is use yesterday’s lessons to solve today’s problems in school funding, critical literacy, and democratic participation. The following is a couple of highlights from the talk:
Friday, December 7, 2018
This from the Education Law Center:
Education Law Center is urging the New Jersey Department of Education (NJDOE) to take immediate steps to reverse course from a decade of explosive and improper growth of charter school enrollment, targeted in the state’s high poverty, racially isolated school districts.
“In allowing charter schools, the Legislature wanted to encourage local stakeholders to pilot innovative practices on a school-by-school basis to improve education for all students in districts served by charter schools,” said David Sciarra, ELC Executive Director. “Over the last decade, the State has facilitated the rapid expansion of charter school networks designed to compete with, and replace, district public schools altogether, in direct violation of constitutional mandates and the Legislature’s intent.”
ELC’s recommendations to address the problems in New Jersey’s charter school program are detailed in written comments submitted to the NJDOE. Governor Phil Murphy’s administration is undertaking a thorough review of implementation of the 1995 charter school law.
Thursday, October 25, 2018
Organisation for Economic Co-operation and Development just released its report on education equity and mobility. The results for the United States aren’t pretty. For those unfamiliar, the report analyzes massive amount of data and makes international comparisons. The organization is comprised of representatives from 36 different member countries.
As to the United States, these two findings struck me as particularly poignant:
- Some 51% of disadvantaged students in the United States attend disadvantaged schools, i.e. schools where other students tend to be disadvantaged as well (OECD: 48%; in Finland, only 40% of disadvantaged students attend such schools). However, where disadvantaged students attend advantaged schools, they score 41 points higher, or the equivalent of almost one-and-a-half years of school, than those attending disadvantaged schools (OECD average: 78 points higher; among OECD countries with above-average performance, no performance difference is observed between the two groups of students in Finland, Norway and Poland; Figure 1.1).
- Disparities in student performance related to socio-economic status take root at an early age and widen throughout students’ lives. In the United States, the magnitude of the socioeconomic gap in mathematics achievement at age 10 (as measured by the Trends in International Mathematics and Science Study [TIMSS]) is about 74% as large as the gap observed among 15-year-olds (as measured by PISA), and about 73% as large as the gap in numeracy proficiency among 25-29 year-olds (as measured by the Survey of Adult Skills [PIAAC]; Figure 1.1).
Education advocates have struggled to force Virginia to live up to its constitutional duties. And as a result, the state has had carte blanche to mistreat its public schools. It is little surprise that the most recent School Funding Fairness Report rates Virginia’s school funding as an “F” in terms of directing funds to needy students. And while it is a relatively wealthy state, its overall spending levels are relatively low. The tide may very well turn soon. But first, a little background is in order.
Virginia’s constitution includes one of the strongest endorsements of public education you can find. It provides that the “General Assembly shall provide for a system of free public elementary and secondary schools for all children of school age throughout the Commonwealth.” In other words, the public education system is non-negotiable. There is a constitutional duty to provide it. In addition, that same section of the constitution provides that the “educational program of high quality [should be] established and continually maintained.” The constitution gets even more specific, stating that the State Board of Education “shall . . . prescribe[e]” the “standards of quality for the several school divisions.” Thus, the constitution says the precise definition is not to be left to chance. It is the Board’s duty to prescribe these high quality standards.
But some would argue there is a catch. That constitution says General Assembly “shall seek to ensure” the education program and “determine the manner” in which it will fund the schools, which leaves the General Assembly some discretion. In Scott v. Commonwealth, plaintiffs sought to test out these education clauses and challenge unequal funding in the state. The Virginia Supreme Court rejected the challenge, holding that the constitution does not guarantee “equal” or “substantially equal” school funding. That decision has scared advocates away ever since.
Tuesday, October 23, 2018
If you were trying to make a buck on the side and were pretty sure that some new or improved technology would drastically undercut the market for cell phones within five years, would you invest in Apple stock or look for other opportunities? Well, that is the type of information I have for the Koch Brothers and Devos families of the world. Invest your money elsewhere. Vacate the Secretary of Education’s office. The days of charter and voucher growth are numbered. And regulation is coming to those charters and vouchers already in place.
Why am I suddenly confident, rather than nervous, about charters and vouchers? I got the chance to meet and listen to teachers from across the country at the Network for Public Education’s annual conference in Indianapolis this past weekend. For the first time in my professional career, I had a firm sense of public education’s future. I have litigated and participated in several civil rights and school funding cases, dealt with lots of different advocates, and watched closely as the teacher protests unfolded this spring. In Indianapolis, I saw something special—something I had never seen before.
I saw a broad based education movement led not by elites, scholars, or politicians, but everyday people. Those everyday people were teachers who were not just from big cities, small cities, suburbs, or the countryside, but from all of those places and as diverse as America’s fifty states and ten thousand school districts. The teachers weren’t just young or old, white, black or brown, men or women, straight or gay. They were all of the above.
Education law job opportunities at places like the NAACP LDF, MALDEF, the Lawyers' Committee and the Southern Poverty Law Center don't come around that often. The same is true of the Education Law Center, the nation's premier education funding and quality organization. Yesterday, I received notice that the Education Law Center is hiring a staff attorney. Below is the posting:
Tuesday, October 16, 2018
A decade ago, I founded the Education Rights Center at Howard University School of Law. One of my driving motivations was the notion that everyday people needed basic information about their schools and rights. There was a plethora of data embedded in databases and spreadsheets, and there was a ton of great social science research out there reaching conclusions about that data. It seemed to me that the best entity to make sense of all of this was the U.S. Department of Education. After all, the vast majority of this data is compiled and managed by the Department. And a great deal of the research was either funded by the Department or housed in its clearinghouse website.
It was also my sense that the Department did next to nothing to be of help to everyday folks. Only sophisticated researchers could do anything with the data. For those who haven't waded into the Department's databases, it suffices to say that the data is "raw." Simply looking at that data tells you next to nothing, unless you are just wondering how many students go to a particular school, how many teachers the school has, how many minority students attend the school. That information, however, is practically meaningless. It only has meaning when you place it in context. For instance, you know elementary school X has 542 students, but what is the average size of an elementary school? The website won't tell you. So what do you really know about the school. Similarly, you know how many minority students attend the school, but what is the percentage of minority students in the school? It won't tell you that either. You have to calculate the percentage yourself by combining the raw data.
I could go on, but the point is that the Department wasn't telling parents and students things they might want or need to know, particularly if they thought something was wrong with their school or they were just curious. I quite simply thought it a disgrace that our Department of Education couldn't put its vast resources to work to make its data somewhat helpful for everyday people. If it did that, it might put folks in a better position to protect their own rights.
Monday, October 8, 2018
In my last article, The Constitutional Compromise to Guarantee Education, I examined the period immediately leading up to and following the Fourteenth Amendment and found that the ratification of the 14th Amendment and southern state's education clauses in the constitutions were inextricably intertwined. Quite simply, rewriting their constitutions and providing for public education was a condition of readmission to the Union, as was the ratification of the 14th Amendment. In other words, without constitutional guarantees of education, southern states never reenter the Union. And without southern votes for the 14th Amendment, the amendment never becomes part of the constitution. Thus, I argue that one cannot understand the rights of state citizenship that the 14th Amendment secured, nor the meaning of a republican form of government, without examining those state constitutions.
Thursday, October 4, 2018
Connecticut Federal District Court Rejects a Fundamental Right to Education, But Offers Interesting Analysis for Future Claims
This summer, a federal district court decision in Michigan dealing with the fundamental right to education and literacy grabbed national news for more than a week. Onlookers were seemingly shocked at how bad educational opportunities are in places like Detroit and that a federal district court would hold that there is no right to literacy.
A somewhat related case in Connecticut has gone almost entirely unnoticed. Last week, a federal judge reached almost the same exact conclusions as the judge in Michigan. The Connecticut judge held there was no federal fundamental right to education. The Supreme Court had foreclosed such a right in San Antonio v. Rodriguez, reasoned the judge. But plaintiffs had argued that San Antonio had left open the possibility of a right to a minimally adequate education. The district court responded:
In Rodriguez, the Supreme Court did not leave the door open for federal courts to recognize a fundamental right to a minimally adequate education. To the contrary, the Court rejected the idea of a fundamental right to education, without parsing how effective or adequate the education might be, because such a right is not guaranteed in the Constitution. Moreover, in Plyler, the Court cited Rodriguez’s holding for that proposition.
On that score, I think the court is wrong and conflating the distinction between a fundamental right to education and a fundamental right to a minimally adequate education. A minimally adequate education raises a host of different questions and rationales. The district court did not address them. Scholars, however, have, and no Supreme Court cases has rejected those possibilities. To the contrary, it has left them open. My recent work, in painstaking detail, lays out the historical basis for recognizing such a right or something similar to it. But I warned that if the best argument plaintiffs had in these cases was "Rodriguez leaves open the issue," they would be in trouble. They need an affirmative explanation for courts to go out on a limb. I believe I offer that affirmative explanation. But that is another story.
Tuesday, October 2, 2018
After years of stalled progress, underway in North Carolina aimed at moving the State to fulfill its constitutional duty to adequately fund public education. In response to a joint request by the parties in the landmark Leandro v. State litigation, Superior Court Judge David Lee has ordered WestEd, an independent consultant, to conduct an in-depth study and make recommendations to remedy the constitutional violations found in the Leandro case through the provision of constitutionally adequate resources for all North Carolina public schools.
In 1994, parents, students and school districts in low-wealth rural counties filed Leandro v. State, alleging students in these counties were being denied their right to an adequate education under the North Carolina constitution. In 1997, the North Carolina Supreme Court permitted the case to proceed to trial, declaring that all students in the state are entitled to "the opportunity to receive a sound basic education." After trial, the lower court found in 2002 a violation of the students' right to a sound basic education and ordered the State to remedy the violation by providing:
Monday, October 1, 2018
A dispute over the pledge of allegiance in a Texas High School is shaping up to be very interesting, mainly because of the strange position the state's Attorney General is taking in support of the school district. A slip opinion from the federal district court offers this summary of the facts:
India Landry is an African American student who attended Windfern High School (“Windfern”) in the Cypress Fairbanks Independent School District (“Cy Fair ISD”). . . . Windfern is a “Campus of Choice,” which Cy Fair ISD students may attend upon application and the recommendation of the home campus assistant principal and counselor. At other schools in Cy Fair ISD, India had sat for the Pledge of Allegiance (the “Pledge”) “around 200 times.”
During the spring of 2017, India’s English teacher, Jamie Johnson, told her to leave the classroom on five separate occasions because she sat for the Pledge. Also that spring, India’s Street Law teacher, Mary James, told India that it was disrespectful to this country to sit for the Pledge. The day after Ms. James admonished India for sitting for the Pledge, Ms. James sent India and another African American student to Principal Martha Strother’s office because they were sitting for the Pledge. Principal Strother is the designated authority to handle student behavior at Windfern. Principal Strother told the two students they had to stand for the Pledge.
On October 2, 2017, India was in Principal Strother’s office when the Pledge was recited. India remained seated. In response, Principal Strother “immediately expelled India from school” by saying, “Well you’re kicked outta here.” Assistant Principal Penny Irwin-Fitt called India’s mother, Kizzy Landry, and gave her five minutes to pick up India or the police would escort India from school. While India waited, administrators made hostile remarks to her. Ms. Fitt said India would stand for the Pledge like the other African American student in her class. The secretary, Karen Walters, said, “This is not the NFL.”
. . . .
On October 5, 2017, India and Kizzy Landry met with Principal Strother. Principal Strother stated that sitting was disrespectful and would not be allowed, and that India must stand for the Pledge to be permitted to return to Windfern. Principal Strother suggested that, instead of sitting, India could write about justice and African Americans being killed.
. . . .
Regarding the Pledge, the Cy Fair ISD handbook states: "Pledge of Allegiance and a Minute of Silence Texas law requires (Texas Education Law Section 25.082) students to recite the Pledge of Allegiance to the United States flag and the Pledge of Allegiance to the Texas flag each day. Parents may submit a written request to the principal to excuse their child from reciting a pledge."
Wednesday, September 26, 2018
The Far Broader Implications of the Court Opinion That Struck Down DeVos's Approach to Student Loans
In case you missed it, Betsy DeVos recently got a judicial smack down in the battle over student protections in loan repayment. I won't rehash the merits of the competing student loan policies here. You can find that elsewhere. But it is worth emphasizing exactly why DeVos lost and its implications for other administrative actions. Those two things are extremely important in thinking about the future of the broader landscape of education policy.
The short story is that when an agency seeks to reverse or block an existing or pending regulation, it needs to either go through the normal process of passing new regulations (which takes a while) or, in the case of stopping pending regulations, offer a legitimate explanation. DeVos's action on student loan regulations failed because the Department did not explain itself in any rational way. Rather, it seemed to use a lawsuit by a group of colleges as an excuse to simply do what it wanted to do--exercise raw power in favor of a particular policy agenda. That, the court demonstrated, you cannot do.
Second, the court offered an interesting analysis of how a 180 degree reversal of policy requires a little something extra. The court's analysis was compelling. It is fine for an agency to enforce the law within the bounds of its discretion. But when it completely reverses a policy position, it begs the question of whether one of the two agency interpretation is simply wrong. The public deserves a reasoned explanation of why the prior one was wrong. Again, it is not enough to simply say: "I'm in power now." This analysis, in particular, strikes me as being important to other policy fights to come, particularly since this Administration says it wants to entirely remake or end the federal role in education.
Okay, so enough on the commentary, what exactly did the court say? To appreciate the conversation, a little background is in order.