Saturday, July 20, 2013
While this case is grounded in criminal law and procedure, the school setting here was critical in the investigation of the crime and sentence. In Walker v. Maryland, Maryland's highest court ruled that 1) a search of a teacher aide's unlocked desk did not violate the Fourth Amendment, and 2) that Maryland's statute defining sexual abuse of a minor includes precursory conduct such as writing romantic notes to a third grader. No. 13-K-10-50260 (Md. July 8, 2013).
A teacher found some romantic notes written by Walker, a special education teacher's aide, in a third grader's school desk. When the student's mother searched her child's belongings at home, 28 more notes written by Walker were found, professing his love and a desire to take the child to Las Vegas. The school principal called the police and later consented to a search of Walker's unlocked desk. The Maryland Court of Appeals found that Walker showed no subjective expectation of privacy in the contents of his desk. Although aides can lock their desks, Walker choose not to do so. The court also reasoned that the desk was in a "heavily-trafficked school setting" and labels on the desk's drawers indicated that there were items within that other teachers might need, such as supplies and utensils (rather than solely personal items). The court noted that Walker presented no evidence showing his subjective expectation of privacy.
Walker received 13 years (6 suspended) at a bench trial for violating Maryland's sexual abuse of a minor statute. Walker challenged his conviction for sexual abuse based solely on the notes that he wrote to the student. The notes were not sexually explicit. The Maryland court interpreted the child sexual abuse state to encompass "a wide range of behavior that might not otherwise be criminal," including creating a sexually exploitive relationship. The court found that Walker created such a relationship with the student even though there was no evidence of physical touching. The numerous notes that contained Walker's "passionate and obsessive comments" were enough to establish exploitation under the statute.
Friday, July 19, 2013
Court Rejects English Language Learner and Segregation Claims, But Accepts Discrimination in Gifted and Talented
After eight years of litigation against a Chicago area school district, the Mexican American Legal Defense and Education Fund has a final decision, but it was not the one it was wanting. The district court in McFadden v. Board of Educ. for Illinois School Dist. U-46, 2013 WL 3506010 (N.D.Ill.,2013), ruled against plaintiffs on their two major claims: segregation and an inadequate English Language Learner (ELL) program.
I found the court's opinion curious, however, in its tone and approach to the evidence. In regard to plaintiffs' challenge to the student assignment and facilities plan, the court wrote:
It is clear to the court, considering all of the evidence and the extensive testimony presented at the trial, that the professional staff of the District, including its superintendent and board, were dealing with an increasing population generally, an increasing number of students who required special language support, a budgetary crisis, and an active, involved community. Regardless of the decisions ultimately made by the District, some portion of the population would be unhappy. The ultimate decision to adopt a neighborhood school concept that minimized busing and allowed children to attend schools nearer to their homes was not objectively unreasonable, nor in this court's opinion caused by any racial animus or preference by the District.
The court is correct that some group will always be unhappy, but this does not answer the question of whether a school district has catered to one segment of the population because it wants to make it happy and is less concerned about making others unhappy. As I argued in my early scholarship, the state just as surely violates equal protection by being unsympathetic or deliberately indiffernt to a particular racial or ethnic group's interests as it does by intentionally targeting that group for unequal treatment. The court in McFadden pays little attention to this principle and or the fact it is consistently racial and ethnic minorities who must settle with being "unhappy" with school decisions.
The court's ELL analysis, likewise, reads as though the court was more than willing to excuse district failures. For instance, it writes "no program of this size can be expected to be free of criticism or deficiencies." Sure, criticisms alone don't tell us much, but if deficiencies exist, a district must justify them under the requirements of the Equal Education Opportunities Act and the prevailing three-prong standard from Castenada v. Pickard.
Applying that standard, the court wrote, "although plaintiffs have identified a number of problems and concerns about the ELL program as it existed prior to the close of discovery in 2009, the court finds that by that time the District had established and recognized programs in place to educate its non-English speaking students in its educational programs." Again, the question remains as to whether those programs were effective in helping students to overcome language barriers, not simply whether programs were in place. More poignantly, did the new programs remedy the problems that plaintiffs had identified through discovery?
One problem plaintiffs identified was insufficient numbers of qualifed ELL teachers. On this question the court wrote:
Plaintiffs also complain about the lack of leadership and deficiencies in professional development and in hiring qualified ELL teachers. The court has reviewed this evidence, and finds that plaintiffs have failed to prove deficiencies sufficient to constitute violations of the EEOA. It should be noted, as recognized by a number of courts, that there is a national shortage of qualified ELL teachers, and that the District has gone to great lengths to recruit such teachers for its increasingly diverse student body.
First, the court cites to dated cases for the proposition that there is teacher shortage. Even if there still is a general shortage, undifferentiated national trends tells us little of whether this school district has a justification for not complying with an educational duty. Second, the court in Teresa P. v. Berkeley, to which the court cites, excused the failure to hire certified teachers because other metrics suggested the teachers were competent and, more important, the data suggested that student achievement was high in the district. Thus, the lack of certified teachers was not interfering with the educational program. In other words, there is no free standing exemption from hiring qualified language program teachers, which the McFadden court implies. In fact, the failure to hire appropriate staff was one of the clearest and most powerful violations recognized in the seminal Castaneda decision, which McFadden indicates it is applying. The court in McFadden does not discuss student achievement, nor does it offer a detailed justification of the district's hiring woes.
Finally, the court indicates:
Plaintiffs also attack the District's alleged violation of the “90% rule,” a requirement by the ISBE regulations that ELL classes be 90% of the size of the general classrooms in the building in which they are situated. First, a violation of a state regulation does not necessarily equate to a violation of the EEOA. Plaintiffs are required to prove that such a violation, if it occurred, impeded the students' ability to learn English or participate equally in the District's instructional programs. Although plaintiffs have introduced evidence that the 90% rule was violated in certain instances, the evidence fails to show a systemic failure that results in an EEOA violation.
Here, the court appears to muddle its analysis. It is correct that a violation of the 90% rule does not automatically equate with an EEOA violation, but the Castaneda standard's second prong requires a state or district to properly implement its chosen ELL program. Schools have wide discretion in chosing their method of ELL instruction under Castaneda's first prong, but once they choose a method, Castaneda indicates they must implement it consistent with their chosen education theory. If the 90% rule is the state and district's chosen method, they are expected to abide by it. If they violate it, the burden presumably should be on the district to justify its deviation, not on the plaintiffs to show that the deviation was causing special harm.
The district court's analysis of the gifted and talent program was straightforward. The school district was placing ELL and non-ELL students into different gifted and talented programs, even including students who had phased out of the ELL program. The court found this practice discriminatory and unable to pass strict scrutiny.
Thursday, July 18, 2013
David Aronofsky (Montana) and Sam Schmitt (Montana 3L), The Chicago Tribune v. The University Of Illinois: The Latest Iteration of New Textualist Interpretation of FERPA by the Federal Courts, 39 J.C. & U.L. 567 (2013). Excerpted from the abstract:
The Chicago Tribune Co. v. The Board of Trustees of the University of Illinois is the most recent iteration of a trend in which the Family Educational Rights Protection Act (“FERPA”) is interpreted by the federal courts according to New Textualism. The object of this approach is to interpret the meaning of a law's text with text-linked or text-based sources rather than legislative history or Congressional intent. The last twenty years of federal court FERPA case law evidences a shift toward a textualist approach to FERPA interpretation whereby softer approaches to statutory interpretation: legislative history, Congressional intent, and policy objectives are secondary for resolving legal disputes in the federal judiciary. Consequently, FERPA interpretation by federal circuit courts has also become highly uniform. This article argues that the Chicago Tribune fits neatly into the federal court trend towards principally text-based interpretation of FERPA. Consequently, state courts faced with conflicts requiring the resolution of FERPA disputes to apply state law correctly can rely on a straightforward method for properly interpreting the federal law.-ld
Colin Miller, over at Evidence Prof Blog, alerted me to a new documentary series on CNN by Morgan Spurlock. Spurlock is the award winning director and protaganist of Super Size Me, a documentary on fast food. Spurlock is now doing shows on a host of social issues for CNN. Up this week is education. The CNN promotion for the education show states:
In preparation for teaching a classroom full of 25 eighth graders, Morgan Spurlock learned about the immersive approach that teachers at Williamsburg Collegiate Charter School in Brooklyn, New York take in order to keep their students engaged, interested and stimulated – every minute of every day.
Those techniques include hand claps, snaps, and affirmations of success among fellow students. And free time – which is rare – is typically spent reading.
Since I have no idea what message the show will send, this notice is not an endorsement, but I thought it might be of interest to some readers. It will air Sunday, July 21 at 10 p.m. ET. For more details, see here. I would encourage and welcome a guest blog next week by any one who watches it and wants to offer commentary.
I can't seem to practice what I preach. After warning you off of daily updates on the reauthorization of the Elementary and Secondary Education Act in favor of the Department of Education waivers, I am now giving you my own update. It is not, however, because I believe the competing bills will go anywhere, but because I believe the bills say something about education values and agendas.
Eric Cantor has introduced an amendment that would allow low-income students to take their Title I dollars to their public school of choice, which includes both charters and traditional public schools. Alyson Klien of Ed Week reports: "Folks had originally expected Cantor to introduce an amendment that would allow parents to take their Title I dollars to a private school, as well as a traditional public school or charter. But that idea met with big resistance from some moderate members of the House Republican caucus, advocates say. And two Republican lawmakers—Rep. Rob Bishop of Utah and Matt Salmon of Arizona—have introduced amendments that would allow students to bring their Title I dollars to private schools. Will Cantor's public school choice amendment be sufficient to help the bill garner support from conservatives? Stay tuned."
The free flow of Title I dollars to private schools is an attack on public schools. Conservatives argue that such a move just gives poor kids the same option as wealthy kids. But even with a voucher or Title I portability, poor kids will not have the same option as wealthy kids. Voucher program data consistently shows that most of these students end up in religious schools. They end up there not because they want a religious education, but because those are the only private schools willing to take them at a reduced rate. This is not to criticize religious schools, but to point out this is not really about giving poor kids options. Instead, it is either about pushing a religious agenda or intentionally moving federal money out of the public system and into the private system. The latter motivation, which seems like the strongest of the two motivations, represents lost faith in public schools and/or an attempt to undermine them.
I find it heartening that enough moderate republicans balked at this idea that Eric Cantor is moderating his choice position. I find it disheartening that two other republicans have stepped up to take Cantor's place and will introduce similar legislation anyway. Hopefully, they will remain on the margins. Regardless, the other question is whether Cantor's moderated position really is moderate. Is easing the move of federal money out of traditional public schools into charter schools one that represents a commitment to public schools, or is it just the first step toward the grand initial plan of moving money to private schools?
To be clear, the concept of funding portability is an appealing one to almost all civil rights advocates. NCLB included a transfer provision that many thought would help integrate and diversify schools, but it didn't work because the receiving schools outside of the school district were not obligated to accept transferring students. If Cantor's provision creates a greater incentive for suburburban schools, for instance, to enroll urban students, it could be an important move for integration and diversity advocates. It is hard for civil rights advocates to not be skeptical of anything that Cantor might introduce, but school choice is the one area where conservatives and civil rights advocates have been able to find common ground. I'll keep my fingers crossed.
Wednesday, July 17, 2013
Two weeks ago, I posted on the Stanford Center for Research on Education Outcome's (CREDO) new charter school study, which indicated that, on the whole, charter schools have shown improvement since 2009. The prior 2009 CREDO study, in contrast, had reached less than flattering findings regarding charters and had been a key source of evidence for charter opponents. I point this out because it meant that the new, marginally positive results were not coming from a charter school "cheer leader." On that basis, I gave the new findings special attention and the benefit of the doubt.
Those far more expert than myself in statistical methods, however, have dug into the report and begun to raise serious questions. In fact, the report is now drawing criticisms from all sides. Some charter school advocates will still charge that the report does not give charters enough credit and understates the gains they are making. In other word, the report may be positive news for charters, but not positive enough. Others charter advocates take a slightly different route and wildly exaggerate the study's findings. The National Alliance for Public Charter Schools posted this news blurb:
Stanford University Study Finds Public Charters Better Serve Disadvantaged Student Populations
A study released by the Center for Research on Education Outcomes (CREDO) at Stanford University found that public charter school students in 27 states are outperforming their traditional public school peers in reading while making significant gains in math.
Sorry, but the study does not exactly say that. It says charter schools in these states have shown more gain than traditional public schools, but charters were starting from a lower point. They have not, however, surpassed traditional public schools in achievement. The new CREDO study finds that, on the the whole, only 25% of charters outperform public schools in reading and only 29% outperform public schools in math.
One leading charter school proponent is neither overstating or applauding the report. Instead, it is calling the study into question in a way that undermines the entire study and deprives charters of any positive spin they might put on it. Jeanne Allen, director of the pro-charter Center for Education Reform, says that "[t]he way that CREDO has manipulated data and made conclusions about policy based on that data is absolutely 'uncredible.' " A news release on the Center's website adds:
The new CREDO report, an update of one previously issued in June 2009, is again extremely weak in its methodology and alarming in its conclusions. . . No matter how well-intentioned, the CREDO research is not charter school performance gospel . . . Similar to its failed 2009 effort, this CREDO study is based on stacking mounds of state education department data into an analytical process that is decidedly lacking in rigor.
This criticism from inside the charter school community is causing significant internal dissension, as reported by NPR.
The National Education Policy Center, a non-partisan academic research center at the University of Colorado, has also raised more pointed and serious questions that suggest the gains reported may not exist. In a release from yesterday, Andrew Maul & Abby McClelland offered this overall review:
The study finds a small positive effect of being in a charter school on reading scores and no impact on math scores; it presents these results as showing a relative improvement in average charter school quality since CREDO’s 2009 study. However, there are significant reasons for caution in interpreting the results. Some concerns are technical: the statistical technique used to compare charter students with “virtual twins” in traditional public schools remains insufficiently justified, and may not adequately control for “selection effects” (i.e., families selecting a charter school may be very different from those who do not). The estimation of “growth” (expressed in “days of learning”) is also insufficiently justified, and the regression models fail to correct for two important violations of statistical assumptions. However, even setting aside all concerns with the analytic methods, the study overall shows that less than one hundredth of one percent of the variation in test performance is explainable by charter school enrollment. With a very large sample size, nearly any effect will be statistically significant, but in practical terms these effects are so small as to be regarded, without hyperbole, as trivial.
More specifically, they point out that the study threw out 15% of charter school students from the study because it could not produce a "virtual twin" match in the regular public schools. These excluded students, however, had scores that were .43 standard deviations below other charter school students. In other words, many of the weakests charter school students were not even counted.
Second, (if I understand it correctly) the study's statistical model compared individual students in charter schools to individual students in public schools. Maul and McClelland seriously question this model, however, because it does not account for classroom variables. For instance, what if the charter school classroom had a higher average soci0-economic status than the public school classroom? If this were the case, any increased learning in the charter could easily be a result of the positive peer effects of the classroom demographics rather than the charter school's instructional method or structure.
Third, they point out that the CREDO study's "virtual twin" methodology does not account for error rate in students' standardized test scores. In other words, students with the same standardized test scores are not always similarly situated and, thus, statistical modeling is necessary to adjust for that. CREDO did not. Maul and McClelland's full review is available on the National Education Policy Center here.
Reports of this scale and importance will always generate criticism, but these criticisms seem to strike hard at the core of the report. If these criticisms are valid, one must wonder why CREDO made these leaps. Did it feel compelled to reach more favorable findings than in 2009? If so, why? Or was this just poor research design? Either way, this new study may be destined to live under a cloud of doubt, rather than become a definitive study like its 2009 counterpart.
Tuesday, July 16, 2013
The Huffington Post blog Black Voices today focuses on the massive school shutdowns in Chicago and Philadelphia that Professors Black and Holley-Walker have been covering on this blog here and here. In addition to discussing the impact of the school closings in New York City, Chicago, Philadelphia, Washington D.C., and Sacramento, writer Shaun Ossei-Owusu (ABA Doctoral Fellow) shares this graphic from the National Opportunity to Learn Campaign to give another perspective to the "dry numbers":
Some of you may have caught the edweek story last week discussing the upcoming uncertainties regarding the merger of the city and county school districts in Memphis. Daniel Kiel, University of Memphis School of Law, has been part of the process since the beginning and quoted in the story. He was kind enough to share the following overview with us:
These are interesting times for public education in Memphis, to say the least. A merger of a 100,000-student urban district and a 45,000-student suburban district that has been two years in the making was completed earlier this month and the two districts now operate together as Shelby County Schools. While the details of this transition are fascinating in many respects, the dynamic that stands out for me is that the landscape seems to be both looking into the future and being tugged into the past at the same time.
The merged district will be the largest player in an increasingly decentralized system of schools. A growing number of charter schools along with the state’s Achievement School District will serve thousands of students in the area, essentially removing those students from the merged district. This, of course, is not unique to Memphis. However, the disruption of the merger allowed for the imaging of an administrative structure that seeks to maximize cooperation among school operators – district, charter, ASD – in order to both share best practices and control the area’s education spending. As more urban districts seek to find the right balance between centralization and school-level autonomy, the proposed (and admittedly untested) model could be a look into the future. [full disclosure- I served on the commission charged with planning the transition]
However, even as the merger was being planned, a parallel effort to create municipal districts in several suburban municipalities within the county emerged. Though that was stalled briefly by a federal court decision, changes in state law seem to have the cleared the path for new districts to open as early as fall 2014. The push for municipal districts has uncovered emotions and arguments about local control, educational equity, and race that not been this prominent since the busing crisis of the early 1970s, though they have likely always been there. On the immediate horizon are the opening of the school year in a month as well as votes in the suburban municipalities about whether to pursue the new districts. In the long term, the experience could provide a case study for a large scale attempt at contemporary education reform.
Professor Kiel also has two forthcoming articles on the merger. I will share them as they become available.
Monday, July 15, 2013
I am a couple of weeks behind on this one, but Arne Duncan granted New Hampshire's application for a No Child Left Behind waiver at the end of last month. That brings the number of states with waivers or flexibility to 39. See here for the full list on details on each.
These waivers continue to be incredibly important. While a lot of news has come out of the Senate and House over reauthorization of the Elementary and Secondary Education Act (ESEA) during the past few weeks, much of it looks like grandstanding to me. It is not clear that the House and Senate will come anywhere close to passing legislation on which they could agree. If that is the case, the net result is that the NCLB waivers are the de facto reauthorization of ESEA, as they are setting the terms by which school districts and states must act over the coming years. The Obama administration seems perfectly content with this result. Some republicans likely are as well, as many of the waivers contain the sort of terms that the would favor in ESEA reauthorization. In short, rather than pouring over the daily and weekly updates on various ESEA bills moving forward in the House and Senate, one's time might be better spent on the Department of Education's waiver and flexibility page.
Sunday, July 14, 2013
After Wellston dissolved, most of its students moved to the Normandy School District, which, along with Kansas City and St. Louis suburban district Riverview Gardens, are now among the districts that lost accreditation. (The St. Louis Public Schools district, with more than 23,000 students, briefly lost its accreditation, but was granted provisional accreditation last October.)The law allows home districts to designate one school district to which they will provide free bus transportation. This has been a contentious issue as well, as both unaccredited districts, Normandy and Riverview Gardens, have chosen school districts 20 miles away (Francis Howell and Mehlville, respectively), skipping over closer accredited school districts. The Normandy district says that it considered size, academics, and diversity in choosing the Francis Howell district. (98% of Normandy district students are black; 86% of the students in Francis Howell are white.) Children in Normandy's district may choose to attend a closer district, but will have to find and fund their own way to school. The Missouri Supreme Court's ruling requires districts to accept transfer students even if their classes are already full.
Normandy's choice of the Francis Howell district is turning into a school district version of "Guess Who's Coming to Dinner." In a Francis Howell school board meeting last Thursday, angry parents protested the transfers, arguing that their district's test scores would be lowered when Normandy's students test scores are incorporated with Francis Howell's, and that Normandy students would introduce violence and drugs to their schools. One parent called for the installation of metal detectors.
Whatever conclusion one comes to about the parents' reactions, they are explicable. The St. Louis media featured Normandy High School's problems prominently over the last year; one article in May branded the school, Normandy High: The most dangerous school in the area. Responding to the controversy, two Missouri legislators introduced bills this month to stop those transfers; one legislator called it is "a slap in the face" for Francis Howell to be forced to accept Normandy students.
Friday, July 12, 2013
In Scott B. v. Bd. Of Trustees of Orange Cnty. High School of Arts, 158 Cal.Rptr.3d 173 (Ct.App. Calif. 2013), a student challenged his dismissal/expulsion from a charter school. He had accumulated enough demerits under the school code to be removed and then, on top of that, brought a knife to school. Prior to his removal, the school conducted a manifestation review, per the IDEA, to determine whether his behavior was a manifestation of his disability. Finding that it wasn't, the school dismissed/expelled him. He then appealed to the school board, but was denied a hearing. His challenge before the court was that this denial of a hearing was in violation of the state's disciplinary statutes and federal due process.
The court, however, reasoned that:
Dismissal from a charter school does not implicate these concerns to the same degree as expulsion. Unlike public schools generally, “OCHSA is a school of choice. No student is required to attend.” When a student is dismissed from OCHSA, the student is free to immediately enroll in another school without the loss of classroom time. Thus, dismissal from OCHSA need not and should not delay Scott's education. The May 16, 2011 letter informing Scott's mother of his dismissal instructed her to immediately enroll Scott in another school. Scott's transcripts from OCHSA were attached to the letter. The parties have not cited us to any statute requiring a new school be notified of a dismissal from a charter school.
I find this reasoning spurious for a couple of reasons. First, analogous arguments have been made in regard to students who are expelled from a regular school, but who then are assigned to an alternative school. Some courts have found that due process is not triggered, while others have seen through this argument. The latter are far more persuasive and intellectually honest. Second, numerous state legislatures and local school districts recognize that treating assignment to alternative school as something other than an expulsion or suspension is a fiction. Thus, they affirmatively extend due process rights to these students. See Maureen Carroll, Racialized Assumptions and Constitutional Harm: Claims of Injury Based on Public School Assignment, 83 Temp. L. Rev. 903, 914 (2011). These states outweigh the number of courts finding otherwise. Third, if charters are fully public schools, removing a student from the school should implicate due process in the same way that it would in a regular public school. Finally, the fact that a student can enroll in another school after being dismissed from the charter does not end the matter. Many state statutes allow an expelled student to enroll in another school or district, assuming the school or district will accept the student. I am not aware of the opportunity or potential to enroll elsewhere as ever having been a basis a court to hold due process is not triggered.
Thursday, July 11, 2013
The number of students enrolled in Florida's voucher program grew by a stunning 27 percent this year. A new state department of education report on the program indicates:
In 2012-2013, Step Up For Students awarded a total of approximately $207 million in FTC scholarships to 51,075 students enrolled in 1,338 participating Florida private schools. The 51,075 students in 2012-2013 is an increase of 10,827 students over the 2011-2012 student total of 40,248 as reported in the June 2012 FTC Quarterly Report. This represents an enrollment increase of 27%. The 1,338 private schools participating in 2012-2013 represent an increase of 10% from the 1,216 private schools that participated during the 2011-2012 school year.
The growth appears to be a result not of students leaving the public school system, but of students who never entered the public school system. "Students enrolled in Kindergarten through Grade 3 make up approximately 53% of the scholarship recipients." The racial and ethnic participants in the program are 33 percent African-American students, 35 percent Hispanic students, 25 percent white and 7 percent other. Religious schools make up 82.5 percent of the voucher school recipients. All of these are interesting numbers given that the state supreme court in Bush v. Holmes, 919 So. 2d 392 (Fla. 2006), had struck down a previous verion of the state's voucher program as violating the state's constitutional duty to deliver a uniform and adequate public school system.
For more commentary on the report, see here.
Education Week recently reported on grassroots campaign ActionCamp 2.0, that seeks reform of schools' zero tolerance discipline policies. ActionCamp is one of the network of groups at Dignity in Schools (DSC) that want to dismantle the school-to-prison pipeline starting with school mandatory discipline policies. DSC member organization Portland Parent Union successfully pushed this year for the passage of Oregon bill HB 2192-B to remove mandatory expulsion requirements from the state's school discipline statute. The Oregon legislation will go into effect in July 2014. Read more about Dignity in Schools.
The Convention on the Rights of Persons with Disabilities: will ratification lead to a holistic approach to postsecondary education for persons with disabilities?
Jason Palmer (Stetson), 43 Seton Hall L. Rev. 551-594 (2013). An edited excerpt from Professor Palmer's abstract:
The Convention on the Rights of Persons with Disabilities (CRPD), the first human rights convention of the 21st century, is one of the most far-reaching international documents in history for the protection of marginalized individuals with disabilities. The CRPD represents a paradigm shift in the area of disabilities by moving from a medical or social approach to persons with disability, to a human rights model. The holistic approach of the CRPD, as implemented through the principles of universal design, is the most efficient and cost-effective method for benefiting all persons with or without disability in higher education. This article is the first to conceptualize and envision a human rights approach to United States higher education and disability law through the holistic application of universal design in learning and instruction.
Joshua E. Weishart (W. Virginia), Stanford Law Review, forthcoming. An edited excerpt from Professor Weishart's abstract:
In the pursuit of educational justice, practice often outpaces theory. Theories of educational equality and adequacy have been understood to impose different demands. As generally conceived by equality theorists, justice dictates that all children have equal educational opportunities. Adequacy theorists typically construe the demands of justice as requiring that all children have access to a certain threshold of educational opportunities. Hence, the decades-long equality versus adequacy debate lingers over seemingly irreconcilable conceptual differences and legal impracticalities. My aim in this article is to enumerate the points of convergence between equality and adequacy and to show that their residual conflicting tenets are unsustainable in practice. Hence, equality and adequacy are not mutually exclusive; indeed, I contend that they are mutually reinforcing.
Wednesday, July 10, 2013
IN LIGHT OF FISHER: WHY THE BLACK IMMIGRANTS SHOULD BE DISTINGUISED FROM ASCENDANT BLACKS FOR ADMISSIONS PUROPOSES
Last week I discussed the changing racial and ethnic ancestry of blacks on affirmative action. In that piece, I noted how quickly Black Multiracials and Black Immigrants (anyone with a foreign-born black parent) will soon constitute the overwhelming majority of black students at many (most?) selective higher education programs, if they don’t already. Earlier this week, I discussed how the changes in the way the Department of Education requires educational institutions to collect and report racial and ethnic data that went into effect in the fall of 2010 requires a new discussion about how to treat Black Multiracials in the admissions process. In this one, I want to argue that differences between Black Immigrants and Ascendant Blacks (those with two native-born parents who were considered black as defined by the one-drop rule) means that these two groups should not be treated alike for purposes of affirmative action.
In 1960, there were only 125,000 foreign-born blacks, who made up 0.7 percent of the black population in the U.S. In 2010, however, there were almost 3,600,000 of them and they made up 8.8 percent of the black population. Foreign-born blacks also have about 1 million U. S.-born children.
Black Immigrants share the commonality of being descendants of Africa with Ascendant Blacks. Nevertheless, there are a number of very important economic, social and cultural differences between the two groups. To begin with, the family income of foreign-born blacks is about 25 percent higher than that of native blacks. In addition, foreign-born blacks are far more likely to have college degrees than native blacks. Indeed, Africans are almost two and half times more likely to have college degrees than native blacks. The largest differences between Black Immigrants and Ascendant Blacks, however, may be in their socio-cultural experiences.
In Justice O’Connor’s opinion in Grutter, she explained why it was possible for colleges and universities to consider race and ethnicity in the admissions process. She stated:
“[j]ust as growing up in a particular region or having particular professional experiences is
likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters. . . . By virtue of our Nation's struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School's mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.”
Clearly, the history of discrimination that justifies the use of racial classifications that O’Connor referred to was that which took place in the United States. This seems obvious. After all, no one seriously contends that selective higher education programs could justify affirmative action in the United States to target the effects of oppression in other parts of the world, including, for example, the exploitation of Koreans in Japan, the negative effects of untouchability on Dalits in India, or British imperialism in Africa or the New World. Thus, it is the experiences of individuals from underrepresented minority backgrounds derived from our nation’s struggle with racial inequality that explain why race and ethnicity can be considered. These experiences also explain why these groups are likely underrepresented in the first place.
There is no question that foreign-born blacks have their negative experiences with racism in the United States. Nevertheless, having grown up and matured in their countries of origin, Black Immigrants who come to the U.S. as adults do not have extensive years of experiencing the impact of the historical discrimination encountered by blacks in the United States. In immigrating, Adult Black Immigrants encounter conflicting sociological forces. They come to a land with a long history of voluntary immigration. Yet, they also come to a place where their race places them at the bottom of a racial hierarchy.
As voluntary immigrants, Adult Black Immigrants tend to have a more optimistic and positive outlook on their conditions in American society than Ascendant Blacks. For many Adult Black Immigrants, the racism and discrimination they encounter is part of cost to obtain the benefits they accrue from choosing to come to the U.S. Since most foreign-born blacks come from countries with substantial black majorities, race does not play an important role in their psychological and emotional development. Coming from countries with substantial black majorities also means that Adult Black Immigrants will be use to seeing blacks wield significant economic, political and educational authority. This may provide them with the empowering expectation that success in society is not tied to race, an idea that Ascendant Blacks with their experience growing up in the United States would find difficult to embrace. Since Adult Black Immigrants mature in their home country, many of them do not bring with them to the United States the strong desire to engage in the fight against the racial injustice here. This is something that was plain to me during my travels through South Africa, where I was the foreign-born black immigrant. While I was subjected to the same race discrimination that black South Africans encountered, I had a huge emotional and psychological distance from the experience of racial oppression there.
The term “Black Immigrants,” includes foreign-born blacks who immigrated as adults, as well as those who immigrated as minors and the children of foreign-born blacks. These latter two groups come of age in the United States and, thus, are exposed to more of the historic experience of being an underrepresented minority with a history of discrimination than their parents. Nevertheless, their foreign-born parent(s) and their foreign heritage are likely to have a very important impact on their experiences of race in the United States. Simply put, it is wrong to equate the experience of history of discrimination in the United States that Ascendant Blacks have undergone with that which Black Immigrants experience. To do so, devalues the experiences of Ascendant Blacks.
Last year, plaintiffs challenged an Arkansas statute that permitted students to transfer to schools outside their district, but limited the students who could transfer. In particular, the statute indicated that:
No student may transfer to a nonresident district where the percentage of enrollment for the student's race exceeds that percentage in the student's race except in the circumstances set forth in subdivisions (f)(2) and (3) of this section
In Teague ex rel. T.T. v. Arkansas Bd. of Educ., 873 F.Supp.2d 1055 (W.D.Ark. 2012), the court applied strict scrutiny and found that the state had a compelling interest in avoiding racial isolation but that the statute was not narrowly tailored. Thus, it struck down the statute.
The legislature then amended the statute. The new statute effectively permits all students to tranfer, but allows districts that are under desegregation orders to opt out of the transfer program, so as to prevent transfers from interfering with their other obligations under law. Another set of plaintiffs have challenged this new statute. Defendants filed a motion to dismiss based on standing and jurisdiction, which the court granted in part and denied in part. Stevenson v. Blytheville School Dist. No. 5, 2013 WL 3324050 (E.D.Ark. 2013). The court did not address any substantive issues, but for the meantime has permitted the case to move forward.
Yesterday, I posted on a new lawsuit challenging Washington's charter school law. I haven't put my fingers on the complaint yet, but I did get some more details on the allegations. Plaintiffs allege that the charter law violates the state constitution because:
1. It improperly delegates the State’s constitutional “paramount duty” to provide for the education of children within its borders to private organizations that are not subject to the requirements and standards in place to ensure that all children receive a constitutionally sufficient education.
2. It also violates the State’s paramount duty to make ample provision for the education of all children within its borders by interfering with the State’s progress toward complying with the Washington Supreme Court directive to the Legislature to fully fund basic educational programs by 2018, as set forth in the 2012 McCleary decision.
3. It unconstitutionally diverts public funds that are restricted to use for public common schools to private charter schools that are not subject to local voter control.
4. It violates the Constitution’s “general and uniform” provision because charter schools are not subject to many laws and regulations applicable to public schools, including many of the provisions defining a basic education.
5. It amends existing state law in a manner not permitted by the Constitution.
6. It violates the constitutional requirement that the superintendent of public instruction “have supervision over all matters pertaining to public schools.”
7. It violates the Constitution because it mandates the use of local voter-approved levy funds for a purpose other than the purpose for which the voters approved the levies.
As I noted yesterday, one of the more unique claims was the notion that it violates the state superintendent's constitutional duties because the statute places charter schools outside of the superintendent's authority. The relevant constitutional clause states:
The superintendent of public instruction shall have supervision over all matters pertaining to public schools, and shall perform such specific duties as may be prescribed by law. He shall receive an annual salary of twenty-five hundred dollars, which may be increased by law, but shall never exceed four thousand dollars per annum.
Wash. Const. Art. 3, § 22. To the extent plaintiffs' characterization of the charter school law is correct, they may have found a relatively unique and strong claim, although the net result could be to just require the state to rewrite the charter law and bring it more squarely under the purview of the state superintendent. On the other hand, seting up an educational structure outside of the superintendent's authority may taint the entire statute and its purpose.
Tuesday, July 9, 2013
Kansas Commissioner of Education Diane DeBacker has asked the state attorney general for an opinion about a new law establishing innovative school districts that will be largely exempt from compliance with state laws. The law, called the Kansas Coalition of Innovative Districts Act (H.B. 2319), went into effect July 1 and sets up a coalition board independent from the Kansas State Department of Education (KSDE). The coalition board can authorize up to ten percent of Kansas' school districts to be "public innovative districts" exempt from compliance with most state public education laws. In a letter to the state attorney general, Dr. DeBacker questioned whether the Innovative Districts Act violates Article 6 of the Kansas Constitution, which gives KSDE authority over "general supervision of public schools, educational institutions and all the educational interests of the state." DeBacker stated that the Act "does not pass constitutional muster because it improperly infringes on the authority of the KSBE and its role in the general supervision of education in the State of Kansas." Modeled on the American Legislative Exchange Council’s “Innovation Schools and School Districts Act,” the new education board may grant exemptions to up to 29 “innovative school districts.” To qualify, districts have to demonstrate how planned innovative measures will improve student achievement.
Last week, a group of plaintiffs filed a lawsuit challenging the constitutionality of Washington's new charter school law. In short, the complaint argues that the diversion of public school funding to private third parties, who are not subject to state standards , accountability, and democratic oversight, is inconsistent with the state's constitutional duty to provide an adequate and "general and uniform" education. The complaint further alleges that depriving the superintendent of public instruction of supervision of charter schools violates his constitutional authority.
Plaintiffs have brought similar challenges against charter schools in other states in the past. While their claim has some theoretical merit, courts have generally sided with the state in these cases, finding that charter schools are public schools as well and how the legislature structures or delegates educational authority is within the legislature's discretion. My quick scan of Washington Constitution this morning did not reveal an specific constitutional authorities or responsibilities of the state superintendant. But if plaintiffs' assertion of such a constitutional duty is correct, they may have found a hook that distinguishes them from other states. I will keep you posted as the case developes. For more on the current story, see here.
IN LIGHT OF THE FISHER DECISION: WHY THE ADMISSIONS PROSPECTS OF BLACK MULTIRACIALS MUST BE ADDRESSED
Last week I discussed the changing racial and ethnic ancestry of blacks on affirmative action. In that piece, I noted how quickly Black Multiracials (those individuals with one non-black and one black parent, as defined by the one-drop rule) and Black Immigrants will soon constitute the
overwhelming majority of black students at many (most?) selective higher education programs, if they don’t already. I suggested that in light of the Supreme Court’s decision in Fisher, now is the time to turn our attention to this issue. In this blog, I want to discuss how conditions have changed with regard to the admissions process of Black Multiracials that makes it imperative to have such a
discussion, regardless of how the ultimate treatment should be worked out.
Race is a socially constructed concept. Nowhere is this more obvious than when dealing with the historical issue of the treatment of mixed-race individuals with some African ancestry in the United States. The current recognition of Black Multiracials as distinct from other blacks is an emerging and relatively recent phenomenon. For virtually the entire 20th century, the one-drop rule determined who was black. As late as the 1960 census, there was no separate category for Latinos. They were classified based on their race, not their ethnicity. Thus, at the time that affirmative action policies were being formulated, 99.4% of Americans were considered either black or white. The one drop rule allowed everyone in American society to know virtually any person’s
race based on their physical appearance. As a result, race was a socially ascribed trait, not a characteristic that resulted from self-identification. As long as American society socially constructed race in this way, regardless of the feelings of mixed-race blacks, simply put, there were no Black Multiracials.
During the late 1980s and early 1990s, a multiracial movement developed that sought to add a separate “multiracial” category to all state and federal forms. According to Kim Williams who
studied this movement, most of the leaders were white women married to black men who did not feel that it was right to identify their children as black. In response to these complaints, in 1997, the federal government adopted new regulations for the collection and reporting of racial and ethnic data (1997 Standards). The 1997 Standards specified that self-identification is the preferred method to determine a person’s race. While the government rejected the inclusion of a “multiracial” category, it did requires that those collecting racial and ethnic data use forms that provide individuals with the opportunity to answer whether they are Hispanic/Latino and then to designate all of the racial categories that apply to them from a list that must include American Indian or Alaska Native; Asian American; Black or African American; Native Hawaiian or Other Pacific Islander; and White. The 2000 and 2010 censuses were conducted consistent with these requirements.
The 1997 Standards also require that other federal agencies adopt new regulations for collecting and reporting racial/ethnic data that comply with it. The Department of Education (DOE) corresponding regulations went into effect in the fall of 2010 (the Guidance). Under the Guidance, individuals who indicate that they are Hispanic/Latino are reported to the DOE as such, regardless of which racial categories they check. Non-Hispanic/Latinos who indicate black and at least one other racial category are included in a new “Two or More Races” category, along with other multiracials. In other words, self-identified Black Multiracials are no longer counted by educational institutions as black. The federal government has abandoned the one-drop rule and forced public and private educational institutions to do so as well.
The 1997 Standards and the Guidance reject the notion that race is a socially ascribed characteristic. Rather they make self-identification the preferred means in which to determine a
person’s race. This change alone may not have been enough to allow individuals with some black ancestry to truly self-identify their race. However, the substantial influx of immigrants of color from Asia, Latin America, the Middle East and North Africa, over the past 50 years altered the complexion and the facial features of American society. In 1960, those who were neither black nor white made up less than 1 percent of the American population. In 2010, they made up almost 24 percent, almost double the percentage of black population. As a result of this new wave of immigrants, the application of the one-drop rule no longer provides a reliable approach to
determine the race of a large number of those who used to be socially ascribed as black. With respect to racial identity, as the 21st century unfolds blacks with lighter skin complexions and racially ambiguous features increasingly encounter the question from others, “what are you?” Thus, the massive new immigration of people of color from the rest of the world helped to
enhance the ability of Black Multiracials to self-identify as multiracial as opposed to black..
As we move beyond the Supreme Court’s decision in Fisher, for purposes of affirmative action it is not whether Black Multiracials self-identify as black or with all of their racial categories that
is significant. What is important is the demise of the one-drop rule, coupled with the ability of individuals to self-identify their race. These developments have created the social reality that Black Multiracials can now choose a racial identity other than “Black or African American.” Because Black Multiracials can choose their racial identity, admissions policies and procedures based on their inability to do so, like affirmative action, need to be adjusted to take into account this new reality.