Friday, May 31, 2013

South Carolina considers joining trend of ending high school exit exams

State-High-School-Exit-ExamsThis week South Carolina considered joining the line of states that are phasing out exit exams as a requirement to graduate from high school. South Carolina was an early adopter of exit exam testing, but this week the state House of Representatives passed a bill to end the state's exit exam requirement. States adopted exit exams to measure student learning by linking high school graduation to performance on basic proficiency exams. Now 25 states are considering severing the ties between exit exams and high school graduation, as more data indicates that the exams have had little correlation with student achievement and may also disadvantage students with special needs. The legislatures of Alabama, Arizona, Georgia, and Nevada recently passed measures to end the use of exit exams as a requirement for high school graduation, although some states plan to continue using the tests as learning assessments. Valerie Strauss of the Washington Post makes a case against high-stakes standardized testing in Why schools should stop using exit exams; USA Today reports on the exit exam trend in Exit exams may be on their way out. For more information, click the right graphic to see George Washington University's Sept. 2012 report, State High School Exit Exams: A Policy in Transition.


May 31, 2013 in State law developments | Permalink | Comments (0)

Call for Special Education Papers

The Fordham Urban Law Journal is soliciting articles for its upcoming special issue: New IDEAs: How to Adequately Educate Urban Schoolchildren with Disabilities.  This issue of the Journal will address many of the shortfalls of the IDEA, as well as possible legal remedies or reforms that will help to support the IDEA’s goals.  The journal is particularly interested in including articles that address, critique, or voice concerns over how the IDEA is currently applied in urban schools and articles that propose reforms or remedies so that urban school children will have an appropriate education, including: Funding (for example, disparities in federal, state, and local funding; reimbursement to parents for accommodations); Implementation of the Act (for example, hiring or assessing qualified special education teachers, overly bureaucratic procedures,
or other administrative difficulties); Educational Quality between Districts, Cities, and  Socioeconomic Groups;  Judicial Review (for example, the requirement that parents must appeal to an administrative body first before they are given a right to appeal to a civil court); Early Identification and Intervention

If you are interested in submitting an article for publication, please submit a one-page proposal as soon as possible.  Articles will be selected on a rolling basis.  The Fordham Urban Law Journal requires articles to be between 10,000 and 25,000 words, including text and footnotes.

All inquiries and proposals should be submitted via email to


May 31, 2013 in Conferences, Scholarship, Special Education | Permalink | Comments (0)

Thursday, May 30, 2013

Plaintiffs Lose School Funding Claim Before Colorado Supreme Court

On May 28, 2013, the Colorado Supreme Court issued its opinion in Lobato v. State.   Lobato involved a challenge to school inequities under Colorado's state constituion.  The Supreme Court rejected plaintiffs' claim and overturned a lower court ruling in their favor.  The court's opinion is unusual in that it held that the case was justiciable and that the state constitution imposed an adequacy standard on the state, but found that the state had met this standard.  Most courts rejecting school finance claims have done so by refusing to reach the factual merits, finding that separation of powers concerns or the lack of a manageable adequacy standard precluded an analysis of the facts, or the courts have applied a deferential rational basis standard.  Nothwithstanding extensive inequalities between school districts, the court focused on the fact that the state had a uniform funding formula in place. 

Also curious is how fast the court reached its decision.  The court heard arguments in early March and issued its 66 page opinion less than three months later.   Given that the case involved a 5 week trial, the speed of its opinion is remarkable. I can't recall any court in recent years issuing an opinion that quickly.  To the contrary, they often sit on them.  Some may recall that South Carolina's Supreme Court sat on its school funding case for so long (nearly 3 years I think) that it ordered reargument.  That argument was this past September and the court has yet to issue a decision.



May 30, 2013 in Cases, Equity in education, School Funding, State law developments | Permalink | Comments (0)

Tuesday, May 28, 2013

Representatives of Rural Districts Seek Equal Educational Funding

Members of Congress who represent rural areas want to remedy Title I funding disparities for rural schools, the Hill congressional newspaper reports. Title I money disproportionately goes to urban and affluent suburban areas and are not not responsive to the needs of rural areas, lawmakers argue. The Hill cites a study reporting that "the federal government provides almost twice as much money per disadvantaged student in Philadelphia, Pa., (population: 1.5 million) as in Philadelphia, Miss., (population: 7,500)." Lawmakers from rural districts plan to make funding disparity an issue if Congress takes up the overdue reauthorization of the Elementary and Secondary Education Act, which has stalled since the Senate passed the bill in 2011. Read more at the Hill.


May 28, 2013 in News | Permalink | Comments (0)

Thursday, May 23, 2013

Bold School Finance Inequity Solutions

Although I am quite sure I did not spur her, Cynthia Brown followed up my post on the U.S. Department of Education's Equity and Excellence Commission report with her own article in edweek.  She chides the report for pointing out problems in school finance, but offering no solutions.  Thus, in her article she offers three relatively simple, but bold, proposals.  First, she proposes eliminating the four federal funding formulas currently in place and replacing them with "one formula that better targets schools with high concentrations of students in poverty. This honors the law's intent of providing additional education resources for children with the greatest educational needs."  Second, she proposes closing inequities within individual school districts, most notably by no longer exempting teacher salaries from equity calculations, which allows all of the highest paid and most qualified teachers to teach at the same schools. Third and most boldly, she argues that "States should adopt a state-based system of school financing—one in which states provide all nonfederal resources for education, and districts no longer have the power to raise funds from local property taxes."  As my scholarship in the past has suggests (see here), I believe Brown is on the right track.  But I would reiterate my concern from yesterday that we not ignore segregation, as it is intertwined.  Moreover, if we are too agressive in attempting to offset the costs of concentrated poverty, we could financially incentivize further segregation and decentivize integration.


May 23, 2013 in Equity in education, Federal policy, School Funding | Permalink | Comments (0)

Recent scholarship

Legal scholarship on education law covers the waterfront this week. This week we note articles on affirmative action jurisprudence, income disparity in education, and that Brigham Young University's Education and Law Journal is out with several articles on education law and reform.

 New Fisher scholarship

Leslie Yalof (Pace Law School) has published The Inevitable Irrelevance Of Affirmative Action Jurisprudence, 39 J.C. & U.L. 1 (2013), excerpted below:

Fisher v. University of Texas presents an Equal Protection challenge to the University of Texas' race-preference admissions policy. In this article, I am proceeding on the assumption that, in its decision, the Court will not abolish affirmative action programs wholesale, if it addresses the merits of Abigail Fisher's challenge. ... Based on the existing precedent, the Court can decide the Fisher case in any of three ways. First, the Court could avail itself of the opportunity presented by Fisher to expand the constitutional permissiveness of considering race as a factor in admissions decisions. Given that four of the eight justices deciding this case have made clear their strong opposition to the use of race in this context, this scenario is highly unlikely. At the other end of the spectrum, the Court could find that there is no longer a compelling governmental interest in the use of race in the admissions process, thereby causing the sun to set on affirmative action admissions policies much sooner than Justice O'Connor predicted in her majority opinion in Grutter. This is an equally unlikely scenario because four of the Justices have already confirmed their commitment to the compelling governmental interest in using race-preference policies to achieve viewpoint diversity. The most likely outcome is that the Court will rule very narrowly, striking down the UT program as not being narrowly tailored, while leaving intact the Court's previously articulated finding of a compelling governmental interest in diversity education. Thus, colleges and universities will remain free to construct some type of race-preference admissions policy in an effort to ensure diversity among their classes. Despite the Court's commitment to upholding the narrow use of race in the admissions process, however, most institutions will be unable or, more likely, unwilling to construct constitutionally permissible race-preference admissions programs. ... For this reason, regardless of how the Court decides, Fisher will ultimately be inconsequential to school admissions decision-making and, therefore, will do little more than highlight the growing irrelevance of affirmative action jurisprudence.

In Race and Income Disparity: An Ideology-Neutral Approach to Reconciling Capitalism and Economic Justice, 3 Colum. J. Race & L. 49 (2013), Robert Hardaway (University of Denver, Sturm College of Law) examines the continuing problem of ideological battles between political groups and coalitions that have frustrated the quest for solutions to widening income and wealth disparities:

The fault for society's failure to adequately address income disparity along racial lines does not lie exclusively with any one political group or party. Both liberals and conservatives have permitted ideology to cloud their search for meaningful solutions. If these solutions are to be found, conservatives must discard ideological preconceptions in such areas as abortion rights, family planning, and drug policy; liberals must likewise discard ideology in their approach to tax policy, immigration, housing, and education. Both conservatives and liberals must discard ideological preconceptions and abandon politically seductive, but ultimately demagogic and self-defeating policies relating to international trade, and residential exclusionary policies, particularly in the areas of zoning.

In Misshaping the River: Proposition 209 and Lessons for the Fisher Case, 39 Journal of College and University Law 53 (2013), William C. Kidder relates five lessons for Fisher learned from California's affirmative action ban, Proposition 209. Kidder is the Assistant Executive Vice Chancellor at UC Riverside, but notes that the article expresses his personal views rather than the views of the University of California. Below is an excerpt of Misshaping the River:

California's experiences with and responses to Proposition 209 bear on the Fisher v. University of Texas at Austin case with respect to both questions of compelling interest and narrow tailoring. ... This article advances the following findings and conclusions:

Lesson #1--At the University of California, which is subject to an affirmative action ban, recent survey data from eight campuses confirms that the campus racial climate is significantly more inhospitable for African Americans and Latinos than at UT Austin and two other peer universities.... Relatedly, on the question of “critical mass” versus racial isolation that was discussed at length during the U.S. Supreme Court's oral argument in the Fisher case--and that was one key consideration taken into account by UT Austin in devising its admissions program--the comparative data in this article suggest that the threat of educational harm associated with racial isolation is very real (particularly for African Americans) and should not be minimized or overlooked.

Lesson #2--Contrary to recent claims by groups opposing affirmative action, Proposition 209 (“Prop 209”) triggered a series of educationally harmful “chilling effects.”

Lesson #3--Affirmative action critics supporting Petitioner are propagating two related myths about credentials and performance. First, they scapegoat affirmative action as the overwhelming cause of racial/ethnic differences in SAT scores at UT Austin and elsewhere, when this relationship is quite modest for reasons stemming from the mathematics of admissions. Secondly, the critics stubbornly insist that affirmative action causes substantial “mismatch” effects on underrepresented minority student performance when in fact there is a voluminous social science literature indicating that affirmative action at highly selective institutions has a net positive effect on graduation rates and other important outcomes.

Lesson #4--While some argue in favor of class-based affirmative action in lieu of race-conscious programs, UC's atypically large enrollment of low-income undergraduates is strong “natural experiment” evidence verifying that class-based policies are not effective substitutes for race-conscious policies.

Lesson # 5--The experience of: UC Business Schools and UC Law Schools after Proposition 209 provide compelling case studies regarding the need for race-conscious affirmative action.

Other articles this week address the future of legal education. While we would normally leave articles on the legal education debate to our colleagues at The Legal Whiteboard, we highlight a few this week that touch upon equity in education.

 Inequities and the future of legal education

Brian Tamanaha (Washington University Law) has posted The Failure of Crits and Leftist Law Professors to Defend Progressive Causes (Stanford Law & Policy Review, forthcoming) on SSRN.

In the article, Tamanaha confronts liberal legal academics for "perpetuating the profoundly warped and harmful economics of legal education" and encourages them to "take personal responsibility for what has happened, and to engage in collective action to do something to alter the economics of our operation."

 Responding to Tamanaha's Failing Law Schools book, Michael A. Olivas has written Ask Not for Whom the Law School Bell Tolls: Professor Tamanaha, Failing Law Schools, and (Mis)Diagnosing the Problem, 41 Wash. U. J.L. & Pol'y 101 (2013). Olivas "call[s] us to action as a community, for threats to the universe of legal education will affect us all to our collective detriment and to that of our students." Here is an excerpt of his abstract:

The real Cassandra, however, is Professor Brian Z. Tamanaha, whose apocalyptic book Failing Law Schools is a shrill call to arms, a substantial work of powerful charges and dire solutions, well-written and arriving at a crucial time in legal education, in the United States and worldwide. I believe he holds powerful diagnostic skills and has a storyteller's narrative, but I believe his solutions are substantially wide of the mark, and would violate the code that remedial actions should, at the least, do no harm. If he were simply overstating issues or being a provocateur for the sheer sake of being one, as other critics have done, I would simply let him stew in his own juices. But his devastating critique has a number of accurate observations, ones I share, so laying out his arguments and his critical architecture is necessary to see how the analytic second step--his remedies--can be so wrong. Indeed, rather than merely noting his architectural framework, I will note the arithmetic of his remedies, and attempt to show why he should receive only partial credit for his math homework.

In The Job Gap, the Money Gap, and the Responsibility of Legal Educators, 41 Wash. U. J.L. & Pol'y 1 (2013), Deborah Jones Merritt (Moritz College of Law, The Ohio State University) addresses economic reform in legal education:

Today's law school graduates face a grim prospect: more than half of them will not make a career practicing law. Some of those graduates will enjoy jobs in fields allied with law, but many will settle for work with little connection to the degree they earned. ... These trends generate two gaps. The first is between the number of students earning law degrees and the number of lawyering jobs available to them. The second is between the tuition that students pay and the early-career salaries they receive--if they are fortunate enough to find lawyering work. I explore these two shortfalls, the job gap and the money gap, in the first and second sections of this Essay. In the final section, I turn to an equally troubling lacuna: the failure of law schools to acknowledge the harms their graduates are suffering. This responsibility gap is one that we, as educators, have the power to bridge. As I explore the shortfall between our schools' actions and our responsibilities, I offer several concrete steps to close that gap.

In An Essay on Rebuilding and Renewal in American Legal Education, 29 Touro L. Rev. 375 (2013), Jack Graves (Touro Law) describes ways to reduce risks and improve legal education outcomes for the bottom half of students in the bottom half of all law schools. Focusing on this group is essential to rebuilding legal education, Graves writes, because "[t]his group represents 25% of current law graduates, and, as a group, they almost certainly bear a disproportionate share of the burden created by our broken educational model. While the suggestions that follow will in some ways specifically target this “bottom quartile,” I believe they would materially improve legal education for a substantial majority of all prospective students."

May 23, 2013 in Scholarship | Permalink | Comments (0)

Wednesday, May 22, 2013

Education Equity Commission: Ignoring Segregation?

For each and every childNearly two years ago, the Department of Education created a commission of experts to:

provide advice to the secretary of the U.S. Department of Education on the disparities in meaningful educational opportunities that give rise to the achievement gap, with a focus on systems of finance, and to recommend ways in which federal policies could address such disparities. The findings and recommendations of the commission do not represent the views of the department, and this document does not represent information approved or disseminated by the Department of Education.

The Commission released its report this spring and described its proposed strategy for reform as follows:

• First, we begin with a restructuring of the finance systems that underlie every decision about schools, focusing on equitable resources and their cost-effective use.
• Second, we examine the most critical resource of all: quality teachers and school leaders, the supports they need to be effective with all learners and ways to make sure all students have access to high-quality instructional opportunities.
• Third, we explain the importance of starting early—making the case for high-quality early learning for all children, especially for low-income children, who need it most.
• Fourth, there is the matter of providing critical support—including increased parental engagement, access to health and social services, extended instructional time and assistance for at-risk groups—that students in high-poverty communities need to start strong and stay on track.
• And fifth, we lay out the changes in accountability and governance necessary to ensure that, a decade from now, there doesn’t need to be yet another commission appointed to call public attention to the corrosive effects on the nation’s children and our future of the failure to advance equity and excellence in America’s public schools.

These points recognize the problem of concentrated poverty, but the solutions focus exclusively on addressing the problem in place through money, programs, and the lack. Curiously missing is any mention of integration strategies.  A few members of the Commission were interested in focusing more heavily on integration, but the fact that they lack significant support is a sad testiment to how far away from integration the conversation has moved.

The Leadership Conference Education Fund recently released a response report to the Commission.  Integration was missing from its proposals as well.  The absence in both reports of integration proposals is probably due to the Commission's core charge of addressing finance inequity, and a desire to not muddy the waters with other issues.  While these practicalities are understandable, the assume that segregation and inequality can separated, which history and scholars tell us is false.  As Jim Ryan most prominantly has argued, the achievement gap is caused by the intersection of school finance inequity and segregation, not finance inequity alone.  Thus, solving finance inequity without touching segregation will not pay the dividends that policy makers expect.


May 22, 2013 in Equity in education, Federal policy, Racial Integration and Diversity, Scholarship, School Funding | Permalink | Comments (0)

Tuesday, May 21, 2013

No Child Left Behind waivers granted to Alaska, Hawaii, and W. Virginia

Nclb-logo1The Washington Post reports that Alaska, Hawaii and West Virginia have joined 37 states and the District of Columbia that have received waivers from the Department of Education from provisions in the federal No Child Left Behind (NCLB) law. NCLB requires K-12 schools to reach certain reading and math proficiency levels by 2014.With NCLB's target date approaching, states fearful of failing to meet their proficiency goals are requesting relief from the law's escalating sanctions, ranging from school improvement plans to takeover and conversion to public charter schools.  Only five states--California, Montana and Nebraska, North Dakota, and Vermont--are not requesting waivers. Eight states have pending waiver requests. In 2009, Diane Ravitch and John Chubb discussed NCLB's future as "the most ambitious legislation on K–12 schooling in American history" in Education Next. Were they right?


May 21, 2013 in Federal policy, News | Permalink | Comments (0)

Supreme Court grants cert in government prayer case; mum on challenge to high school graduations in churches

The U.S. Supreme Court granted cert yesterday in a government prayer case that could implicate religious expression during school board meetings. In Town of Greece v. Galloway, a New York town's practice of opening its legislative meetings with prayer--typically conducted by Christian clerics--is being challenged. The Supreme Court will review the Second Circuit Court of Appeals' holding that praying before town meetings is a government sanction of religion that violates the Establishment Clause. Lyle Dennison at SCOTUS Blog notes that the Court has said nothing about Elmbrook School District v. Doe, despite the case being on the conference calendar seven times this spring.

The school case challenged the Elmbrook, Wisconsin Board of Education's renting a church for high school graduations. Although the district's graduation exercises were moved to a non-religious facility in 2010, the issue presented of whether school districts may use religious facilities for school events remains unresolved. Last summer, the 7th Circuit Court of Appeals held en banc that "an unacceptable amount of religious endorsement and coercion occurred when the District held important civil ceremonies in the proselytizing environment of Elmbrook Church. The 7th Circuit noted that its decision was narrowly focused to the facts before the court and that its ruling "should not be construed as a broad statement about the propriety of governmental use of church-owned facilities."


May 21, 2013 in Cases, First Amendment, News, Supreme Court | Permalink | Comments (0)

Monday, May 20, 2013

Limits on Student Searches: New Trend or Exceptions to the General Rule

On Friday, the Nebraska Supreme Court in J.P. v. Millard Public Schools struck down a school's search of a student's car, which had turned up drug paraphernalia.  Because the car was parked off-campus (across the street from the school), the court was able to distinguish the case from various other decisions that had upheld searches of student cars that are parked on campus.

Cases striking down student searches were nearly non-existent a decade ago, and now have begun to appear with some minimal level of regularity (at least in comparison to prior years).  The U.S. Supreme Court in Safford Unified School Dist. v. Redding, 557 U.S. 364 (2009), struck down a strip search of a student.  It followed that with a non-search, but related case, JDB v. North Carolina, in which it struck down the interrogation of a student on school grounds.  Several state courts have also been willing  to find searches unconstitutional on state grounds, even if not on federal grounds.  York v. Wahkiakum Sch. Dist. No. 200, 163 Wash. 2d 297 (2008).

The recent Nebraska decision is easy enough to limit to its facts and, thus, would be relatively inconsequential.  The same could be said of many of the other cases striking down searches.  The quesion I continue to ponder is whether these cases represent examples where the courts have no choice but limit state action or whether the represent a willingness on the part of courts to gradually roll back the expansive power given to them in New Jersey v. TLO and which schools have argueably abused over the past two and a half decades.

--Derek Black


May 20, 2013 in Cases, Discipline, State law developments | Permalink | Comments (0)

Saturday, May 18, 2013

New sexual harassment standards for college campuses draws First Amendment concerns

As part of resolving Title IX complaints against the University of Montana for its handling of sexual assault reports involving its student-athletes, the federal government announced new definitions of sexual harassment designed "to provide clearer notice [to students] of the conduct prohibited" on college campuses. The Departments of Education and Justice co-authored a letter of findings to Montana, stating the administration's intention to make the policies in the letter "the blueprint for colleges and universities throughout the country." On Friday, the Foundation for Individual Rights in Education (FIRE), criticized those new policies in a Wall Street Journal op-ed,  pointing out that the administration's new sexual harassment definition includes "any unwelcome conduct of a sexual nature" including "verbal conduct." This definition, FIRE argued, "makes virtually every student in the United States a harasser."

The administration's standards might affect more than First Amendment rights. Other language in the letter allows the university to punish students for sexual harassment before the school's investigation or resolution of the complaint. This new policy, FIRE noted, is far broader than the standard set by the U.S. Supreme Court for student-on-student sexual harassment in Davis v. Monroe County Board of Education. Below is the announcement about the University of Montana agreement by deputy assistant attorney general Roy Austin Jr., DOJ Civil Rights Division.


May 18, 2013 in Federal policy, News | Permalink | Comments (0)

Thursday, May 16, 2013

DC School Closures: The Effect of Charter Schools and the Meaning of Discrimination

Masthead_logoA little over a month ago, a coaltion of community members and local organizations in DC sued the DC Public School System in an attempt to stop the continued policy of school closings.  Cribbing from the court's order:

"All fifteen schools on the final closure list lie east of Rock Creek Park, a historical dividing line within the city. East of the Park, residents are generally poorer and overwhelmingly black and Hispanic; west of the Park, residents are wealthier and mostly white. The halls of the closing schools reflect those demographics. In DCPS schools as a whole, 68.4% of students are black; 13.8% are Hispanic; 3.7% are Asian, other, or unknown; and 9.2% are white. In the schools slated for closure, by contrast, 93.7% of students are black; 5.9% are Hispanic; 0.4% are Asian, other, or unknown; and less than 0.1% (2 out of 3053) are white. The figures skew similarly, if less starkly, for disabled students: 27.7% of students in the closing schools are in special education, versus 14.2% of students in DCPS overall."

The plaintiffs alleged that the plan was racial discriminatory, violated the rights of special education students, and that the process by which DCPS made its decision violated the city's notice requirements.  Yesterday, the federal district court rejected plaintiffs' motion for preliminary injunction, finding that plaintiffs had a low likelihood of success on the merits.  The district court's opinion is here: Download School Closings --- Order.

In most respects, the opinion is a straightforward application of existing law and doesn't break new ground.  Interesting, however, is the issue of what it means to discriminate in the context of facts where one knows a policy will affect only minorities.  From the perspective of the Supreme Court's seminal opinion on the meaning of intentional discrimination in Mass. v. Feeney, one must act because of, not in spite of, disparate impacts.  This principle makes a great deal of sense in the context of the facts of Feeney, where the state was seeking to benefit veterans, which is a legitimate goal.  The only way to benefit veterans is "to benefit veterans."

The principle is not so obvious in the context of school closings where the district is picking which ones to close.  There are necessarily multiple options and no obvious legitimate goal to benefit or burden any group.  Ultimately, the district needs to operate fewer schools and closing any schools, including ones currently at capacity, can achieve that goal.  Thus, the question is not necessarily which schools are the most underutilized, but rather, which students will feel the burden of school closing.  When minority students are the only ones that feel that burden, one can legitimately ask whether the district would ever undertake a policy in which whites were the only ones feeling the burden.

You might also find in the subtext of the opinion the role of charter school growth in the closing of traditional public schools.  Charter schools have rapidly expanded in minority communities in DC, and the under-enrollment in the schools slated for closure is closely connected to the growth of charter schools.

--Derek Black

May 16, 2013 in Cases, Charters and Vouchers, Discrimination, Equity in education | Permalink | Comments (1)

Recent scholarship

LegalwriteAaron Saiger (Fordham Law) has posted Charter Schools, the Establishment Clause, and the Neoliberal Turn in Public Education on SSRN (Cardozo Law Review, forthcoming). Saiger is not optimistic about states' abilities to control how much public money goes to religious charter schools, writing that "[p]ractical and constitutional constraints upon the regulatory tools that the neoliberal paradigm makes available to states — rulemaking and exercising bureaucratic discretion when approving and renewing charters — ensure that efforts to abolish religion in charters will enjoy only partial success."

Promoting Language Access in the Legal Academy, recently posted on SSRN, discusses innovations and best practices about language access in the legal academy. Building on research and the ABA’s 2012 Standards for Language Access in Courts, the authors outline ways to include language access in the law school curriculum and suggest bilingual instruction as a language access strategy. The authors also describe how law schools can expand the pipeline into the interpreter professions by training and deploying bilingual college students as community interpreters. The article by Gillian Dutton (Seattle University School of Law), Beth Lyon (Villanova University School of Law), Jayesh Rathod (American University - Washington College of Law), and Deborah M. Weissman (University of North Carolina School of Law), will be in the University of Maryland Law Journal of Race, Religion, Gender and Class, forthcoming.

Sara Solow and Barry Friedman (NYU Law) advocate changing the ways law professors teach and discuss constitutional interpretation in their article, How to Talk About the Constitution (Yale Journal of Law & the Humanities, 2013). This article would normally seem more appropriate for our colleagues at Constitutional Law Prof Blog, but is helpful for education law scholars because the authoris illustrate their constitutional interpretation model by making a case for a federal right to a minimally-adequate education.

Speaking of Constitutional Law Prof -- they have a detailed breakdown of why the Louisiana Supreme Court struck down the state's school voucher funding scheme this week. Read more at Constitutional Law Prof Blog.

Know of other recent education law scholarship that we should share? Please send us a link.


May 16, 2013 in Scholarship | Permalink | Comments (0)

Upcoming Conference and Report on Community Colleges as a Bridge to Higher Educational and Economic Opportunity

Rick Kalhenberg and the Century Foundation are hosting "Bridging the Higher Education Divide:
Strengthening Community Colleges and Restoring the American Dream" next week in Washington, DC.  See below for more details.  The Century Foundation will be releasing its report on the subject there as well.  For those who cannot make it, it will be webcast.  I will update this post with the link when it is available.

 --Derek Black



Bridging the Higher Education Divide:
Strengthening Community Colleges and Restoring the American Dream

Thursday, May 23, 2013 11:00-12:30 (panel discussion) to be followed by lunch
Knight Conference Center at Newseum, 8th Floor
555 Pennsylvania Avenue, NW
Washington, DC
(Entrance located on 6th Street between Pennsylvania Avenue and C Street)

Community colleges are more important than ever to American economic competitiveness and social mobility, yet more than half of entering students fail to receive a certificate or degree within six years.  Many fine efforts are being pursued to scale up best practices at community colleges, but should we go further and rethink the basic ways in which two-year institutions are financed and governed?  Please join us for the release of the report of The Century Foundation Task Force on Preventing Community Colleges from Becoming Separate and Unequal.  Learn more about the 22-member Task Force, which was supported by the Ford Foundation and co-chaired by Eduardo Padrón and Anthony Marx. The forum will feature:


Martha J. Kanter, Under Secretary, U.S. Department of Education

Anthony Marx, President, New York Public Library and Former President, Amherst College (Task Force Co-Chair)

Eduardo Padrón, President, Miami Dade College (Task Force Co-Chair)

Richard D. Kahlenberg, Senior Fellow, The Century Foundation (Task Force Executive Director)

Isaac Cameron, Former Student, Highline Community College, and Amherst College Graduate

May 16, 2013 in Conferences | Permalink | Comments (0)

Tuesday, May 14, 2013

Louisiana Supreme Court rules voucher funding violates the state Constitution

The Louisiana Supreme Court has ruled that the current method of funding the statewide school voucher program is unconstitutional. Act 2, part of Gov. Bobby Jindal's 2012 package of education reforms, diverts money from each student's per-pupil allocation to cover the cost of private or parochial school tuition. The act authorizes both the Louisiana Scholarship Program and the new Course Choice program. 


States are busily passing voucher laws, but a few are running into problems with their state constitutions. Louisiana now joins Colorado and Florida in having school voucher laws declared unconstitutional under their state constitutions. The courts' rulings in Colorado and Florida were decided in part on religious grounds, and that part of the voucher debate is brewing in New Jersey and Pennsylvania.

Puzzled by the voucher controversy? The National Conference of State Legislatures has a primer on the voucher debate, as does Education Week.

May 14, 2013 | Permalink | Comments (0)

Diversity without Affirmative Action? Part II

20130114-richard-d.-kahlenberg John_brittain_headshotAs a followup to LaJuana's  post last week, I see the New York Times is hosting a debate on the same topic, with commentary by Rick Kahlenberg, Patricia Williams, and John Brittain, among others.   

These commentators are obviously bracing for the worst (depending on your perspective) in Fisher v. Texas, but Rick Kahlenberg and John Brittain offer suggestions on how to move forward with policies that ensure meaningful equity, both in terms of race and socioeconomics.

                                                                           --Derek Black

May 14, 2013 in Racial Integration and Diversity | Permalink | Comments (0)

Monday, May 13, 2013

Segregation Claims, Strict Scrutiny, and Equal Access Part I

A few days ago, the Sixth Circuit in Spurlock v. Fox rejected a claim by an African American community challening Nashville's student assignment plan. Nashville's school district was under court ordered desegregation until 1998.  The current challenge centers around the district's adoption of a neighborhood schools plan that retained some transfer options for students, but which retained few options and less integration.

An interesting aspect of the case was the plaintiffs' allegation that the mere consideration of racial demographics in adopting the new plan amounts to a racial classification that should trigger strict scrutiny.  This same argument was recently made in Doe v. Lower Merion, 665 F.3d 524 (3d Cir. 2011), although there the challenge was to a racially integrative plan.  Both Spurlock and Doe rejected this argument, relying on Justice Kennedy's controlling opinion in Parents Involved v. Seattle. Thus, the opinion, although a negative outcome for African American students seeking access to better schools in Nashville, is favorable precedent for school districts that want to consider racial demographics to create integrative assigment policies. The Spurlock opinion is available here:

The case also raise key issues about equal access to quality educational opportunities and the meaning of intentional discrimination, which I will address in upcoming posts.

--Derek Black

May 13, 2013 in Cases, Discrimination, Equity in education, Racial Integration and Diversity | Permalink | Comments (0)

Sunday, May 12, 2013

Texas judge rules that showing religious banners during school sporting events does not violate the Establishment Clause

For every game last season at Kountze High School in Texas, cheerleaders made spirit banners with bible verses on them for football players to run through to the field. The cheerleaders were temporarily stopped from using the bible-verse banners, when Freedom from Religion, a group advocating church-state separatism, complained about the banners' religious content. Kountze Independent School District (KISD) Superintendent Kevin Weldon responded by banning displays of religious messages at school sporting events. On May 8, a Hardin County, Texas judge ruled that the cheerleaders' religious-themed banners did not violate the First Amendment. The Establishment Clause does not prohibit displaying banners with religious content at public school sporting events, Judge Steven Thomas wrote, or require that the KISD ban such banners. The harder question not answered in the opinion is whether the Kountze Independent School District can ban such messages. See KISD's press release on Matthews v. Kountze Independent School District.

May 12, 2013 in Cases, First Amendment | Permalink | Comments (0)

Diversity Without Affirmative Action: Still a Worthy Goal?

Education News discusses California universities' efforts to maintain diversity after Proposition 209 and asks if diversity is worth the cost:
Those familiar with the Supreme Court are saying that it’s looking increasingly likely that affirmative action in college admissions is on its way out. The New York Times explores the ways in which states that are now looking for a different way to maintain diversity on their college campuses can emulate one of the first states not to use affirmative action at all – California. Read more at Education News.


May 12, 2013 in Equity in education | Permalink | Comments (0)

Friday, May 10, 2013

Pulling the Parent Trigger

Crayola Lincoln LogsAn article about one community's experience with parent-trigger laws was posted today by Yasha Levine in Pulling the Parent Trigger: The Push to Privatize Public Schools. Levine details allegations that Parents Revolution, a movement favoring parent choice to change a public school to a privately-run one, used heavy-handed tactics in Adelanto, CA, to convince poor and undocumented parents to sign a parent-trigger petition. The parent-trigger petition got enough signatures to convert the local public elementary school, Desert Trails Elementary, to the first school to be privatized under California's parent trigger law.

In answer to critics of the parent choice movement, T. Willard Fair, CEO of Miami's Urban League, recently wrote an op-ed, Stop blaming poor parents, empower them with school choice. In the Miami Herald, Fair wrote, "I don’t care about the vehicle. I care about the result. And I’ve found the result is much better when parents are allowed to make choices." Fair is a former chair of the Florida State Board of Education.

Photo: Crayola Lincoln Logs, Chris Metcalf/ Creative Commons 2.0

May 10, 2013 in Equity in education, News, State law developments | Permalink | Comments (0)