Friday, October 31, 2014
Earlier this month, the Thomas Fordham Institute issued a map based funding explorer of the D.C. area schools. It is not altogether clear to me what the Institute's motivations or goals were. It traditionally produces reports, whereas this is no more than an interactive map. If you dig hard enough, you can get it to produce some tables for you. Regardless, it includes a more robust set of data points than the average tool of this sort and is easy to use, so one (me) cannot help but play with it.
The thing that jumped out at me over and over is that there is no clear rhyme or reason to the funding in the schools. At the district level, the average per pupil expenditures in Alexandria, Arlington, and D.C. Public Schools fell between $15,000 and $15,700. Rough parity, however, only makes sense if the need is roughly equal. The majority of students in DC and Alexandria schools are low income, whereas two-thirds of Arlington students are middle income. Thus, while parity between DC and Alexandria makes sense, Arlington is likely overfunding its schools, or Alexandria and DC underfunding theirs.
Falls Church and Fairfax County schools only further defy a sensible trend. Both spend less than the afforementioned districts and both have less low income students. That gives one hope of rationality, until one compares Falls Church and Fairfax to one another. Low-income students are almost non-existent in Falls Church. One out of four is low income in Fairfax, but Fairfax spends $2,000 less than Falls Church per pupil. One might assume Fairfix is just poorer, but no. Both Fairfax and Falls Church are both wealthy by any account, and the average income of adults in Fairfax is actually slightly higher than Falls Church.
Thursday, October 30, 2014
On Monday, the N.M. Court of Appeals upheld the constitutionality of a law requiring the state to provide instructional materials to schools, including private ones. A group of plaintiffs sued the the N.M. Public Education Department and challenged New Mexico's Instructional Material Law that requires the state education department to buy and distribute instructional material to schools "as agents for the benefit of eligible students." NMSA 1978, §§ 22-15-1 to -14. The plaintiffs argued that the law conflicted with several articles of the New Mexico Constitution, including the state's counterpart to the Free Exercise and Establishment Clauses, articles prohibiting the state from investing in private corporations and granting the state exclusive control over education. Finding for the state education department, the Court of Appeals held that "the mere indirect or incidental benefit to the private schools" did not violate the state constitution. The court interpreted the state constitution's prohibition against public funding of "sectarian, denominational or private" schools to have intended only to maintain state control of public schools and keep public schools from becoming sectarian. In rejecting the plaintiffs' arguments based on cases from the U.S. Supreme Court and other states, the New Mexico court stated, "We believe that the legislative intent in promoting the education of all schoolchildren in New Mexico deserves greater weight than the cases cited by Plaintiffs afford." Moreover, the court noted, the books are not given to private schools, but the schools only receive possession of the books as agents for the students. Read Moses, et al., v. Skandera, Acting Sec'y of Education, No. 33,002 (N.M. App. Oct. 27, 2014) here.
Early this month, I posted the story of a five year old special needs student in a New York City public school that was restrained with his hands behind his back in velcro handcuffs for fifteen or more minutes because of his outburst in gym class. Although the 9th Circuit's opinions are obviously have no binding effect on New York City, the 9th Circuit's recent opinion in C.B. v. City of Sonora, 2014 WL 5151632 (Oct. 15, 2014), portends bad new for the New York City schools and others that make it a practice of handcuffing students. The Court in Sonora pointed out that two other circuits had applied T.L.O. v. New Jersey's, 469 U.S. 325 (1985), "reasonableness standard to evaluate whether a school official was entitled to qualified immunity from an excessive force claim" in cases of this sort. But whether applying T.L.O. or Graham v. Connor, 490 U.S. 386 (1989), the Ninth Circuit made it relatively clear that the routine handcuffing of students would be hard to justify. The court reasoned:
Wednesday, October 29, 2014
The American Enterprise Institute recently published a guide to effectively using education lawyers. It is written for administrators and education leaders, but I think it is also an excellent read for education lawyers and students beginning a course in education law. In several respects, it suggests a not too favorable view of education lawyers, emphasizing, for instance, that:
A lawyer’s job is to provide advice, not make decisions, for leaders. But in public education we often see lawyers act as gatekeepers. This means the lawyer, not the leader, frequently makes the final decision on a given course of action. This can play out in two ways.
One way is when a lawyer gives policy advice cloaked as legal advice, reflecting his or her opinion about what an organization should do rather than presenting all of a leader’s legal options and their risks. . . . Another way lawyers act as gatekeepers is when an education leader pushes his or her lawyer to serve as final decision maker, refusing to act until the leader gets his or her lawyer’s blessing.
Tuesday, October 28, 2014
LaJuana just posted on the Leadership Conference's letter to the Department of Education from yesterday. Today eleven more civil rights groups released recommendations to President Obama, Secretary of Education Arne Duncan, Congressional and State Educational Leaders urging increased educational opportunity and equity for students of color through improvements to local, state and federal accountability systems. The full recommendations and letter are here. The major thrust of the recommendation is that rather that the current approach of wide ranging and general education policy reforms, the administration should maintain NCLB's focus on achievement gaps and accountability for them. Moreover, the administration should insist that that states are delivering equal opportunities that would close those gaps. Thus, they recommend:
The Leadership Conference on Civil and Human Rights wrote ED Secretary Arne Duncan yesterday to urge the Department to sustain its federal oversight and monitoring for states to earn Elementary and Secondary Education Act (ESEA) / No Child Left Behind waivers. The group expressed concern that without federal oversight, states would not establish procedures to support low-achieving students in schools missing their testing or graduation rate targets. The group asked Secretary Duncan "to safeguard the rights and interests of the intended beneficiaries of Title I" by approving a state’s waiver request or extension only if the state meets the following conditions:
1.The waiver plan has been reviewed and recommended for approval by a peer review process that is transparent and inclusive of all stakeholders, and particularly of individuals who represent underserved students and families, including English learners and students with disabilities.
2.The state has and will maintain a statewide accountability system that includes:
- Annual numerical targets for all students in all subgroups and all schools and school districts for academic achievement, high school completion and college readiness.
- Effective interventions and supports when one or more subgroups in a school or school district miss these targets.
- Statewide annual assessments that are aligned with college and career-ready standards and meet the standards set in Sec. 1111(b)(3) of the ESEA.
3. The state and its local school district agents have effective systems in place to identify students who are at risk of academic failure or of dropping out and to provide such students with timely assistance and support so that they are prepared to meet college and career-ready standards.
4.The state and its local school district agents have a realistic plan for turning around low-performing schools and providing opportunities for students to attend higher performing schools.
The letter comes as indications emerge that the administration is cooling on the use of standardized testing as measures of teacher effectiveness, which has been a big sticking point in NCLB waivers. Read the Conference's letter here.
A new Hechinger Report article offers a compelling narrative and social science review of the connection between emotional-behavioral disabilities and prison. We typically call this the pipeline, which is catchy, but often strikes me as vague or a rough characterization of a conglomeration of statistics (albeit an effective one). Jackie Mader and Sarah Butrymowicz's article, like others, discusses how children with special education needs are disproportionately involved in the juvenile justice system. Of the thousands of children caught up in the system every year, "[a]t least one in three of those arrested has a disability, ranging from emotional disability like bipolar disorder to learning disabilities like dyslexia, and some researchers estimate the figure may be as high as 70 percent." Moreover, students with emotional disabilities are three times as likely to be arrested before leaving high school than their peers. Beyond those numbers, however, this article struck me as doing something different--revealing more than just a pipeline from point A to B to C. Rather, it suggests a systematic approach to special needs and discipline that is ill-equipped to do anything other than drive a substantial portion of special needs students to incarceration.
Raul R. Calvoz, Bradley W. Davis, and Mark A. Gooden's new article, Constitutional Implications of School Punishment for Cyber Bullying, 2014 Cardozo L. Rev. de novo 104, is available. It addresses the constitutional and legal challenges that may stand in the way of administrators and legislators' attempts to combat cyber bullying. First, since the acts most frequently associated with cyber bullying involve written words, a student's First Amendment right to free speech is implicated. Second, due to the mobile nature of technology, a student's actions outside of school grounds, even if they have an incidental impact on school grounds, raise the question of whether schools have jurisdiction to discipline the students.
The authors frame their analysis within the context of the substantial disruption test from Tinker v. Des Moines. In Tinker, the Supreme Court held that school administrators may regulate student speech if the regulation aims at preventing a foreseeable: (1) material or substantial disruption in the school environment; or (2) invasion of the rights of others. The authors reason that school administrators may, without violating students' constitutional rights, regulate and prohibit any bullying (including cyber bulling) which falls into either of those two categories. However, the jurisdictional question complicates matters.
Monday, October 27, 2014
Last year, the district court in Maryland found the state's higher education system in violation of longstanding desegregation precedent. The state had duplicated several programs in the state that had led to the further racial stratification and segregation in the system. See here for me earlier post on the case.
The National Bar Association is sponsoring a panel on the continuing developments and issues in the case this Friday. Participants include Jay Augustine, Adjunct Professor, Southern University Law Center; John Brittain, Professor of Law, David A. Clarke School of Law, University of the District of Columbia; Dr. Ronald Mason, President, Southern University System, and Danielle R. Holley-Walker, Dean & Professor of Law, Howard University School of Law. Southern University Law Center is hosting the discussion. Contact Professor Tracie Woods, email@example.com (225) 771-4680, for more information.
Thanks to John Brittain for allerting me to Sandra Jowers-Barber's, The Struggle to Educate Black Deaf Schoolchildren in Washington, D.C. , and the important history and decision that allowed deaf African American students to receive special education in Washington, DC without having to travel out of state because the school district maintained a racially segregated school system without even a separate education for the deaf.
Friday, October 24, 2014
In a case that Derek previously posted about here, a federal district court has administratively closed a class-action suit filed by special-needs students against the Mississippi Department of Education. The district court’s order allows either party to reopen the suit for noncompliance with the terms of a September 2014 settlement agreement. Corrie Cockrell, an attorney with the Southern Poverty Law Center that represents the students, told the Jackson Clarion-Ledger yesterday, "We reached an agreement with the state because we felt it was in the best interest of our clients." In the case, E.H. v. Mississippi Dept. of Educ., 2013 WL 4787354 (S.D. Miss. 2013), special-needs students sued the Mississippi Dept. of Education for its failure to force Jackson Public School District (JPS) to comply with the IDEA's mandate of a Free Appropriate Public Education. The Department investigated the complaint against JPS and, after finding IDEA violations, ordered the school district to remedy the violations or risk losing its accreditation. JPS missed two deadlines for compliance, prompting the plaintiffs to sue in federal court. The Department eventually found that JPS corrected the IDEA violations, but the student-plaintiffs found that it was difficult to verify the Department’s findings. The students thus asked for quarterly progress reports in the settlement, Cockrell said, to ensure that JPS is “moving in the right direction.” According to the Clarion-Ledger article, the state set a goal for 71% of children with disabilities to graduate, but just 12% of those in JPS did as of 2012. The state's average graduation rate for students with disabilities is 23%. Read the settlement agreement in E.H. v. Mississippi Dept. of Educ. here.
Thursday, October 23, 2014
Federal law prohibits the U.S. Department of Education from funding for-profit charter schools. See Arizona State Board for Charter Schools v. United States, 464 F.3d 1003 (9th Cir. 2006). Various state laws provide for the same. Thus, the holder of the charter for our nation's charter schools are non-profit organizations. The devil--if there is one--is in the details.
Last week, a Pro Publica article broke down the funding stream in a group of four North Carolina charter schools. They are all owned or chartered by a non-profit organization created by Baker Mitchell, a North Carolina businessmen, political advocate, and free-market adherent. Innocent enough. Numerous businessmen and women engage in philanthropic efforts on a routine basis. Many social movements and services would fail without their help. The rub is that close to half of the $55.7 million dollars in federal, state, and local money that these four charters have received over the past six years has gone to for-profit entities that Baker Mitchell owns or controls. His for-profit company, Roger Bacon Academy, manages the charters and its administrative functions. His other companies own the buildings, desks, computers, and supplies that the charters rent or buy. Moreover, the contracts between the non-profit and these service providers were procured not through a competitive bid process, but through what? Mitchell's school managers talking to Mitchell's property managers? It is altogether possible that Mitchell's businesses are cutting the schools a deal, that there is very little profit in the $19.6 million his companies have taken in, and we should be applauding his efforts. But on its face, the arrangement looks like an indirect means of achieving exactly what the federal and state governments purport to object to.
Wednesday, October 22, 2014
The guidance letter on bullying and harassment of students with disabilities that was issued this week by the Office for Civil Rights of the U.S. Department of Education is noteworthy for a number of reasons. First, it reinforces the point made in other Department of Education communications that bullying of these students, if not adequately addressed by school districts, amounts to a violation of the law even if the conduct is not directly tied to the students’ disabilities. Although unaddressed bullying that is related to the disability is a clear violation of the protection against hostile environments established by the law, there is a separate violation when bullying, of any kind or for any reason, interferes with a disabled child’s receipt of an appropriate education. Second, with regard to hostile environment violations, the letter stresses that even if the conduct of the school officials does not rise to the level of deliberate indifference to known deprivation of rights, a violation of the disability discrimination laws still occurs when, as OCR puts it: “(1) a student is bullied based on a disability; (2) the bullying is sufficiently serious to create a hostile environment; (3) school officials know or should know about the bullying; and (4) the school does not respond appropriately.” There are reasons to be skeptical of the use of a deliberate-indifference standard copied without any modification from Title VI and Title IX in Section 504 and ADA damages cases. As Derek Black pointed out in his illuminating article at 15 Wm. & Mary Bill of Rts. J. 533 (2006), even in equal protection cases courts should apply a standard that is lower than the Title VI-Title IX deliberate-indifference standard. But in any case a deliberate-indifference standard does not limit when OCR should act to stop and prevent violations of the law. Third, OCR provides a helpful set of examples of hostile-environment violations, non-disability-based bullying that nevertheless leads to violation of the discrimination laws, and an appropriate response to bullying that avoids violating the law. The letter should make a strong contribution to remedying disability discrimination.
In 1982 in Plyer v. Doe, the Supreme Court struck down a Texas statute that prohibited school districts from enrolling undocumented immigrant students. The Court held that the statute was discriminatory and unconstitutionally irrational. States have enacted statutes similarly aimed at discouraging immigrant students from enrolling on a few occassions since then. None, however, have gone into practical effect, as all have been deemed unconstitutional in short order. In some instances, legislators allowed that they knew the legislation was unconstitutional, but wanted the Court to revisit the rationale of Plyer v. Doe. The Court, of course, has not done so.
Statutes and policies of this sort remain unconstitutional and fervor for them has died down in the past few years. This year, however, has brought a new, but related problem, particularly in those localities that have seen an influx of unaccompanied minors escaping violence, kidnapping threats, and the like in their home countries. Some school districts say they are overwhelmed by the influx of students, and lacking in the space and resources necessary to serve them. Those excuses, however, would earn the districts no quarter in refusals to enroll the students. Instead, the districts admit the students are eligible to enroll, but have excluded them based on inadequate paperwork and documentation. Yesterday's New York Times tells the story of students in Long Island waiting months to be enrolled in the schools, and points out that the problem is not unique to Long Island:
Tuesday, October 21, 2014
On August 14, 2014, the Department of Education denied Florida's request for flexibility in regard to English Language Learners. Friday, Florida Governor Rick Scott requested that the Department refer that denial over to a hearing before an administrative law judge. In his letter to the Department, Governor Scott's first discusses the merits of its ELL program. The letter then addresses the legal issues raised by the denial. First, he first raises the basic issue of process (and the right to a hearing now). Second, he questions whether the Secretary had the constitutional or statutory authority to condition waivers. On that score, he cites the analysis in my article, Federalizing Education by Waiver?, and a memorandum from the Congressional Research Service to the House Committee on Education and the Workforce Majority Staff, which I must admit I had previously missed, but found instructive and will include in my next draft of the paper.
Like David Barron and Todd Rakoff (in In Defense of Big Waiver) and myself, CRS concludes that the Department of Education has broad power to waive various provisions of No Child Left Behind. On the question of the Department of Education's authority to condition those waivers, CRS's analysis probably falls somewhere between myself and Barron and Rakoff. CRS concludes:
On the other hand, if the Secretary did, as a condition of granting a waiver, require a grantee to take another action not currently required under the ESEA, the likelihood of a successful legal challenge might increase, particularly if ED failed to sufficiently justify its rationale for imposing such conditions. Under such circumstances, a reviewing court could deem the conditional waiver to be arbitrary and capricious or in excess of the agency’s statutory authority. Ultimately, the resolution of such a question would probably depend on the facts of a given case.
Below is OCR's dear colleague letter, released today:
As part of National Bullying Prevention Awareness Month, the U.S. Education Department’s Office for Civil Rights (OCR) today issued guidance to schools reminding them that bullying is wrong and must not be tolerated – including against America’s 6.5 million students with disabilities. The Department issued guidance in the form of a letter to educators detailing public schools’ responsibilities under Section 504 of the Rehabilitation Act and Title II of Americans with Disabilities Act regarding the bullying of students with disabilities. If a student with a disability is being bullied, federal law requires schools to take immediate and appropriate action to investigate the issue and, as necessary, take steps to stop the bullying and prevent it from recurring.
Today’s guidance builds upon anti-bullying guidance the Department has issued in recent years concerning schools’ legal obligations to fix the problem, including:
- A 2013 dear colleague letter and enclosure by the Office of Special Education and Rehabilitative Services (OSERS) clarifying that when bullying of a student with a disability results in the student not receiving meaningful educational benefit under IDEA, the school must remedy the problem, regardless of whether the bullying was based on the student’s disability.
- A 2010 dear colleague letter by OCR which elaborated on potential violations when bullying and harassment is based on race, color, national origin, sex, or disability.
- A 2000 dear colleague letter by the OCR and OSERS, which explained that bullying based on disability may violate civil rights laws enforced by OCR as well as interfere with a student’s receipt of special education under the Individuals with Disabilities Education Act (IDEA).
That the fervor against standardized testing is bubbling over may be best evidenced by the fact that Arne Duncan found it necessary to address the use of standardized tests in a Washington Post op-ed last week. His op-ed walks a very fine line, sympathizing and agreeing with critiques of standardized testing, on the one hand, and defending the tests as a necessary tool for benchmarking students and teachers on the other. His most poignant statement may have been:
To be clear: I strongly believe in using high-quality assessments, including annual tests, as one (but only one) part of how adults improve instruction and hold themselves responsible for students’ progress. With my own kids, I know parent-teacher conferences, grades and other feedback round out the picture of whether they’re on track.
That point, however, is not necessarily in serious contention. Most would allow that tests offer a benchmark for consideration. The new teacher evaluation systems in various states do far more than just "round out the picture." State statutes mandate their consideration in particular ways and with particular metrics that create an entirely new set of motivations for teachers and administrators, and raise an entirely new set of legal issues, hence the series of legal battles brewing in the states.
Monday, October 20, 2014
The U.S. Department of Education published the final regulations for the Violence Against Women Reauthorization Act of 2013 (VAWA) amendments to the Clery Act today. Below is the Clery Center's summary of college campuses' expanded obligations to report, investigate, and resolve incidents of sexual assault, domestic violence, dating violence, and stalking under the new regulations, which require colleges to:
- agree on the law enforcement agencies that will investigate alleged criminal offenses;
- include statements in campus written policies about sexual assault, domestic violence, dating violence, and stalking;
- provide prevention and awareness programs for incoming students and new employees and provide written information to victims;
- allow victims and accused persons to have an advisor, including an attorney, accompany them to meetings;
- establish procedures to follow when an incident of sexual assault, domestic violence, dating violence, or stalking is reported; and
- set procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking;
- disclose in their annual statistics the total number of crimes that were "unfounded”;
- include gender identity and national origin as two new categories of bias for a determination of a hate crime; and
- use updated sex offenses definitions that more closely align with the FBI’s updated definitions and terminology.
In the past months, I have commented on school finance litigation in New York, Colorado, New Mexico, Kansas, Texas, Connecticut, New Jersey, and Mississippi; reports decrying the state of funding in Georgia and Wisconsin; and steps by the Alabama Department of Education to propose constitutional changes to education funding in the state. For those wondering whether suing the state is just what education advocates do or if there is some underlying fundamental problem, a new report by the Center on Budget and Policy Priorities offers a simple explanation (although the report is about data, not school finance litigation). The title of the report, Most States Still Funding Schools Less Than Before the Recession, belies the conclusion. The analysis found that:
- At least 30 states are providing less funding per student for the 2014-15 school year than they did before the recession hit. Fourteen of these states have cut per-student funding by more than 10 percent. (These figures, like all the comparisons in this paper, are in inflation-adjusted dollars and focus on the primary form of state aid to local schools.)
- Most states are providing more funding per student in the new school year than they did a year ago, but funding has generally not increased enough to make up for cuts in past years. For example, Alabama is increasing school funding by $16 per pupil this year. But that is far less than is needed to offset the state’s $1,144 per-pupil cut over the previous six years.