Friday, August 29, 2014

Jindal's Lawsuit Against Feds Is an Overstatement, But Oklahoma's Would Have Merit

Wednesday Gov. Bobby Jindal filed suit against the Department of Education over its requirement that states applying for Race to the Top Funds adopt the Common Core Curriculum.  Yesterday, the Department of Education withdrew Oklahoma's No Child Left Behind Waiver because the state repealed the Common Core Curriculum.  In short, a lot is happening very quickly in national education policy, and the courts are being called upon to get involved.

My initial read of Jindal's suit is that it is misplaced.  First, Congress extended the Department enormous discretion in shaping the types of reforms and programs the Department could pursue through Race to the Top.  A blank check describes it best.  Second, no states were forced to apply for Race to the Top funds and many did not. Thus, those who did were acting completely voluntarily.  The notion that Congress violated state's rights when these states jumped at the money is a hard narrative to make.  

Jindal's only colorable claim is in regard to the general education provision statute that indicates that the Department shall not dictate curriculum to states.  This provision, however, may be superceded by the discretion afforded in Race to the Top.  Even if not, because the curriculum flowed through a competitive grants it does not easily fall in the category of a federal dictate.

Oklahoma, on the other hand, has far more to complain about.  As I demonstrate in my new article here, the Secretary lacked the statutory authority to impose new conditions on states in exchange for NCLB waivers.  Moreover, the unilateral imposition of new conditions amount to law making power that an agency cannot possess.   Finally, the imposition of new waivers ten years into NCLB violates the clear notice rules required by the Constitution.  In short, Jindal may not have much to complain about, but Oklahoma (and Washington) certainly do.  

August 29, 2014 in ESEA/NCLB, Federal policy | Permalink | Comments (0)

Thursday, August 28, 2014

More Common Core Resistance: This Time in Florida

Following Louisiana Governor Bobby Jindal's decision this week to sue the federal government  over Common Core, yesterday a central Florida county board of education opted out of all state-mandated testing in what a board member called “an act of civil disobedience," the Ft. Myers News-Press reports. Supporters at the Lee County school board meeting saw the vote as a protest against the Common Core standardized testing standards.  Florida’s Lee County became the first school district in the state to boycott state standardized testing, which are called the Next Generation Sunshine State Standards. The Sunshine State Standards are acknowledged to be a rebranded (and lightly-altered) version of Common Core after the state withdrew from the CC standards. Lee County Superintendent Nancy Graham responded to the county school board vote saying, "I am gravely concerned about the decision that was made tonight, and I'll try to make sense of this.” The Florida Department of Education has a number of ways that it can respond to Lee County Board’s noncompliance, including removing board members, pulling funding and rewards programs, not awarding standard diplomas, and ending opportunity scholarships. Because the Lee County school board’s attorney outlined those consequences for the members, it is yet unsure whether Lee County will hold its stance or is simply making a political statement about Common Core. Read more here and here.

August 28, 2014 in News | Permalink | Comments (0)

L.A. School District Will No Longer Issue Citations for Minor Offenses

New LAUSD guidelines for minor offenses

Derek posted yesterday about a case that shows how school-related juvenile charges can derail a student's education. The Los Angeles Unified School District announced last week that it is taking steps to alleviate some of those consequences by decriminalizing school discipline. Cribbed from the L.A. Times: L.A. school police will no longer issue citations for minor offenses such as campus fights, petty thefts, and tobacco possession and will instead use alternatives to arrest. The district says that the move is a recognition that zero tolerance polices are not making schools safer but are instead pushing out struggling students who then may drop out and get in more serious trouble. L.A. Unified developed the graphic to the left to guide schools towards internal discipline and when to call the police. Click the graphic to see the full chart and read the L.A. Times story here.

August 28, 2014 in Discipline | Permalink | Comments (0)

Wednesday, August 27, 2014

Ensuring Harsh Discipline and Complicating the Problem

Getting to the bottom of what would otherwise be a simple suspension appears to be a complex task in J.A. ex rel. Swain v. Talladega City Bd. of Educ., 2014 WL 4185137 (N.D. Ala. Aug. 15, 2014) because of the statutory and constitutional context in which it arises.  The court does not chronologically or clearly articulate the facts, but it appears that J.A. and his Assistant Principal were involved in some type of physical altercation.  As a result, J.A. was referred to the police and charged with assault in juvenile court.  Pursuant to Alabama statute, a school shall not readmit a student charged with drugs, weapons, physical harm, or threats until the juvenile charges are disposed of.  As a result, J.A. was suspended from school and assigned to an alternate school.

J.A. filed suit against the principal and district, alleging the principal assualted him and that he was deprived of his substantive due process rights.  He also filed for a preliminary injunction, requesting that he be readmitted.  Beyond that, things get complicated.  J.A.'s juvenile proceedings are apparently dragging out and, thus, he remains excluded from school based on the statute.  He points out the illogic of this statute, as it would permit a student quickly found guilty or delinquent to return to school in short order, but would indefinitely exclude the innocent student who holds out for or requires more complex deliberations.  In other words, the readmission is not triggered by substantive facts, guilt, or innocence, but simply the length of time it takes for juvenile proceedings to run.  

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August 27, 2014 in Discipline | Permalink | Comments (0)

Tuesday, August 26, 2014

Nashville Schools Ordered to Cease Searches and Examinations by Nurses Until Proper Training and Policy in Place

A school nurse in the Davidson County public schools in Nashville, Tennessee, subjected a female student to a medically unjustified genital examination in the presence of a school official.  The girl's parents challenged the examination as a violation of her rights under the Fourth and Fourteenth Amendments.  The case went to trial and the jury found for the defendants.  The parents moved for a new trial, which the court in Hearring v. Metro. Gov't of Nashville & Davidson Cnty., 2014 WL 3924520 (M.D. Tenn. Aug. 11, 2014), denied.  The court, however, did grant the plaintiff an injunction as to future examinations by the district.  The court found that the staff were insufficiently trained and the district had adopted insufficient standards to prevent unwarranted invasions of privacy. 

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August 26, 2014 in Discipline | Permalink | Comments (0)

ACLU Challenges Massachusetts School District's Policy That Requires Some to Pay to Use School-Provided iPads at Home

The Associated Press reports that the ACLU has filed a complaint with the Massachusetts  Department of Elementary and Secondary Education challenging a school's policy that allows allows students identified as qualifying for free or reduced price meals to take school-provided iPads home, but requires other students to pay for the devices if they want to take them out of school. Under the district's reported policy, if parents do not wish to pay for an iPad, their child may only use the device at school. ACLU-Massachusetts deputy legal director Sarah Wunsch told the AP that Massachusetts' Mendon-Upton School District was violating the law by not providing equal access to educational resources. This particular issue is likely to be resolved quickly by the district's changing its policy, but the discrepancy does highlight a recurring problem in public education: pressure on parents to subsidize educational intiatives that school districts cannot truly afford. The ACLU complaint in Massachusetts is part of a longstanding efforts to investigate "two-tiered educational systems":  a higher tiers for those who could pay for technology, field trips, course fees, etc., and a lesser one for those who cannot. (See Pay-to-Learn: An Investigation of Mandatory Fees for Educational Activities in California's Public Schools, August 2010.) This issue was highlighted earlier this year in The Hidden Cost of Public Education--a four-part series by education advocate and journalist Trisha Powell Crain. In the series, Crain focuses on Alabama, but the trend of public education fee creep is applicable nationwide. To see Crain's take on schools' "required" dues and fees, go here.

August 26, 2014 in News | Permalink | Comments (0)

Monday, August 25, 2014

Arkansas Released of Obligations in Historic Little Rock Desegregation Case

For the past three decades, desegregation litigation regarding the Little Rock Arkansas School District and surrounding districts has made its way through the federal courts.  In 2011, the districts in North Little Rock and Pulaski petitioned for unitary status and sought to dissolve the interdistrict desegregation plan in place.  The United States District Court for the Eastern District of Arkansas, 2011 WL 1935332, granted  the petitions in part, but on appeal in Little Rock Sch. Dist. v. Arkansas, 664 F.3d 738 (2011), the Eighth Circuit reversed, finding significant continuing vestiges of segregation and holding that the State of Arkansas had a continuing obligation to fund the interdistrict desegregation plan.  Last week, on remand, the district court approved a settlement agreement between the parties by which the state of Arkansas is no longer a party to the case.

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August 25, 2014 in Racial Integration and Diversity | Permalink | Comments (0)

Thursday, August 21, 2014

Student Detained and Suspended Over a Dinosaur Story: A Constitutional Breach?

The determinative facts are hard to confirm at this point, but based on news accounts, a student in Summerville, SC made a series of fictional story posts on Facebook as part of a class assignment just before the school year started.  His fictional story was about killing a pet dinosaur and buying a gun to do it.  School officials reported him to the police.  On the first day of class, the police then detained him and searched his locker and backpack.  They did not find anything, but according to the police, the student became irate over the search.  News reports indicate he was arrested and charged with disorderly conduct under the state's Disturbing Schools Act, although I have not confirmed the arrest and charge.  The school also suspended him for the week.  Whether the school suspended him for the facebook posts, the purported disorder, or both is unclear.

Based on the current facts as presented, the case seems to raise free speech, substantive due process, search and seizure, and statutory infraction issues.  The devil is in the detail, but it may well be an example of breaching the "Constitutional Limits of Zero Tolerance," which I explain here.  For more on the facts of this individual student's case, see here.

August 21, 2014 | Permalink | Comments (0)

Wednesday, August 20, 2014

Judge Rules Against Louisiana Gov. Jindal in Common Core Lawsuit

A Louisiana judge yesterday enjoined Gov. Bobby Jindal's move to block the implementation of the Common Core standards in Louisiana. The judge's grant of a preliminary injunction in favor of a New Orleans charter school group and the state Board of Elementary and Secondary Education  comes after Gov. Jindal threatened to cancel the state procurement contract with with the Partnership for Assessment of Readiness for College and Careers (PARCC), the testing group that develops exams based on the standards. In the suit, Jindal argued that the BESE violated state procurement law in its contract with PARCC and delegated its authority to set education policy to an outside party. Gov. Jindal's position conflicted with that of state education superintendent Jim White, who is a Jindal appointee. Gov. Jindal became a staunch critic of the Common Core standards this year, saying that the standards reflected the federal government meddling in state education. Judge Todd Hernandez cited the disruption to education at the start of the school year as influencing his decision, writing that "[t]he loss of time is irreparable. With each passing day teachers and parents lose time preparing students for high stake testing, and there is a lot riding on the student's successful performance on these tests." Gov. Jindal's staff told the New Orleans Times-Picayune that he will appeal. Read the opinion here.


August 20, 2014 in Cases, News | Permalink | Comments (0)

Education Law Center Calls on New Jersey to Assess Effect of Charters on Segregation and School Funding

The following is a repost of an Eduction Law Center press release:

In comments filed today, Education Law Center is calling on the NJ Department of Education (DOE) to issue rules requiring the State Education Commissioner to assess the impact of NJ charter schools on both student segregation and local school district budgets.

"The New Jersey Supreme Court has made clear the Commissioner's obligation to assess whether a proposed or operating charter school is causing student segregation or depriving district schools of necessary funding, both of which would violate the right of district students to a thorough and efficient education under our State Constitution, " said David Sciarra, ELC Executive Director.

"The State's failure to properly codify this obligation in the rules governing New Jersey's charter school program is a violation of constitutional law," Mr. Sciarra added.

In several rulings, most recently in December 2013, the NJ Supreme Court firmly established the responsibility of the State Commissioner to determine whether a proposed charter school would exacerbate racial segregation and/or deprive students in district-run schools of essential funding.

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August 20, 2014 in Charters and Vouchers, Racial Integration and Diversity, School Funding | Permalink | Comments (0)

Equitable Federated Regionalism in Public Education

Erika Wilson's  new article, Toward A Theory of Equitable Federated Regionalism in Public Education, 61 UCLA L. Rev. 1416 (2014), is now available on westlaw.  It is sure to catch the attention in future scholars, hopefully policy makers as well.  Her abstract offers this summary:

School quality and resources vary dramatically across school district boundary lines. Students who live mere miles apart have access to disparate educational opportunities based on which side of a school district boundary line their home is located. Owing in large part to metropolitan fragmentation, most school districts and the larger localities in which they are situated are segregated by race and class. Further, because of a strong ideological preference for localism in public education, local government law structures in most states do not require or even encourage collaboration between school districts in order to address disparities between them. As a result, the combination of metropolitan fragmentation and localism in public education leads to the exclusion of poor and minority students from access to high-quality school districts, which are largely clustered in more affluent and predominately white localities.

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August 20, 2014 in Racial Integration and Diversity | Permalink | Comments (0)

Tuesday, August 19, 2014

California's New School Funding Formula Is Progressive, But Is It Sufficient?

At the surface level, California's new funding formula is impressive in its structure.  It sets a base per pupil grant for all students, adds 20 percent to that base for each disadvantaged student a school enrolls, and allots a 50 percent bump per pupil for schools enrolling more than 55 percent high needs students.  In other words, it ensures that all schools receive some supplemental resources for every disadvantaged student, but focuses the most resources on high poverty schools, where research shows that concentrated poverty depresses academic outcomes.  Implicit in this framework is the notion that low-poverty schools do not need significant funds to support low-income students.  Hence, the basic 20 percent bump is below the additional funding that most research says high needs students need.  Conversely, high poverty schools need an exponential bump, which this formula aims toward.  This type of formula is generally consistent with the formula that I have argued Congress should adopt for federal funds (see here for more).  If a critique of California's formula is to be had, it may be in regard to the base amount itself.

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August 19, 2014 in School Funding | Permalink | Comments (0)

Monday, August 18, 2014

NPR: When High Stakes Testing Leads to Academic Triage

NPR's piece yesterday on the Atlanta cheating trial touches on broader points of how educators can find themselves moving from an accountability culture to academic rationing of time to meet standardized test expectations. NPR discusses how we may think of cheating as outlandish behavior but that high-stakes testing at any level (bar exam passage rates, anyone?) can lead educators to adopt tactics that fall short of cheating but are also educationally ineffective. From the NPR article:

Daniel Koretz, the Henry Lee Shattuck Professor of Education at the Harvard Graduate School of Education and an expert in educational testing, writes in Measuring Up: What Educational Testing Really Tells Us, that there are seven potential teacher responses to high-stakes tests:

1. Working more effectively (example: finding better methods of teaching)

2. Teaching more (example: spending more time overall)

3. Working harder (example: giving more homework or harder assignments)

4. Reallocation (example: shifting resources, including time, to emphasize the subjects and types of questions on the test)

5. Alignment (example: matching the curriculum more closely to the material covered on the test)

6. Coaching students (example: prepping students using old tests or even the current test)

7. Cheating

Strategies 1 through 3 pretty much describe what high-stakes testing is supposed to do: raise standards, ignite harder effort from teachers and students, and produce more learning.

Strategies 6 and 7 clearly undermine the effectiveness of tests as a metric of learning, and hurt students in the process. Perhaps 95 percent of educators will never go there.

Strategy 4 (reallocation) and 5 (alignment) are ambiguous. If the test is high quality — if it captures all the most important subjects students need to know — then changing school to prioritize those subjects is, again, exactly what we want to see. In other words, if the test is excellent, then "teaching to the test" can be a very good thing.

On the other hand, if the test captures only a few of the subjects students need to know, or emphasizes, say, memorization over comprehension, then reallocation and alignment can cause students to miss out on other important parts of learning.

Read more here.

August 18, 2014 in Teachers | Permalink | Comments (0)

Can For-Profit Charters Be Reconciled with Public Education?

Four states--Michigan, Missouri, Ohio and Florida--have been particularly receptive to for-profit management companies running charter schools.  In Michigan, nearly 80 percent of charters are run by for-profits.  Many states prohibit for-profit companies from running charters.  Many others fall in-between, neither encouraging nor discouraging for-profit management.  This grey area comes from the fact that for-profit companies are generally ineligible to receive charters from states.  A federal statute, for instance, heavily incentivizes states to adopt this approach, prohibiting charters owned by for-profits from receiving federal fund grants.  But the non-profit charter in "grey-area" states is free to contract out services.  Thus, while the non-profit receives the charter, it can pay a for-profit entity to run the school.  I imagine, although I have not investigated, for-profit companies might directly set up non-profits, which can then receive the charter and pass on the work and money to the for-profit.

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August 18, 2014 in Charters and Vouchers | Permalink | Comments (0)

Friday, August 15, 2014

Insiders Say the Elementary and Secondary Education Act Will Not Be Reauthorized Anytime Soon

Whiteboard Advisors recently conducted a survey of education policy insiders.  The insiders do not believe that a reauthorization of the Elementary and Secondary Education Act (ESEA)  is anywhere on the horizon.  A shocking 20 percent say the Act will never be reauthorized.  I am not sure what that response implies: that the federal role in education will move toward competitive grants or that the Secretary will perpetually run federal policy by conditioning waivers of existing law.  Neither of those seems plausible to me.  72 percent allow that the ESEA will be reauthorized, but not until 2016 at the earliest.  Only 32 percent believe the Act with be reauthorized by the end of next year. 

To put these delays in perspective, the Act was due for reauthorization in 2008.  A 2016 reauthorization would mean that the Act doubled its normal lifespan.  In other words, the law is very outdated.  Moreover, the flaws were evident as early as 2004, when scholars, organizations, and policy makers began putting forward constructive proposals for legislative revisions.

The full results of the survey are here.

August 15, 2014 in ESEA/NCLB, Federal policy | Permalink | Comments (0)

Thursday, August 14, 2014

Cheerleaders with Religious Banners: Endorsement, Free Exercise, or Coercion?

In October 2012, a controversy arose at Kountze High School in Kountze, Texas, over the constitutionality of permitting, and then banning, the high school's cheerleaders from displaying religious messages on the banners that the football team runs through at games.  Initially, the Freedom From Religion Foundation challenged the banners as school sponsored speech.  The school district agreed and prohibited the banners.  The cheerleaders then sued, claiming that the school was infringing on their constitutional rights by limiting their speech.  A state trial court agreed. After an intermediate court declared the case moot, it is now on petition to the state supreme court.

The case is particularly fascinating for three reasons.  First, it implicates the fine line between religious endorsement and religious accommodation that often consumes so much time in education law classes.  Second, it raises unique and difficult circumstances for assessing school sponsored speech. Thinking of my own experiences two decades ago, it seemed cheerleaders were on their own in artistically expressing themselves through banners.  I recall them sitting on the gym room floor acting freely.  It is hard to imagine that a school could permissibly engage in content based or religious based limitation of that expression.  

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August 14, 2014 in First Amendment | Permalink | Comments (0)

Journal of Law and Education Call for Papers

The Journal of Law & Education is currently accepting manuscripts for publication in its 2015 volume. Manuscripts  should be sent to the Journal at  Questions about possible submissions may also be directed to Professor Josie Brown, Co-Executive Editor of the Journal, at

Josie F. Brown
Co-Executive Editor, Journal of Law & Education
Associate Professor of Law
University of South Carolina School of Law
Columbia, SC 29208

August 14, 2014 in Scholarship | Permalink | Comments (0)

Wednesday, August 13, 2014

Ohio Commission Considering Weakening Constitution's Education Clause

An extremely troubling movement is brewing in Ohio.  The Ohio Constitutional Modernization Commission is considering changes to the state constitution's education clause.  In particular, it is considering eliminating the language that requires the state to provide a "thorough and efficient" system of public schools.  According to Chad Readler, the chairman of the education committee at the Commission, his intent is not to undermine education or reduce services, but to eliminate the courts' ability to intervene and enforce the education provision.  He claims that the current education clause has been used by advocates to get their way in court when they cannot get it through the legislature.  He is, of course, referencing the DeRolph v. State of Ohio line of cases, in which the state supreme court found the state's financing system unconsitutional based on its irrational distrubution of funds and the wildly unequal results it produced.  

For those who have not read the DeRolph cases, I recall--without rereading--state policies that forced school districts to take out loans to cover the budget shortfalls they incurred every year and repay the loan the following year, which caused a vicious cycle of underfunded and debt-strapped school districts.   The court identified, at least, five other irrationalities and flaws in the

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August 13, 2014 in School Funding | Permalink | Comments (0)

Tuesday, August 12, 2014

New York Releases a New Bill of Rights for Parents and Students--Not Really

New York State Department of Education just released "Parents' Bill of Rights for Data Privacy and Security."  It is based on the U.S. Department of Education's "Model Notification of Rights." In essence, it is a reiteration of the rights contained in the Family Educational Rights and Privacy Act.  The document, however, came with a certain amount of fanfare given the recent concerns over data privacy.  The reiterated rights include the right to

  • inspect and review a student's records
  • request corrections of inaccurate information in the records
  • prevent disclosure of personal records to third parties
  • refuse to let the school include a student in it directories
  • file a complaint with the U.S. Department of Education for violations of the Act

At the risk of sounding grumpy, it strikes me as preposterous to use the term "Bill of Rights" in regard to this document, even though it is qualified by "Privacy."   As a basic descriptive term, bill of rights is fitting enough, but "Bill of Rights" is rarely invoked descriptively.  Most often, it is used to liken a document to the broad, fundamental rights included in the first eight amendments of the U.S. Constitution.  In that respect, it is meant to declare something monumental.  

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August 12, 2014 in State law developments | Permalink | Comments (0)

NPR on New Orleans' Conversion to an All-Charter School District

NPR reports this week on New Orleans officially becoming the first major city with an all-charter school district, as we posted earlier this summer. While the Recovery School District's reports of significant gains is encouraging - student performance on standardized math and reading have increased from 23 percent in 2007 to 57 percent in 2013 performing at grade level - other districts have remained cautious about ditching traditional public schools. First, the city's school system was in deep crisis pre-Katrina, prompting a state takeover of New Orleans' schools two years before the hurricane. And the RSD has been supported by federal and private funds and support in amount that the traditional schools did not have. Further, RSD continues to face troubling accusations about what it had to do to get those gains, including charges that its charters suspend and expel students for minor infractions, that some charter schools have not served special education students well, and that the city may have to pay $1.5 billion to compensate the public school teachers fired after Katrina. While traditional school districts face the same problems, those districts may not have the same freedom to be selective about students or the levels of financial and political support that RSD has received. Listen to the NPR story here.

August 12, 2014 in News | Permalink | Comments (0)