Thursday, July 31, 2014
To read several of my recent posts, one might get the impression that overly harsh discipline is on the way out. While it is true the Departments of Justice and Education have made important statements and a substantial number of large districts are promising to reform their discipline policies, the prevailing reality is still one of extremely high rates of harsh discipline in most places. As demonstrative evidence, I offer the following from the Columbia Journalism School's investigative paper, New York World:
In more than 40 New York City public schools, long-term suspensions of students for disciplinary infractions are the norm, not the exception.
Last week, the Obama administration announced an expansion of the My Brother's Keeper Initiative, which is aimed at improving educational and life opportunities for African American and Latino boys. Sixty of the nation's largest school districts, which educate about 40 percent of the nation's low income African American and Latino boys, agreed to join the President's initiative. They are committing to expand preschool education, expand positive interventions, increase the number of minority boys in advanced courses, reduce their suspension rates, and increase graduation rates.
More on the story here.
Wednesday, July 30, 2014
The D.C. federal district court granted summary judgment for the D.C. Public Schools (DCPS) in a lawsuit that alleged that DCPS discriminated against minority students by closing schools in minority neighborhoods while allowing predominantly white schools to stay open. The suit's plaintiffs, parents of schoolchildren in the affected districts, also alleged that the school closures funded performance bonuses for teachers in disproportionately white schools and the closures are intended to expland charter schools, which, in turn they allege, are themselves discriminatory institutions. DCPS said that it closed 15 schools and plans to close more because of low enrollment. DCPS said that it would reallocate the savings to put students in more modern facilities and create more programs for the remainining schools. The court rejected the plaintiffs' arguments, stating that both white and minority schools have closed for low enrollment and attributed the pattern of closures in minority areas as "residential segregation, along with changing population patterns, that is largely to blame for the disparities in the closures.” Noting that the school-closure plan was facially race neutral, the court found that the plaintiffs failed to prove that the District’s plan was applied differently because of students’ race or motivated by discriminatory animus. While all of the schools set to be closed are in majority-minority, lower-income neighborhoods, the court noted that the schools' have been "drained of their students by the increasing popularity of charter schools," with 40%-50% of schoolchildren in those areas now attending charter schools. The federal district court found that DCPS could not be found to be "discriminating by attempting to provide all children with access to higher-achieving schools." Finding that DCPS's stated goals-- to increase efficiency and improve the District's overall school services -- were justifiable, the court dismissed the plaintiffs' Title VI and Equal Protection claims. Read the opinion in Smith v. Henderson, No. 13-420 (D.D.C. July 18, 2014) here.
Tuesday, July 29, 2014
The Supreme Court in Engel v. Vitale in 1962 held that prayer led by or encouraged by school officials in public schools is unconstitutional. Nonetheless, the practice continues in a number of public schools today. Recently, for example, a parent complained that a teacher had led prayer at a school banquet in Vigo County, Wisconsin. It took a year and lawsuit by a local foundation to get the district to agree to eliminate teacher led prayer.
Many school districts have appeared eager, for some time, to reintroduce official prayer in some aspect of their schools. The Supreme Court’s recent decision in Town of Greece v. Galloway may have further galvanized them. In Town of Greece, the Court ruled in favor of allowing sectarian prayers at public town meetings. Now, school districts like Pickens County, South Carolina are taking the Supreme Court’s decision a step further, reading it as a green-light to reinstate sectarian prayer in school board meetings as well.
The Department of Education recently exempted three colleges from Title IX's provision prohibiting discrimination against transgender and gender-nonconforming students. George Fox University (Oregon), Simpson University (California), and Spring Arbor University (Michigan), The exemptions come just three months after the Department of Education's Office for Civil Rights issued a guidance letter to colleges on sexual violence that included transgender students as a protected group under Title IX. The colleges were controlled by a religious organization, a ED spokesperson told the Huffington Post yesterday, and Title IX exempts such organizations from compliance if admitting a student or allowing a student to remain at their institutions would be inconsistent with their religious tenets. While all three colleges requested exemptions from admissions and accomodations for transgender students, one of the schools, Spring Arbor, was also granted permission to discipline students for same-sex "activity," extramarital sex, single parent pregnancies, and having abortions. Professor Kristine E. Newhall (UMass Amherst) told the Huffington Post that the concern is not the statutory exemption, but Education Department's lack of clear criteria "about what a school must meet to show [that it is] controlled by a religious organization." Read more here.
Monday, July 28, 2014
AALS Section on Education Law Call for Papers, January 2015 Annual Meeting, Washington, DC
The Section on Education Law of the Association of American Law Schools issues this call for papers in connection with its program at the AALS annual meeting Jan. 2nd-5th, 2015 in Washington, DC. The program topic is “The Higher Education Act at 50.”
When President Lyndon Johnson signed the Higher Education Act in San Marcos, TX on November 8, 1965, he said to the assembled crowd, “And when you look into the faces of your students and your children and your grandchildren, tell them that you were there when it began. Tell them that a promise has been made to them. Tell them that the leadership of your country believes it is the obligation of your Nation to provide and permit and assist every child born in these borders to receive all the education that he can take.” This Program will take stock of that promise on the fiftieth anniversary of its making. A distinguished panel of higher education law professors and policy makers, to include Professor Michael Olivas of the University of Houston Law Center, Professor Philip Schrag of Georgetown University Law Center, and Catherine Lhamon, the Assistant Secretary of Education for the Office for Civil Rights, will consider and discuss the financial, educational, and civil rights aspects of the HEA and its subsequent amendments as we move into the second half-century of its existence.
The American Bar Association is hosting a School to Prison Pipeline Town Hall meeting in Boston on Friday August 8, 20014 at Hynes Convention Center, 900 Boylston Street from 9 am - 11 am. A great lineup is scheduled to speaking, including Professor Sarah E. Redfield;Bob Fleischner, Center for Public Representation; Damon Hewitt, Open Society Foundation; Dan Losen, Civil Rights Project UCLA; Mike Ortiz, attorney Lowell Public Schools; Marlies Spanjaard, Public Counsel; and Gloria Tan.
Their program description states:
The “School-to-Prison Pipeline” has been a crucial concern of parents, educators,
lawyers, judges, ministers, civil rights leaders, and youth advocates for a number of
years. Recently, it has become a major concern of the public across the country due in
large part to the spiraling statistics and the negative impact on children of color. Some
youth advocates have defined the problem as a systematic way of siphoning children
out of public schools and funneling them into the juvenile and criminal justice system.
A number of civil rights lawyers regard the journey from “school- to-prison pipeline,”
as the most critical civil rights issue facing our country today.
Friday, July 25, 2014
This fall marks the opening of a nationwide opportunity to provide free breakfasts and lunches to K-12 students under the U.S. Department of Agriculture's Community Eligibility Provision (CEP) plan. The CEP plan has been phased in select areas since the 2011-12 school year, but is available to all states this academic year. An important issue for school districts (and one reason why some districts were cautious about participating in the CEP plan), is how they will show eligibility for Title I funds if they no longer have the National School Lunch Program (NSLP) applications to show income levels. The USDA and the Education Department recognized these concerns in a January 2014 guidance document, noting that local governments (and researchers) use the percentage of “economically disadvantaged students to show a school’s eligibility to receive Title I funds, to allocate funds to selected schools, and to calculate the amount generated for Title I services to eligible private school students.” The ED’s January 2014 guidance suggested a couple of alternatives, including multiplying the number of students identified by direct certification programs school by 1.6 or for a district to rank all of its schools on the percentage of students directly certified through SNAP (or another direct certification measure available annually) in both Community Eligibility and non-Community Eligibility schools. The CEP alternative plan grew out of the Healthy, Hunger Free Kids Act of 2010 and the Richard B. Russell National School Lunch Act to provide free meals in high poverty local educational agencies (LEAs) and schools. The USDA hopes to provide an alternative to the need for local school districts to obtain eligibility data from families through a separate collection or making parents apply for free or reduced price meals. Instead, districts may use "direct certification" data (the percentage of families in a district using needs-based programs -- such as the Supplemental Nutrition Assistance Program (SNAP) or Temporary Assistance for Needy Families (TANF) program) to determine the federal cash reimbursement for school lunches provided by the USDA.
African Americans accounted for 70 percent of suspensions and 76 percent of expulsions in the Nashville public schools, while being less than half of the school population. That means that one out of every five African American students was suspended or expelled last year. The numbers for African American males, while not noted in recent releases, are surely higher and, thus, shocking.
To the district's credit, it has realized that enough is enough. It is partnering with a service center for at-risk youth to identify a new discipline, mental health and community outreach model. It is also joining Chicago, Los Angeles and New York in the Positive & Safe Schools Advancing Greater Equity initiatives, through which they will support one another in developing solutions.
I suspect that the Department of Justice and the Office for Civil Rights' joint guidance on discipline disparities also played an important role in their thinking.
More on the story here.
Thursday, July 24, 2014
Professor Dan Subotnik (Touro Law) sent us An Anti-Rape Measure Too Far? analyzing a bill in the California legislature, which, if it becomes law, is likely to become as noteworthy as Antioch College’s Sexual Offense Prevention Policy. California SB 967 would require college students to secure “affirmative consent” from their partners before having sex. "Affirmative consent” is defined in the bill as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” The bill’s author, California state senator Kevin de Leon, told the Washington Times that SB 967 “will change the equation so the system is not stacked against survivors by establishing an affirmative consent policy to make it clear that only ‘yes’ means ‘yes.’” The bill’s supporters describe SB 967 as providing “clearer guidance” on rape prevention and providing justice and adequate services to victims. Opponents criticize the bill as “unnecessary, misdirected and vague” and likely to “result in the unfair treatment of men,” as noted in its synopsis here. If the bill becomes law, colleges must use the legislature’s definition of consent in their sexual assault policies or risk losing state funding for student financial aid. Readers may recall the deep controversies that campus rape laws and sexual assault policies can engender, including concerns about privacy, due process, and the rights of victims and the accused.
In his piece, Prof. Subotnik concludes that the reality and psychology of sexual encounters confound attempts to regulate sex through campus affirmative consent laws. Read An Anti-Rape Measure Too Far after the jump.
Chile has one of the most robust school voucher programs in the world. A new peer reviewed study, Understanding How Universal Vouchers Have Impacted Urban School Districts’ Enrollment in Chile, looks to the effects of Chile's massive voucher program on public education to draw lessons for the United States. In short, Chile provides a test case for the claims that vouchers will spur competition and improve public schools, while also providing choice. Julian Vasquez Heilig summarizes the 39 page study:
in a market where the voucher is distributed equally and to everyone, the final result is a complex scenario of education stratification where differences and segregation primarily functions as an advantage for high-SES students. Prior peer-reviewed research on vouchers in Chile, and the current study, demonstrate that specific family and student characteristics, as well as, the family/student´s area of residence jointly determine the spectrum of educational choices available in a universal voucher system.
The study found, however, that even with a robust voucher program opportunities were not spread equally. Rather, there was significant variation across localities.
Wednesday, July 23, 2014
Seventeen Louisiana legislators have filed suit, alleging that Louisiana State Board of Elementary and Secondary Education's adoption of the Common Core Curriculum did not comply with the necessary process required by the state's Administrative Procedures Act. This case is the inverse of the one dismissed last week by the Oklahoma Supreme Court. There, the legislature had repealed the Common Core and the state board argued that the legislation violated the board's constitutional authority to supervise education. In Louisiana, the legislature is claiming the board acted unlawfully in adopting the common core.
The Common Core, teacher assessment changes, and NCLB waivers--which prompted the first two reforms, are producing schizophrenic litigation. Almost every week has brought new litigation,
Tuesday, July 22, 2014
Much of the federal government's interest in creating accountability standards for higher education focuses on the cost and student loan debt. The media has recently highlighted the rising amount of student debt. However, a recent report gives a different perspective to the student loan debate: that the rising interest in protecting students against substantial loan debt is a factor of more upper and middle class students needing to take out loans. A recent post at Brookings Institution states "findings [that] suggest that the recent surge in attention paid to student loans may
stem in part from increasing debt among high-income households." The author, Matthew M. Chingos, explains:
An era in which students from low-income families used loans to supplement grants has given way to a system dominated by the wealthiest Americans, many of whom were born to affluent parents. This trend supports the theory that the intensification of the public debate over student loans may be due in part to the increased prevalence of debt among more affluent households. Given the unlikely reversal of this trend, political pressure on policymakers to offer broad-based “relief” to borrowers, such as a reduction in interest rates, may continue to intensify. Absent credible evidence that such a policy would have a large “trickle-down” effect on the broader economy, policymakers should instead focus on the core mission of the federal loan program: promoting access to higher education on terms that are fair to both students and taxpayers.
Read Why Student Loan Rhetoric Doesn’t Match the Facts here.
Indiana School District Not Entitled to Summary Judgment on Discretionary Immunity Claim In School Shooting Case
The Indiana Court of Appeals recently ruled that a negligence claim could go forward against a school district for failing to protect two victims of a school shooting. The case arises from a shooting in Martinsville West Middle School, Indiana, after a student, Phelps, shot two students, C.J. and B.K. The two injured students, through their parents, sued the Martinsville Metropolitan School District claiming that the district failed to protect the students from Phelps by negligently leaving a school door unlocked that allowed Phelps to enter with a gun. The students alleged that the district failed in its duty of care by failing to warn staff that Phelps posed a threat and failed to tell staff to look for Phelps on school grounds after he was suspended and to call 911 if Phelps was spotted on school property after he had been banned from school grounds. The school district lost its motion for summary judgment before an Indiana state court and appealed. The Indiana Court of Appeals affirmed the lower court’s denial of summary judgment, finding enough evidence to show that the district was not immune from liability under the Indiana Tort Claims Act and that the School District did not breach its duty to C.J. and B.K. The Court of Appeals also rejected the district’s argument that C.J. was contributorily negligent for failing to alert school authorities that Phelps had made a threat against him. The Court of Appeals concluded that the school principal’s safety plan did not entitle the district to discretionary function immunity under the Indiana Tort Claims Act because the school district was the ultimate policy-making body. While the school principal had authority over the operation of the school, the principal had no policy-making authority. The appellate court further determined that the case had genuine issues of material fact on the negligence claims because the district did not prove as a matter of law that the shooting was unforeseeable. The court noted that “Phelps had a lengthy history of serious misbehavior in school; threatened to blow up the school; and was on school grounds, presumably in close proximity to the personnel monitors, for thirty minutes prior to the shooting, ... and had made threats against C.J., of which at least one  teacher was aware.” Given these facts and the court’s stated reluctance to find summary judgment in fact-intensive negligence claims, the Court of Appeals held that that the question of breach of duty was best left to a jury. Read Metropolitan Sch. Dist. of Martinsville v. Jackson, No. 55A01-1304-CT-182 (Ind. App. Ct. May 19, 2014) here.
Alderman Latasha Thomas, chairman of Chicago City Council's Education Committee, is calling for race to be considered in the admission process at Chicago's elite public high schools. The District was previously under a desegregation consent order, but since it was vacated in 2009, the admission process for the elite schools has been race blind. The result has been a significant increase in white enrollment and decrease in African American enrollment. Thomas makes an argument for reversing that trend that seems to fit squarely within the Supreme Court's narrow tailoring requirement:
Now that you’ve taken race out for four years and saw [the adverse impact], race can be one of the factors. Before, it was one of two factors. Now, race can be one of six or maybe seven factors you use, so it’s not weighted as heavily as it was before. Your legal consultants should be exploring that with the idea that, when you took race out, we were falling backwards. Now, we have justification.
The district's director of student enrollment committed to raise the issue internally and consult with the district's law firm regarding legally permissible options.
Monday, July 21, 2014
An Arizona charter school, Heritage Academy, is purportedly using two of Cleon Skousen’s books, “The 5,000 Year Leap” and “The Making of America,” in its high school history class. The books depict American slavery in a racist and sympathetic light. Skousen, for instance, includes an essay arguing that “if [African-American children] ran naked it was generally from choice, and when the white boys had to put on shoes and go away to school they were likely to envy the freedom of their colored playmates.” Professor Garret Epps, University of Baltimore School of Law, explains that “parts of [Skousen's] major textbook … present a systematically racist view of the Civil War” with a “long description of slavery in the book” arguing that slavery was “beneficial to African-Americans and that Southern racism was caused by the ‘intrusion’ of Northern abolitionists and advocates of equality for the freed slaves.” The school's founder and principal defends the use of the books, stating that "Our purpose is not to convert students to different religious views. It is to show them that religion influenced what the Founders did.”
Rushing to judgment in book cases is all too easy, and that is how school boards and state departments of education find themselves in lawsuits. All books can have value in the classroom. What matters is not the views the books espouse, but how those views are presented to students. As a litany of establishment clause cases has shown us, the Ten Commandments and the Bible can be used in school, if used in the proper context. The problem is that the proper context is most often lacking.
How the Kansas Courts Have Permitted and May Remedy Racial Funding Disparities in the Aftermath of Brown
Preston Green, Bruce Baker, and Joseph Oluwole's new article, How the Kansas Courts Have Permitted and May Remedy Racial Funding Disparities in the Aftermath of Brown, is now available on westlaw at 53 Washburn L.J. 439 (2014). The introduction summarizes it as follows:
After the Brown v. Board of Education decision, black students have primarily used school desegregation and school finance litigation to attain equal educational opportunity. School desegregation litigation has focused primarily on breaking down the official barriers that prevented black students from attending public schools with white students. School finance litigation has sought “to increase the amount and equalize the distribution of educational resources and, in so doing, to improve the academic opportunities and performance of students disadvantaged by existing finance schemes.” This Article explains how the failure of the two legal strategies to address racial funding disparities in the aftermath of Brown enabled the Kansas legislature to create a school finance formula that disadvantaged the school districts affected by that famous decision. This Article also explains how Kansas's recent school finance litigation may provide insight as to how state education clauses might be used to enable students in high-black-concentration school districts to obtain equal educational opportunity.
Friday, July 18, 2014
Utah Considering Foregoing NCLB Waiver Extension and Questioning Constitutionality of Current Process
The Utah State School Board has been mulling over its options (or rather the option) regarding the state's waiver from the No Child Left Behind Act (NCLB), and remains divided over what to do. The deadline for for waiver extensions is mid-August. Without a waiver extension, the state must comply with all provisions of the act, "including requirements to divert funds intended for the assistance of at-risk students, the hiring of third-party consultants, faculty and administrative shakeups, and potentially the closing of traditional public schools to be reopened as charters." According to a presentation by the vice chair of the board, if the state were to abandon its waiver, costs would rise $26.5 million and all 1,067 Utah schools would fail under the law in the coming year. Some in the state are also hashing through the issues I have been raising here and here regarding the constitutionality of the Department's actions under the waivers.
More on the Utah story here.
Thursday, July 17, 2014
A mysterious group called Cal200 has filed class action lawsuits against 3 dozen California school districts for failing to providing students with the 200 minutes of PE every 10 days required by state law (an average of 20 minutes a day). Cal200 has no apparent connection to education or the school districts that it is suing, which include Los Angeles Unified — the second-largest school district in the nation — San Francisco Unified, Riverside Unified, San Bernardino City Unified, Palm Springs Unified, and Desert Sands Unified. Cal200's president has refused to provide details about its membership or history. Little information is available on Cal200's website, leading the president of the Palm Springs Teachers Association to conclude that "this lawsuit is low-hanging fruit. Everybody knows that PE has been pushed aside. People saw this coming, and it was avoidable." In April, a risk management organization warned California school districts about Cal200 -- that the organization requests teachers' lesson plans through a public records request, then sues based on the information provided. The Desert Sun reports:
A few years ago, as the economic recession whittled away at state education funding, many elementary schools shifted more of the responsibility for PE onto classroom teachers. Under this system, students would spend a limited amount of time with a specialized PE teacher once or twice a week, and then their regular teacher would add more physical activity into the classroom routine.
The plan works on paper... but in reality, many teachers are stretched too thin to provide the PE minutes. Teachers are under constant pressure to produce high-testing students, so some have sacrificed PE minutes so they could have extra time for English or math[.]
Read more at the Desert Sun here.
The U.S. District Court for the Middle District of Florida dismissed a suit against the Orange County School Board (OCSB) earlier this month, finding that the claim that the Board prohibited distribution of anti-religion materials was moot. An advocacy group, the Freedom From Religion Foundation, filed the federal complaint after the OCSB did not allow the group to hand out flyers in schools that criticized various religions. The Foundation charged that the OCSB's restriction was viewpoint discrimination because the OCSB allowed a group called the World Changers of Florida to distribute copies of the Bible. The OCSB, in explaining the different treatment, cited a consent decree from another Florida county school board to allow World Changers to distribute Bibles on school grounds (none of the parties in the Orange County case were parties to the prior consent decree). The Orange County case was mooted, the Middle District found, because the OCSB stated "that each of the materials plaintiffs sought to distribute will be unconditionally allowed" and thus the prohibition that gave rise to complaint was unlikely to reoccur. Read the district court's decision in Freedom From Religion Foundation v. Orange County School Board at Courthouse News Service here.