Sunday, June 30, 2013

Vinay Harpalani: Affirmative Action Survives — For Now

Harpalani_Vinay_250pxVinay Harpalani has posted his early take on Fisher v. Univ. of Texas at Austin at his institution's website, IIT Chicago-Kent Faculty Blog. Below is an excerpt of Professor Harpalani's assessment of the decision:

Make no mistake about it: given the current composition of the Supreme Court, this is the best realistic outcome for proponents of affirmative action (I consider myself to be a strong one). Otherwise, Justices Breyer and Sotomayor, both of whom support race-conscious admissions policies, would not have voted with the majority. The Supreme Court’s opinion in Fisher pretty much leaves the framework of Grutter v. Bollinger in place. The only change is that the language of “good faith” in Grutter is more restricted, and the meaning of this language was already ambiguous.... Moreover, because most other states do not have such plans such as the Top Ten Percent Law, they are not in the same boat as the University of Texas, and today’s ruling does not compel universities in those states to do anything differently.

Thanks to Professor Harpalani for sending along this post to join Education Law Prof's ongoing conversation about Fisher, starting with Derek Black (South Carolina) and John C. Britton (UDC).Professor Harpalani's comments were originally posted on the American Constitution Society (ACS) blog. He is also quoted here on Fisher in the New York Times.

 We welcome contributions from advocates and scholars as we continue to examine what Fisher means for diversity in public higher education.


June 30, 2013 in Cases, Equity in education, Higher education, Supreme Court | Permalink | Comments (0)

Education Secretary Arne Duncan hails Senate's passage of immigration reform bill posted U.S. Secretary of Education Arne Duncan's statement Friday hailing the Senate's passage of the  immigration reform bill that would help foreign and undocumented students continue their education in the United States:

Since our early days as a nation, immigration has helped spur innovation and strengthen our economy. It will continue to do so in the 21st century. The vote in the Senate is a great step toward reforming the nation's broken immigration system and providing a pathway for DREAMers and their families. It is encouraging to see our country's political leadership set aside partisanship and come together to do what's in the best interest of the country.

If we are going to meet President Obama's goal of leading the world in college graduates by 2020, we must support the education and growth of every student. We must also ensure that America remains a beacon for the most promising minds, by making it easier for foreign graduate students in science and math to stay in this country, rather than taking their skills elsewhere. Our country's best and brightest include students and families of every culture and creed, who deserve a fair shot at success whether they were born in the United States or chosen it as their home.


June 30, 2013 in Federal policy, News | Permalink | Comments (0)

Friday, June 28, 2013

Anti-bullying Versus Free Speech Case: Student Says "I don't accept gays."

A newly decided case, Glowacki ex rel v. Howell Public School Dist.,  2013 WL 3148272 (E.D. Mich. 2013), involves the tension between preventing bullying in school and respecting students' free speech rights. During Anti-Bullying Day at Howell High School, plaintiff was thrown out of a teacher’s classroom for saying, among other things, “I don’t accept gays.” The plaintiff sought an injunction and declaratory relief against defendant, alleging a violations of the First Amendment.

Relying on Tinker v. Des Moines, the court held that the plaintiff’s comments were protected by the First Amendment’s Free Speech Clause, as they were an expression of his opinion rather than harassing behavior directed at other students. The court rejected the teacher's claim of qualified immunity for the claims against him personally, but held that the school district was not liable for the teacher's violation of the student's rights because the district's "policies comport with the school speech standard set forth in Tinker and are therefore constitutional. At most, the School District negligently adopted a policy that posed a risk to the First Amendment rights of its students and negligently failed to provide training on the intersection of anti-bullying policies and the First Amendment.” But the court found that the plaintiffs' allegations were devoid of facts indicating that the district was negligent in training its teachers. 

The case is also interesting for its substance and because it cites to one of our colleagues in regard to its analysis of whether the student's speech was protected.  The relevant section reads as follows:

There is no indication from the evidence here that the negative comments Daniel made about homosexuality threatened, named, or targeted a particular individual or, for that matter, that Daniel even knew that there was a homosexual student in his economics class. (McDowell Dep., McDowell's Mot. Summ. J. Ex. B, at 80:13–17.) Given that the speech did not identify particular students for attack but simply expressed a general opinion—albeit one that some may have found offensive—on the topic of homosexuality, the Court finds that Daniel's expressive conduct did not impinge upon the rights of other students.  See generally Emily G. Waldman, A Post–Morse Framework for Students' Potentially Hurtful Speech (Religious and Otherwise), 37 J.L & Educ. 463, 468–69, 499–503 (2008) (suggesting a framework for analyzing potentially hurtful student speech by asking whether the speech was directed at a particular individual, and if not, assessing the impact of such speech on the educational performance of students hearing the speech).

For those who read in full, you will see that it broaches serious issues and one could query the extent to which the student's behavior could be interpretted was to do more than just express his opinion, but I will leave it to Professor Waldman to tell us whether the court applied her principle correctly.  Regardless, Kudos to Professor Waldman, who shows that our scholarship is relevant both in the classroom and in court.

For those interested in knowing a little more about Professor Waldman's article, she shared, at my request, the following explanation:

My article suggested that, in analyzing whether potentially hurtful student speech warrants protection, courts should distinguish between (1) speech that identifies particular students for attack and (2) student speech that is primarily commenting on a political, social, or religious issue.  I argued that schools should have broad rein to restrict the first category, but should only be able to restrict speech in the second category when there is a real likelihood that the speech will substantially disrupt the education of at least one other student.  I was very pleased to see that the district judge in this case found this distinction helpful.  




June 28, 2013 in Cases, First Amendment, Gender | Permalink | Comments (0)

New Study on Charter School Achievement Finds Improvement

Credo CaptureWith all of the Supreme Court cases coming down this week, I have been slow to post the Stanford Center for Research on Education Outcome's (CREDO) new charter school study, but it should not get lost in the shuffle.  For those who have not followed the debate over the last several years, CREDO has published some of the most comprehensive and influential studies on charter school achievement available.  I will save in-depth analysis for next week.  For now, it suffices to say that CREDO's previous 2009 report painted a relatively poor pictures of charter schools and was fodder for those who oppose them.  I admit that I have placed great weight in the 2009 study's less than flattering results for charter schools.  This new study, however, presents an envolving picture. 

While charters still do not consistently outperform traditional public schools (as some believe), this study indicates that, on the whole, charter schools have shown improvement since 2009, ineffective ones have begun to close, and that a larger number than before are outperforming traditional public schools.  In addition, the study suggest that the popular notion that charters steal all of the top students is probably incorrect as a general principle.  With that said, I will let the report speak for itself.  Here are some of the most important findings:

  • "Charter schools and their feeder schools are educating more disadvantaged students than in 2009."
  • "[T]his study cannot address the question of whether charter schools manipulate their recruitment to obtain more academically prepared students, known as cream-skimming. . . . What we can say, however, is that the demographic trends since the earlier report point to more challenging students, not less, which would run counter to the notion of selectivity on
    prior education performance."
  • "The analysis of charter schools in the original 16 states covered in the 2009 report shows that they have maintained or slightly increased their impact on student learning in the intervening years. The rise in average student growth across the continuing schools is due in no small part to the closure of low-performing schools, which amounted to about 8 percent of the 2009 sample of schools."
  • "The 27 states in our study provide the widest angle view of the charter school sector to date. Across multiple measures, the students in these charter schools have shown both improved quality over the results from 2009 and an upward trend in their performance over the past five years. Compared to their likely TPS [(Traditional Public School)] alternative, the average charter school student now gains an additional 8 days of learning each year in reading, compared to a loss of 7 days each year in the 2009 report. In math, students in 2009 posted 22 fewer days of learning; today, charter school students have equivalent levels of learning in math as their TPS peers."
  • "As with the 2009 report, the amount an average charter student learns each year varies widely across states. . . . In reading, charter school students on average have significantly stronger growth than TPS students in 16 of the 27 states evaluated. Reading growth was weaker for charter students in eight states and similar in three states. In math, 12 state charter sectors had stronger growth than TPS, 13 states had weaker growth, and two had growth that was similar to TPS."
  • "While much ground remains to be covered, charter schools in the 27 states are outperforming their TPS peer schools in greater numbers than in 2009. . . . [A] quarter of charter schools outperform their local TPS alternatives in reading, and 29 percent do so in math. The figure from 2009 was 17 percent of schools with stronger gains in math and 37 percent with smaller gains than the comparison TPS performance. And the share of charter schools that produced inferior outcomes compared to their local TPS has declined to 19 percent of schools in reading and 31 percent in math. "


June 28, 2013 in Charters and Vouchers | Permalink | Comments (0)

Thursday, June 27, 2013

Recent scholarship

Community Support for Mayoral Control of Urban School Districts: A Critical Reexamination

Francis X. Shen (Minnesota) challenges the view that citywide referenda alone are an effective means of ensuring accountability for mayoral control of urban school districts. From Professor Shen’s abstract on SSRN:

Secretary of Education Arne Duncan has encouraged more mayors to take charge of their urban schools districts. Central to debates over mayoral control is the use of a citywide referendum to legitimize mayoral control. Voters in Boston and Cleveland supported mayoral control, while in Detroit voters chose to return to an elected school board. Through new empirical analysis of the referenda results in Boston and Cleveland, the article shows that rather than establish genuine democratic legitimacy, the referenda in fact mask strong class-based, and in Boston, race-based opposition to the reform strategy. Legislatures considering mayoral control would do well to think carefully before adopting a referendum as the only or primary solution to the mayoral control accountability dilemma. A referendum in and of itself is not a satisfactory safeguard to ensure the participation of urban minorities and poor residents in urban education reform discussions.

For-Profits and the Market Paradox

Omari Scott Simmons (Wake Forest) discusses proprietary schools’ growing impact on higher education and how those schools, fueled by federal financial aid, disproportionately impact vulnerable student populations. From Professor Simmons’s SSRN abstract:    

The emergence of For-Profit Colleges and Universities (FPCUs) presents an interesting paradox: FPCUs, rather than traditional non-profit and public institutions, are becoming a de facto path for many vulnerable students: low socioeconomic-status students, underrepresented minorities, first generation college students, non-traditional adult students, and veterans. Federal government funding has accelerated the migration of vulnerable students to FPCUs. This migration reveals a shortcoming associated with portable financial aid in the existing regulatory environment: ill-informed vulnerable students selecting educational options that differentially empower them. Although FPCUs provide access to vulnerable student populations, the existing regulatory framework, when combined with market forces, does not at present, adequately protect federal dollars, students, or address broader societal issues, such as higher education stratification. 

Constitutional Challenges to Gender-Restrictive School Dress Codes in the Ninth Circuit

Patrick Eoghan Murray's student note posted on SSRN examines constitutional challenges to  school dress codes that mandate traditional gender norms. Murray focuses on Ninth Circuit cases to illustrate the hurdles potential student litigants face from case law that is not explicitly overruled.

June 27, 2013 in Scholarship | Permalink | Comments (0)

Wednesday, June 26, 2013

U.S. education receives mixed progress report: increased spending, but mainly in higher education

Education at a Glance 2013: OECD Indicators was released yesterday by the international economic group, the Organisation for Economic Co-operation and Development. OECD compares annual  quantitative indicators of quality education in 34 countries. The 2013 edition “offers a snapshot of how people who participate in and benefit from education, fared during the worst economic crisis seen in decades.” U.S. public education funding dropped one percent between 2008 and 2010; the U.S. was one of five countries in the world to decrease public education spending during those years (joining Estonia, Hungary, Iceland, and Italy). Across all levels of education, annual per-student spending by educational institutions in the United States was higher than in any other country (U.S. Country Report, U.S. p. 4), but most of that spending was on higher education  (the United States spends twice as much of its GDP (2.8%) on higher education than the international average (1.6%)). Although the U.S. spends more than every other country on higher education, a larger-than-average proportion of that money comes from private sources. Read the United States country note here and the full report here.


June 26, 2013 in News | Permalink | Comments (0)

Education advocacy group may challenge Philadelphia school district budget cuts

Guest blogger Danielle Holley-Walker recently discussed the troubled Philadelphia school district in Education Law Prof (School Closings, Charter School Growth, and the Debate over Their Connection, June 18, 2013). Yesterday, the Education Law Center advocacy group announced that it may sue to challenge funding disparities in Philadelphia’s school district. Executive director Rhonda Brownstein told NBC10 Philadelphia that the center is waiting to see how much of Pennsylvania’s $11.7 billion education budget will be allocated to relieve Philadelphia’s budget shortfalls. Brownstein acknowledged that suing would be difficult because of state supreme court precedent that defers to the legislature on education funding issues. Law professor Bruce Ledewitz (Duquesne) said that prior precedent could make an education funding lawsuit “dead on arrival” unless a court accepts a theory that the budget cuts will effectively shutdown the district. Read more at NBC10 Philadelphia.


June 26, 2013 in News, State law developments | Permalink | Comments (0)

John Brittain on Fisher v. Texas

John_brittain_headshotLong term civil rights stalwart and professor, John Brittain, was nice enough to share his break down of Fisher v. Texas with us today.  As many of you know, John has been involved in one way or another with almost every major education case dealing with race over the past few decades.  Nearest to my heart, he helped start and finish the ground breaking litigation in Sheff v. O'Niell, in which the Connecticut Supreme Court found that de facto school segregation violates the state constitution.   As the former chief counsel to the Lawyers' Committee for Civil Rights, he also played a crucial role in various other affirmative actin and education cases.  After the Lawyers' Committee, he returned to the academy, but with his free time continues to play an important role in litigation and policy.


John's takeaway point from the decision in Fisher are as follows:

  • The decision reaffirms the holistic use of race in the admissions process, at least until the Fifth Circuit Court of Appeals rules on the case after remand.  See Gratz v. Bollinger, 539 U. S. 244 (2003), and Grutter v. Bollinger, 539 U. S. 306 (2003).  The Supreme Court punted the case back to the lower courts on a technicality, deliberately sidestepping the constitutionality of affirmative action.  The value of expanding opportunity for all with a fair shot to attend colleges and universities lives on.  
  • At stake was how much should courts afford deference to universities in reviewing affirmative action policies?  It is indeed still “proper” for courts to grant “some … deference” to the university’s “educational judgment” “that a diverse student body” “is essential” to “serv[ing] its educational goals.”  Fisher, slip op. at 9 (internal citations omitted) (emphasis added).  Under the strict scrutiny standard, a government agency must show that the use of race satisfied a compelling interest (the goals), and the means to accomplish the goals were narrowly tailored with the least restrictive methods. 
  • The lower court erred in “not apply[ing] the correct standard of strict scrutiny.”  Fisher, slip op. at 1-2.  Once the university “establishe[s] that its goal of diversity is consistent with strict scrutiny, it has the burden of proving that the “means chosen by the [u]niversity … are [necessary, and] narrowly tailored to that goal.”  Here on the mean part of the strict scrutiny test, “the [u]niversity receives no deference” and “it is for the courts to ensure that [this burden has been met].”  Fisher, slip op. at 10 (internal quotation marks omitted) (emphasis added).
  • While the university does not have to “exhaust[] … every conceivable race-neutral alternative,” the courts cannot simply adopt the “university’s good faith consideration of workable race-neutral alternatives.”  Fisher, slip op. at 10 (internal quotation marks omitted).  “The … court must … be satisfied that no [available] workable race-neutral” means would accomplish the university’s objectives.  “If a nonracial approach … could promote the substantial interest about as well and at tolerable administrative expense, then the university may not consider race.”  Fisher, slip op. at 11 (internal quotation marks and citations omitted). 
  • Although in the past the Court has declared that strict scrutiny “must not be strict in theory, but fatal in fact,” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995),  the Court coined an additional moniker in Fisher, that it “must not be strict in theory but feeble in fact.”  Fisher, slip op. at 13 (emphasis added).
  • Justice Scalia concurred because the constitutionality of affirmative action was not at issue.  Fisher, slip op. at 1 (Scalia, J., concurring).
  • Justice Thomas concurred but also added in a twenty-page opinion on the merits of the case why the government’s use of race-based classifications in education is always prohibited.  Fisher, slip op. at passim (Thomas, J., concurring).
  • Justice Ginsburg dissented and would have upheld the lower court’s decision – accepting the university’s good faith in its goals for diversity and insofar that race-neutral means would not work – as satisfying the commands of Justice Powell in Bakke and the Court in GrutterFisher, slip op. at passim (Ginsburg, J., dissenting). 
  • The Court could have simply held months ago, as it concluded on June 24, 2013, “that the judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fifth Circuit for further proceedings in light of Grutter, Gratz and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978).”  



June 26, 2013 in Cases, Racial Integration and Diversity | Permalink | Comments (0)

The Voting Rights Act and School Board Elections

As most know by know, the Supreme Court struck down section 4 of the Voting Rights Act yesterday in Shelby County v. Holder.  That section's formula defines which states and jurisdictions must submit voting changes to the Department of Justice for preclearance.  The preclearance process ensures that potentially discriminatory changes in voting laws are reviewed and revised before they go into effect.  As a result of the Court's decision, there are no longer any jurisdictions subject to preclearance.

This is a big deal for many school districts.  School board elections and racial equity go hand in hand.  In fact, the effectiveness of school desegregation orders was often as much a product of school board elections as it was court orders.  Likewise, current efforts at voluntary desegregation and diversity easily shift from one school board election cycle to the next, as seen so obviously during the last 6 years of elections in Raliegh, NC.  The saving grace in so many of these instances was that changes in school board election procedures (poling places, single member districts v. at large districts, district  boundaries) in covered jurisdictions (mostly the South) had to be cleared through DOJ.  This outside check was instrumental in allowing African Americans and other minorities to get a fair shot at electing the school board, which meant fair representation on the board.  That check is now gone.  To be clear, citizens still have the right to sue under section 2 of the Voting Rights Act, but the burden of demonstrating a violation now falls on individual, whereas the burden of proving fairness once fell on the state and local jurisdictions.  Only time will tell what this means for desegregation, diversity and voluntary integration in the South, but I know it makes a lot of people nervous.



June 26, 2013 in Cases, Equity in education, Racial Integration and Diversity, Supreme Court | Permalink | Comments (0)

Tuesday, June 25, 2013

The Supreme Court's Other School Case: Vance v. Ball State University

The Court's long awaited opinion in Fisher v. Texas overshadowed most everything else in legal news yesterday, but lest we forget the Court also decided Vance v. Ball State University.  For the most part, Vance is an employment case that just happens to arise in the context of higher education.  But since a lot of employment cases just happen to happen in schools, it is worth noting.  The issue before the Court was what type of employees fall in the category of "supervisor."  The meaning of supervisor is important under Title VII cases, as it dictates the employer's liability in harassment cases.  The Court explained:

Under Title VII, an employer’s liability for workplace harassment maydepend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action (i.e., “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits,” Burlington Industries, Inc. v. Ellerth, 524 U.
S. 742, 761), the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that theemployer provided. Faragher v. Boca Raton, 524 U. S. 775, 807; Ellerth, supra, at 765.

In short, "An employee is a 'supervisor' for purposes of vicarious liability under Title VII only if he or she is empowered by the employer totake tangible employment actions against the victim."  The Court's holding was at odds with the EEOC's interpretation, as well as that of the some courts of appeals.



June 25, 2013 in Cases, Higher education, Supreme Court | Permalink | Comments (0)

Monday, June 24, 2013

Fisher v. Texas, Part II: Making Sausage

As indicated in my first post, the Court neither upheld nor struck down the Texas plan, but rather said the lower court was too deferential in reviewing Texas' admission policy.  Thus, the lower cout must take another more rigorous review of the plan.  Because the Court did not affirm the lower court and uphold the plan, the result in Fisher suggests hostility to affirmative action.  But many, if not most, affirmative action advocates would have expected much worse, particularly if they knew Kennedy would write the majority opinion.  With Kagan on the sidelines, there was no way to 5 votes to uphold the plan in its entirety, even if the three liberals could convince Kennedy.

The final opinion, moreover, was not even close.  It was 7-1 in overturning the court of appeals and sending it back.  That Sotomayor and Breyer signed onto the majority opinion, and only Ginsberg dissented, sends a different message than one would have expected with Kennedy in the majority: Fisher is not the end of affirmative action in higher education.  Justices Breyer and Sotomayor would have never signed onto to the end of affirmative action, but they signed onto this opinion.  This suggests a lot of jockeying behind close doors to save affirmative action in higher education, but in an indirect way.

My best guess in reading the opinion is that initial vote as to whether to overrule Grutter (even though the Court says that was not before it) and/or strike down the Texas plan on its facts was 4-4, with Kennedy in the dissent, which was my best case scenario heading into the case.  This 4-4 initial vote is a relatively solid thesis now.  In the case of a 4-4 tie, the lower court would have been upheld and nothing at all would have changed.  This clearly would have incensed the 4 most conservative members of the Court.  And even though Justice Kennedy may not have been prepared to completely end affirmative action, maintaining the status quo was not his desire either.  My hope and intuition was that he would hate the end of affirmative action more than the continuation of the status quo.  But, of course, he is smarter than me and the final opinion and vote in Fisher suggests a compromised third position: join the majority and bring 2 dissenting liberals with him, so that he could write the majority.  This had the effect of putting Scalia and Thomas in the disgruntled concurring camp, rather than squarely in control of the majority.

And that is how sausage and Supreme Court opinions are made (I assume, since I know nothing of either).



June 24, 2013 in Cases, Higher education, Racial Integration and Diversity, Supreme Court | Permalink | Comments (0)

Grutter Lives, Fisher Dies (sort of)

This morning the Supreme Court decided Fisher v. University of Texas, a case dealing with the consideration of race in higher education admissions.  The Court neither struck down nor upheld the Texas admissions policy.  Instead, it held that the lower court afforded the University too much deference in reviewing this policy.  Thus, the Court remanded the case for further, more stringent review.  As a result, the Court did not get into the facts of whether Texas' plan is constitutional and did not offer any new specific guidelines for other universities.  The Court, at best, expressed one reocurring them: that the consideration of race must be "necessary," meaning that the University's goals could not be achieved with other reasonably available race-neutral alternatives.  This, however, is not new.

So what does all of this mean? First, the ability to consider race in university admissions survives.  Most notably, the Court refrained from overturning Grutter v. Bollinger and said it took Grutter, along with Gratz v. Bollinger and Bakke v. Regents, "as given."  Second, the Fisher case is not over and may well make it back to the Supreme Court at a future date.

The Court's opinion is here.


June 24, 2013 in Cases, Higher education, Racial Integration and Diversity, Supreme Court | Permalink | Comments (0)

Sunday, June 23, 2013

NPR: What Happens Without Affirmative Action: The Story of UCLA

NPR reports today on UCLA's experience after California's 1996 ban on affirmative action as an admissions criteria in higher education. In 2006, out of UCLA's freshman class of 5,000 students, 96 were African-American. UCLA tried using other criteria to create diversity, such as considering whether students were the first in their families to attend college, but that criteria got complicated too. Read more at NPR.


June 23, 2013 in Higher education | Permalink | Comments (0)

Friday, June 21, 2013

House Committee Approves Education Reform Legislation

The House Committee on Education and the Workforce, chaired by Rep. John Kline (R-MN), today approved the Student Success Act (H.R. 5). Introduced by Chairman Kline and Subcommittee on Early Childhood, Elementary, and Secondary Education Chairman Todd Rokita (R-IN), this responsible legislation will rewrite the nation’s K-12 education law and put more control in the hands of state and local leaders.


On Wednesday, Congress took another step toward reauthorizing No Child Left Behind (the Elementary and Secondary Education Act). The House bill now will be considered with the Senate bill passed through the Committee on Health, Education, Labor and Pensions.


June 21, 2013 | Permalink | Comments (0)

Judge Backs Student Who Said He Couldn't 'Accept Gays'

A federal district judge has ruled that a high school teacher violated the free speech rights of a Michigan student by removing him from class for expressing views that he didn't "accept gays" because of his Roman Catholic faith. In the June 19 decision in Glowacki v. Howell Public School District, U.S. District Judge Patrick J. Duggan of Detroit awarded nominal damages of $1 to Daniel Glowacki, who was a junior at Howell High School in the fall of 2010 when he made the statement. Judge Duggan wrote in the opinion that"[p]ublic schools must strive to provide a safe atmosphere conducive to learning for all students while fostering an environment that tolerates the expression of different viewpoints, even if unpopular, so as to equip students with the tools necessary for participation in a democratic society."



June 21, 2013 in Cases, First Amendment | Permalink | Comments (0)

Student Kicked Out of Christian College for Being Gay Challenges School Debt

In less than two weeks since launched a petition asking Grace University to forgive the debt owed by a student who was kicked out for being in a same-sex relationship, the list of signatures has grown to more than 64,000.Grace, a Christian college in Omaha, Neb., suspended 24-year-old Danielle Powell in 2011 for "homosexual acts," and subsequently denied her re-enrollment in January 2012. The university revoked her scholarship and then billed Powell just over $6,300 for tuition for the semester she was not allowed to complete. Grace President David Barnes sent a campuswide email on June 14 reaffirming that the administration holds Powell's relationships are "sinful."



June 21, 2013 in Higher education, News | Permalink | Comments (0)

Thursday, June 20, 2013

New Report on Achievement Gaps: Purports to Finding Shrinking Race Gap While Other Gaps Expand

A new report by Education Sector details changes in the the achievement gap as measured by the Education sector CaptureNational Assessment of Educational Progress.   Between 2003 and 2011 on 4th and 8th grade reading and math, the report finds that all students combined have shown a 20 point gain.  Moreover, the subgroups of  White, Poor, African American, and Latino students all showed gains.  Starting from a lower baseline to begin with, however, African American, Latino, and Poor students all posted larger gains than Whites.  These groups still achieve at a significantly lower level than Whites, but the gap closed.  This is all encouraging news.

The discouraging news is that the gap between the students of some states has widened. For instance, the gains in New Jersey and Maryland tripled or quadrupled the gains of students in about 10 other states.  Thus, while the national racial and poverty achievement gaps have shrunk, the gap between states has grown enormously.  The report characterizes these diverge realities as follows:

Let us put this new state achievement gap in perspective. The U.S. has a notorious and persistent difference in achievement between black and white students. Rooted in slavery, segregated schools and a century of social and economic discrimination, the black-white achievement gap is depressingly large. . . . In 2011, white students scored 1044 on our composite of four NAEP assessments; black students totaled 939—a 105 point gap. Recalling that students improve about 10 points per grade level per test, a gap of 105 points translates into two-and-a-half years of achievement.  Put another way, a white student midway through sixth grade achieves at about the same level as a black student at the end of eighth grade. In a nation founded on the principle of equality, that is an unacceptably large gap in achievement.

And the nation has long sought to reduce it. A decade before ESEA was passed, the Supreme Court declared separate but equal schools unconstitutional in Brown v. Board of Education. Research has looked hard for solutions. But a gap that took two centuries to establish has proven stubbornly resistant to improvement. Over nearly 40 years, by our composite measure, the gap has narrowed by only 25 points—about a half point per year.

All of which makes the new gap between the states alarming. . . . In just eight years, the states have created an achievement gap that is about 60 percent of the magnitude of the racial achievement gap—that took two centuries to establish. In just eight years, the states have created an achievement gap that is nearly 250 percent the magnitude of hard won reductions in the racial achievement gap over 40 years.

Because student achievement is so heavily influenced by family, community, and other factors beyond the reach of the schoolhouse, it is hard to find schooling making a substantial difference in student achievement. But that is precisely what the state NAEP data indicate. Achievement in some states has been soaring; achievement in other states has been lagging. And the pace of differentiation rivals, indeed exceeds, that associated with America’s deepest social division.

The report also goes on to discuss NCLB waivers and the role their relevance to achievement gaps moving forward.



June 20, 2013 in Equity in education | Permalink | Comments (0)

Chicago Teachers' Lawsuit Moves Forward in the Midst of the District's Ongoing Reforms and Closures

Last week, I posted on Chicago's new five pillar plan to turn around the district.  Tuesday, a federal district court, in Chicago Teachers Union, Local no. 1 v. Board of Educ. of City of Chicago, 2013 WL 3004943 (N.D. Ill. 2013), is allowing teachers and their union to continue to have a voice in opposition, at least in regard to teacher layoffs.  A class of African American teachers and staff filed suit against the Chicago Board of Education “claiming that Board violated Title VII of the Civil Rights Act of 1964 . . . when it instituted a layoff plan that resulted in termination of the employment of a number of African American teachers and paraprofessionals." Most recently, the school board filed a Rule 12(b)(1) motion to dismiss the Chicago Teachers' Union as a party plaintiff, asserting that it lacks standing to pursue its claim. The court denied that motion on Tuesday.  The court has yet to rule on whether it will grant class certification to the African American teachers and staff, but has scheduled a status hearing for June 25, 2013.


June 20, 2013 in Cases | Permalink | Comments (0)

Recent scholarship

'The Last Acceptable Prejudice': Student Harassment of Gay Public School Teachers

Matthew D. Bernstein (Univ. of New Mexico), has posted 'The Last Acceptable Prejudice': Student Harassment of Gay Public School Teachers. Here is an excerpt of the abstract on SSRN:

In the United States, where the “marketplace of ideas” is a key social philosophy, few Americans receive the benefits of attending public schools with “out” gay and lesbian teachers. Even in an era where civil rights for homosexual public employees are increasing, more than one quarter of adults in the United States continue to believe that school boards should be permitted to fire teachers known to be homosexual. Amidst a permissive legal climate that too easily puts aside the rights of teachers in a myopic focus on students, incidents where students harass teachers based on the teachers’ sexual orientation go virtually unpunished. While states are increasingly protecting homosexual public employees through non-discrimination statutes, only federal guidance in the form of Title VII protection or a national non-discrimination statute are sufficient to properly shield teachers and institute a truly democratic classroom.

The University Curriculum and the Constitution: Personal Beliefs and Professional Ethics in Graduate School Counseling Programs

In The University Curriculum and the Constitution: Personal Beliefs and Professional Ethics in Graduate School Counseling Programs, the authors examine recent cases in which graduate students in school counseling programs argued that they could interpret counseling profession's Code of Ethics differently than their program faculty because of the student's religious beliefs, even though the Code was a part of the graduate program to which they voluntarily applied and enrolled. The article discusses the intersection of personal beliefs on gays and lesbians as counseling clients and professional ethics in higher education graduate programs. Todd A. DeMitchell, David J. Hebert, Loan T. Phan, The University Curriculum and the Constitution: Personal Beliefs and Professional Ethics in Graduate School Counseling Programs, 39 J.C. & U.L. 303 (2013).

Teaching Creation, Evolution, and the New Atheism in 21st Century America: Window on an Evolving Establishment Clause

Edward J. Larson (Pepperdine) discusses the "third generation" religion-in-schools controversies: the rise of the intelligent design movement. Professor Larson writes, "This new phase of the controversy is testing basic principles of Establishment Clause jurisprudence, particularly the purpose prong of the Supreme Court's Lemon test. He explores this emerging third phase of the creation-evolution controversy by examining how lawsuits have impacted the interpretation of secular purpose; the constitutionality of so-called academic freedom statutes; and emerging limits on anti-creationist official acts. Prof. Larson's article can be found

Tax Credit Scholarship Programs: A Model Statute for a Better Program

Hillel Y. Levin (Univ. of Georgia), has posted Tax Credit Scholarship Programs: A Model Statute for a Better Program (Education Law and Policy Review, forthcoming). In the article, he examines state tax credit scholarship programs that allow taxpayers to receive tax credits for contributing to student scholarship organizations. He offers a model statute for an improved tax credit scholarship program.

Clark Kerr and Me: The Future of the Public Law School

UCLA Law Dean Rachel Moran remembers former University of California President Clark Kerr and his vision for public higher education in a speech titled Clark Kerr and Me: The Future of the Public Law School, 88 Ind. L.J. 1021 (2013). Dean Moran applies Kerr's views to her own convictions about the unique mission of public law schools and ways to secure their future.

Applying the “Paradox” Theory: A Law And Policy Analysis of Collective Bargaining Rights and Teacher Evaluation Reform from Selected States

Mark Paige (Assistant Professor, Department of Educational Leadership, U. Mass-Dartmouth), Applying the “Paradox” Theory: A Law And Policy Analysis of Collective Bargaining Rights and Teacher Evaluation Reform from Selected States, 2013 B.Y.U. Educ. & L.J. 21 (2013). Professor Paige analyzes reforms to legislative changes about  teacher evaluations and argues that excluding unions from teacher evaluations in collective bargaining negotiations will have the unintended consequence of impeding reforms and change.

Parental Choice, Catholic Schools, and Educational Pluralism at the Dawn of a New Era in K-12 Education Reform

In the Notre Dame Journal of Law, Ethics & Public Policy, John Schoenig (Director, Program for K-12 Educational Access and Faculty, Alliance for Catholic Education) examines the "curious" shrinkage of Catholic school enrollment (there are approximately 460,000 “empty seats” in Catholic schools nationwide), where more than one third of those empty seats are in states that have parental choice programs. John Schoenig, Parental Choice, Catholic Schools, and Educational Pluralism at the Dawn of a New Era in K-12 Education Reform, 27 Notre Dame J.L. Ethics & Pub. Pol'y 513 (2013).


June 20, 2013 in Scholarship | Permalink | Comments (0)

Wednesday, June 19, 2013

School vouchers face reality in Alabama

When legislators passed the Alabama Accountability Act this year, the law was hailed as a chance to give students in low-performing schools vouchers to transfer to better schools. To identify low-performing K-12 schools, the State Department of Education listed 78 schools that were in the bottom six percent of schools in three of the past six years. The reality of the voucher law hit yesterday when Alabama officials made clear that most of the students in the listed schools will not be able to transfer to better public schools. Of the 78 schools on the "failing schools" list, 25 are under either a federal desegregation order or litigation, which means transfers in and out of those schools will be governed by court orders. Other public schools nearby may also be in the "failing" category. And the other reality is that there may also be no nearby private school to transfer to. For example, one of the failing schools is Bullock County High School. The nearest private school is Conecuh Springs Christian School, where all but ten of the white students in Bullock County go. Conecuh Springs' principal says that her school could take about 20-30 of Bullock County's 1,453 students, but for the rest, the nearest private school is an hour away.

Meanwhile, the demographics of the seventy-eight schools identified as "failing" by the Alabama Department of Education are out, and the schools are in predominately black or Latino areas. Of the 78, reports, only one school has a predominately white student body. One.

But could students use vouchers at private schools? Looking at the average price of private school tuition nationally and locally, probably not. Vouchers in Alabama will come in the form of tax credits, which means parents have to pay upfront for private school tuition. Most of the children in the state's failing schools are living at poverty level (for example, the lowest percentage of children receiving free or reduced meals in the identified failing schools is 78%). Families at the poverty line will not have the $500-$1,000 sign up fees required at most private schools or the upfront private tuition of $3,500-$10,000, plus book, meals, and other fees.

During the school voucher debates, Sweden was cited as a model universal choice/school voucher program. But the Swedish voucher system is a long way from Alabama's law: in Sweden, schools take children on a first-come, first-served basis and do not charge upfront fees. Sweden's schools, at least on the face of the law, have to take students as they apply. Alabama's schools are free to say no to transferring students with school vouchers and not necessarily for discriminatory reasons. Many educators feel that student success is increased when class sizes are small; accepting a large number of new transfers will alter that balance.  Read more about the Alabama Accountability Act here. Detailed information is also available in the Arise Citizen Policy Project's report on the troubled birth of the Act and predictions for its future here.


June 19, 2013 in News, State law developments | Permalink | Comments (0)