Tuesday, September 30, 2014
California is now the first state to adopt an affirmative consent standard in regard to sexual assault claims. This change comes "as states and universities across the U.S. are under pressure to change how they handle rape allegations." The bill was originally introduced by Senator Kevin de Leon, who hopes this new law will begin a paradigm shift across the country as to how colleges and universities prevent and respond to sexual assault reports. Now, "[r]ather than using the refrain 'no means no,' the definition of consent under the bill requires 'an affirmative, conscious and voluntary agreement to engage in sexual activity.'" Thus, according to the legislature, under the new law "silence or lack of resistance does not constitute consent. Under the bill, someone who is drunk, drugged, unconscious or asleep cannot grant consent." The bill also requires counseling and health services for victims, as well as training for the faculty and staff who handle these reports, so that they do not inadvertently overreach when interviewing victims. Moreover, support for this bill came from both sides of the aisle, with no opposition in the Senate. In the general assembly, some Republicans questioned whether statewide legislation is really the best way to address the issue. Nevertheless, the bill passed and was signed into law by the governor on Sunday.
A new student comment by Talon Hurst, Give Me Your Password: The Intrusive Social Media Policies in Our Schools, 22 CommLaw Conspectus 196 (2014), discusses social media policies "that allow school officials to request or demand students to consent to their social media accounts being accessed or monitored[.]" The author argues that these policies violate students' First and Fourth Amendment rights, and calls for judicial review of their constitutionality. Hurst emphasizes that these kinds of social media policies are not only a concern in primary and secondary schools, but also growing in prevalence at a number of colleges and universities, especially in regards to student athletes. Who knew colleges and universities were so interested in their students?
Hurst points to school officials at the University of North Carolina, who "force their student-athletes to consent to the monitoring of their social network accounts by signing a social media policy[,]" which states that "'[e]ach team must identify at least one coach or administrator who is responsible for having access to and regularly monitoring the content of team members' social networking sites and posting.'"
For those who have not seen it, I highly recommend Daniel Kiel's documentary, The Memphis 13, which explores the integration of Memphis schools through the voices of those who did it. The film is now available for streaming online and includes a curriculum. Below is his announcement:
This week marks the anniversary of the historic steps of the Memphis 13, the first students to desegregate schools in Memphis. Thank you so much for your interest in and support for The Memphis 13 documentary in the past. Since the film premiered three years ago on the 50th anniversary of that historic first day of school, this documentary has been shared in film festivals, universities, classrooms, and communities across the country. Most recently, the film was featured in Teaching Tolerance magazine, and now, the opportunity to share the film with the world has been significantly expanded.
Monday, September 29, 2014
Thomas Ahn and Jacob Vigdor have released a new study finding that No Child Left Behind, particularly its harshest sanctions, did have some positive impacts on outcomes, just not nearly as robust as the original proponents of the Act promised. The abstract summarizes the study as follows:
Comparisons of schools that barely meet or miss criteria for adequate yearly progress (AYP) reveal that some sanctions built into the No Child Left Behind accountability regime exert positive impacts on students. Estimates indicate that the strongest positive effects associate with the ultimate sanction: leadership and management changes associated with school restructuring. We find suggestive incentive effects in schools first entering the NCLB sanction regime, but no significant effects of intermediate sanctions, with the exception of gains from restructuring which are pervasive. We find no evidence that schools achieve gains among low-performing students by depriving high-performing students of resources.
Friday, September 26, 2014
High school students protesting proposed changes to the history curriculum in Denver area schools have gained national attention in recent days. The pertinent portion of the proposal before the school board states:
Materials should promote citizenship, patriotism, essentials and benefits of the free enterprise system, respect for authority and respect for individual rights. Materials should not encourage or condone civil disorder, social strife or disregard of the law. Instructional materials should present positive aspects of the United States and its heritage. Content pertaining to political and social movements in history should present balanced and factual treatment of the positions.
The number of students protesting swelled to seven hundred to one thousand on Wednesday. As an educator, I am heartened to see students taking such a serious interest in their education, particularly history, and making use of the First Amendment rights. As a law professor, I am not sure their position has legal grounding. Rather, their claim, if they have one, is of policy. I agree with their substantive position--that the school should not censor the truth or bend the historical narrative--but I am not sure the proposed policy crosses the line of permissible conduct.
Thursday, September 25, 2014
Comprehensive Study Finds That 20% Funding Increase Eliminates Two-Thirds of the Gap in Student Outcomes
This summer, C. Kirabo Jackson, Rucker Johnson, and Claudia Persico released an impressive and important study on school finance reform. I was away on travel when it came out and forgot to post it on my return. In any event, it is the most comprehensive I have seen and reaches more definitive conclusions than usual. As the abstract below notes, they find that a twenty percent increase in per pupil funding, if maintained, results in low income students completing .9 more years of education and earning 25 percent more. Also, 20 percent fewer will remain in poverty as adults. Overall, they find that the increased school funding wipes out two-thirds of the gap in outcomes between low- and middle-income students. The abstact offers the following description:
Wednesday, September 24, 2014
The L.A. Times reports an interesting lawsuit in which a former student is suing her high school for passing her through to graduation after she suffered a traumatic brain injury. The Times reports that the student, Crystal Morales, has asked a federal court to invalidate her high school diploma because the school "cheated her out of a quality education by boosting her grades and waiving assignments after she suffered a traumatic brain injury her senior year." Morales was a senior at Newport Harbor High School in 2011 when she was hit by a drunk driver outside of the school. Morales returned to school three months later but when she was re-integrated into a regular classroom, she was not required to turn in assignments. Morales wanted to graduate with her friends in the senior class and did so, but now alleges that the school did not appropriately educate her given her disability. Read more about the suit at the L.A. Times website here.
Tuesday, the NAACP Legal Defense Fund and the National Women's Law Center released a critical report on African American Girls and Education. They offer this summary:
The report, titled Unlocking Opportunity for African American Girls: A Call to Action for Educational Equity, is aimed at eliminating barriers that are rooted in racial and gender discrimination so that African American girls and other children of color have meaningful access to equal educational opportunities. The report first provides a historical perspective that captures the critical role that African American women played in desegregating schools and ensuring that all students, irrespective of race, have access to a high quality education. The report then discusses how racial and gender stereotypes permeate classrooms today; other barriers that African American girls face; and academic indicators that show African American girls are being left behind. Finally, the report sets forth a series of recommendations for eradicating the barriers that African American girls and other students of color face.
Litigants have filed another challenge to the Common Core, this time in Missouri. The theory there is particularly unique. They charge that state funding of the consortium that is developing Common Core standards and assessments amounts to an "illegal interstate compact" and cedes state sovereignty over education to the consortium. They also charge that the U.S. Department of Education has illegally funded the consortium: $360 million to Smarter Balanced and the Partnership for Assessment of Readiness for College and Careers (PARCC), which are developing the standards. The lawsuit alleges this funding was not authorized by Congress.
I have not investigated this latter claim, but am skeptical, given that the funds flowed through the American Recovery and Reinvestment Act, which gave the U.S. Department of Education significant discretion in awarding grants to promote education innovation. That level of funding to Common Core developers, however, would give added support to the argument that the college and career readiness requirements in Race to the Top and No Child Left Behind Waivers were de facto requirements that states adopt the Common Core. In other words, the Department funded a private group to develop standards and then required states to adopt standards that could be found in only one place: the place that the Department funded.
More on this argument here.
David Boies is making headlines again. This time it is by becoming the chairman of the Partnership for Educational Justice, a group founded by former CNN anchor Campbell Brown to challenge teacher tenure laws. These lawsuits seek to use the precedent and constitutional right to education developed in school finance litigation. David Sciarra, Executive Director of the Education Law Center, has helped establish and develop these educational rights in a number of cases. His response is that if David Boies really wants to help education, he should join school funding lawsuits in New York, Colorado, New Mexico, Kansas, Texas, Connecticut, New Jersey, and Mississippi. Sciarra's comments strike at the irony of the new and impending upsurge in education litigation. Boies purports to be viewing education through a civil rights lens now, but to focus solely in on teacher tenure is to ignore any number of fundamental inequalities that stem from funding and segregation, not tenure. Even if tenure is a problem, eliminating it will do nothing to touch the underlying fundamental inequalities and segregation in schools that purportedly want to get rid of ineffective teachers but cannot.
Tuesday, September 23, 2014
In Ollier v. Sweetwater Union High School District, 2014 WL 4654472 (9th Cir. Sept. 19, 2014), five female students from Sweetwater Union High School District brought suit, alleging that the school district unlawfully discriminated against them based on their sex in violation of Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment. Specifically, "[t]hey alleged that Sweetwater 'intentionally discriminated' against female students at Castle Park High School ('Castle Park') by 'unlawfully fail[ing] to provide female student athletes equal treatment and benefits as compared to male athletes.'" The plaintiffs claim that the school continued to discriminate despite persistent student complaints and protests. Plaintiffs identified several inequalities, including
(1) practice and competitive facilities; (2) locker rooms and related storage and meeting facilities; (3) training facilities; (4) equipment and supplies; (5) transportation vehicles; (6) coaches and coaching facilities; (7) scheduling of games and practice times; (8) publicity; (9) funding; and (10) athletic participation opportunities.
Similar Lawsuits Expected in Other States
On September 15, 2014, the Northeast Charter Schools Network (NECSN) and charter parents filed a lawsuit against the State of New York, seeking more taxpayer support for charter schools, specifically for facilities.
The lawsuit, Brown v. New York, which was filed in Buffalo, claims the funding system used by the State to allocate money to charter schools violates the state constitution. The plaintiffs argue that the state funding formula denies children enrolled in charter schools access to a "sound basic education," as required by the New York State Constitution. Additionally, they allege that the funding scheme has a disproportionate and discriminatory impact on minority students.
The parent plaintiffs are from Buffalo and Rochester and are represented by Herrick, Feinstein LLP, Park Avenue, New York, NY.
As reported in the Rochester City Newspaper, the Alliance for Quality Education, a statewide group that advocates for high quality public education for all New York students, issued a statement calling the suit a "deceptive PR stunt." "Despite the fact that public schools are severely underfunded, Wall Street-backed charter school groups continue to use aggressive propaganda to win more public school dollars," the statement asserts.
Monday, September 22, 2014
Shortly after the shooting of Michael Brown in Ferguson, Edwardsville, Illinois Superintendent Ed Hightower told his teachers to not bring up or discuss the situation in Ferguson and, if students brought it up, to change the subject. His rationale, “this situation in Ferguson-Florissant has become a situation whereby there are so many facts that are unknown.” The initial impetus was apparently complaints by parents about teachers sharing their opinions on Ferguson. That motivation would have obviously raised First Amendment red flags. In a subsequent statement, he tried to fit his directive closer to the law, stating:
We felt it was important to take the time to calm a potential situation at the high school and to prepare administrators and teachers to approach this critical issue in an objective, fact-based manner. Everyone has an opinion — the sharing of which can be polarizing. Far too many facts remain unknown, and without these facts, none of us is in the best position to moderate between opposing views.
Friday, September 19, 2014
Those who seek to include more religion in school often perceive the ACLU as waging war on religion. A recent story out of Louisiana demonstrates that perception is wrong. The ACLU distinguishes between official school acts that endorse religion or subtly coerce non-believers into religious activity and those school acts that interfere with students's free exercise of religion.
At the beginning of the school year, South Plaquemines High School in Louisiana suspended a Rastafarian boy school and forbade him from returning until he cut his dreadlocks. They cited him with violating the school's dress code, which prohibits hair below the collar. The next week he returned to school with his hair pinned up, but told him he was still in violation of the dress code.
Rastafarians' religious beliefs, although some charge it is just a way of life, forbid them from cutting their hair, and the ACLU of Lousisiana has stepped in to support the boy for this reason. “The wearing of dreadlocks for (the student) is akin to the wearing of a religious icon by another student,” the ACLU said in a letter. “We would object if the school were to tell a Christian student they could not wear a cross or if it were to permit the wearing of religious icons of one faith and prohibited those of another faith. In discriminating against (the student’s) religious beliefs, the school is expressing a preference for certain religions, which is unacceptable.” The ACLU charges that the district's actions violate the First Amendment and Louisiana’s Preservation of Religious Freedom Act.
Thursday, September 18, 2014
Education Law Association 60th Annual Conference
Wednesday, November 12, 2014 – Sheraton San Diego Bay Tower, CA
Join Education Law Association prior to its 60th anniversary conference in
San Diego for your choice of four pre-conference seminars:
• Education Law for California K-12 Administrators
• Legal Ethics in Education
• K-12 Special Education
• Higher Education
With tight budgets, many professionals have had to make tough choices among conferences to attend. If you are unable to attend the entire ELA 60th Annual Conference, November 12-15, perhaps you, your colleagues, or students, will be able to attend one or more of our pre-conference sessions on Wednesday morning or afternoon. Each of the pre-conference sessions is geared to be of special interest to a primary audience of K-12 or higher education administrators, attorneys, education and law professors, as well as students who wish to learn more about education law.
Wednesday, September 17, 2014
Following up on Derek's post, Washington Supreme Court Turns Up Heat on State Legislature in School Funding Case, last week Washington's high court found the legislature in contempt as some predicted after oral arguments in the case. The Washington Supreme Court's ruling in McCleary, et al. v. State of Washington, comes during a tumultuous year for the legislature on school funding issues. This spring Gov. Jay Insbee blamed the legislature for Washington becoming the first state to have its NCLB waiver revoked this spring, the state supreme court ruled in January (in this case) that the state's education funding system was unconstitutional, and the state faces a $1 billion education budget shortfall. In McCleary, the court indicated it has grown tired of legislative delays in complying with the court's January order to fully fund basic education by the 2017-18 school year. The court wrote last week that it was not issuing the order simply to get the legislature's attention. Instead, "contempt is the means by which a court enforces compliance with its lawful orders when they are not followed," the court wrote. Read the court's order in McCleary, et al. v. State of Washington here.
I have applauded the Departments of Justice and Education on their steps to reduce overly punitive discipline and racial disparities. Their joint guidance in January was a major step forward. On the other hand, the Department of Justice's 1033 program, which funnels military gear and weapons from the Department of Defense to localities, including school districts, is a step in the wrong direction. The Washington Post reports:
Law enforcement agencies affiliated with at least 120 schools, colleges and universities have received gear through the program, according to a Washington Post review of data from 33 states. The items received include at least five grenade launchers, hundreds of rifles and eight mine-resistant, ambush-protected vehicles, the hulking machines designed to withstand the kind of roadside attacks seen in Iraq and Afghanistan.
Tuesday, September 16, 2014
On September 8, 2014, the Forward Institute released a study that examines the Wisconsin school funding formula and finds that it does not fulfill its mandate to provide a sound, basic education as guaranteed by the state constitution and state statute.
The Association for Equity in Funding, a group of Wisconsin school districts, commissioned the study, which is entitled "Segregation of Opportunity: Education Funding."
The goal of the study was to answer the question, "Is the education tax and funding system in Wisconsin fulfilling its constitutionally and statutorily mandated function to provide a sound, basic education for all students regardless of need, without an excessive reliance on local property taxes?"
In July, Jason Nance concluded, based on the Court's decision in Riley v. California holding officers generally need a warrant to search an individual's cell phone, that most school searches of students' cell phones would be off limits as well. The lower reasonable suspicion standard applied to school searches would not save administrators on this point. Last month, a district court judge agreed with Nance in Gallimore v. Henrico Cnty. Sch. Bd., 2014 WL 3867557 (E.D. Va. Aug. 5, 2014).
School administrators, Turpin and Saunders, had "received reports from two parents that a longhaired student had smoked marijuana on a Hermitage High School bus that morning. That afternoon, Turpin brought W.S.G. to Saunders' office. W.S.G. did not know why Turpin summoned him to the office. W.S.G. emptied his pockets, and, before offering an explanation, Turpin initiated a search. Turpin patted down W.S.G.'s person and searched W.S.G.'s backpack, shoes, and pockets. Saunders searched W.S.G.'s Vaseline jar, a sandwich wrapper, and cell phone. Saunders broke the lid of the Vaseline jar while searching it, but did no other damage. Saunders and Turpin found no marijuana on W.S.G., and they sent him back to class."
Monday, September 15, 2014
Bruce Baker's new study, Evaluating the Recession's Impact on State School Finance Systems, is now available. The abstract offers the following summary:
The Great Recession's effect on state school finance systems was unlike previous downturns in the early 1990s and early 2000s in that it a) involved a greater loss of taxable income in many states, thus great loss to state general fund revenues, b) also involved a substantial collapse of housing markets and related reduction or at least leveling of growth of taxable property wealthy, c) but also involved a substantive infusion of federal "fiscal stabilization" aid to be used to fill holes in state general aid formulas. The goal of this study is to evaluate the effects of the recession on equity of state school funding systems with respect to child poverty concentrations. Using school district level panel data from 1993 to 2011, we evaluate the interplay between local, state and federal source revenues through the course of the recent recession by comparison with the less severe economic downturn of the early 200s. Then using stat level estimates of elasticities between revenue and spending measures and district poverty rates, we estimate whether changes in the distribution of state, local or federal revenue contribute most to changes in overall equity of current spending and whether those contributions changed during the recent recession.
Among several conclusions was that increases in state increase spending fairness, as do increases in federal aid. The inverse is also generally true. Of course, it is far more complicated than that and warrants a close read.