Monday, December 29, 2014
Title IX compliance will be a critical topic at Stetson University’s National Conference on Law and Higher Education Feb. 12-16, 2015, in Orlando, Florida. From the announcement:
Stetson’s definitive annual conference, now in its 36th year, will bring national leading experts in higher education to Orlando to discuss critical developments in higher education law and policy, particulary in Title IX compliance in the wake of campus rape and sexual assault scandals. Conference participants will participate in rigorous boot camps, workshops, intensive sessions and collaboration with peers and experts. “Every educator in America should be concerned with making college and university campuses safer learning environments, and protecting the campus community from sexual predators. Anyone who works in higher education can benefit from this year’s conference, focused on developing the tools to respond,” said conference chair and Professor of Law Peter F. Lake. Professor Lake is the Charles A. Dana Chair and director of Stetson’s Center for Excellence in Higher Education Law and Policy. For more information, call 727-562-7793 or email firstname.lastname@example.org.
Thursday, December 18, 2014
Taylor Bell, a high school student in Mississippi, had heard that some of the male coaches at his school had been sexually harassing female students. Taylor said he did not bring the issue to the administration because it had been warned before and done nothing. Taylor decided to take matters into his own hands. He wrote a rap song about the issue--which I will not reproduce here due to its length--performed it, and posted it to youtube. The song named coaches, recounted allegations, and made a number of provocative allusions. In a monologue preceding the actual rap, he explained his motivations:
A lot of people been asking me lately you know what was my
reasoning behind creating P.S. Koaches. It's . . . something that's
been going on . . . for a long time  that I just felt like I needed to
address. I'm an artist . . . I speak real life experience. . . . The way
I look at it, one day, I'm going to have a child. If something like
this was going on with my child . . . it'd be 4:30. . . . That's just
how it is . . .
He later added that he wanted people, including school officials, to "more clearly understand exactly what [he] was saying" in the song. The next day disciplinary proceedings commenced against him at school. He was suspended and sent to alternative school. According to the district, "Taylor Bell did threaten, harass and intimidate school employees in violation of School Board policy and Mississippi State Law."
Wednesday, December 17, 2014
Second Circuit Finds that District Court Erred in Not Giving Greater Deference to State Review Officer's Findings in IDEA Case
The Second Circuit Court of Appeals recently reversed a federal district court’s ruling granting private school reimbursement for an emotionally disabled student under the Individuals with Disabilities Education Act. The Second Circuit held that the district court should have shown greater deference to a State Review Officer's (SRO) determination that parents seeking reimbursement for the unilateral placement of their emotionally disabled child in a private school had not shown that their placement was appropriate. In doing so, the Second Circuit deferred to the SRO’s determination that the student did not improve academically at private school. The circuit court remanded the case for the district court to affirm the decision of the State Review Officer. The takeaway from the opinion is the Second Circuit will defer to the final decision of the state authorities over conflicting IHO and SRO opinions, particularly when no objective evidence contradicts the SRO’s decision.
The case is Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., No. 13-1594-CV, 2014 WL 6778755, (2d Cir. Dec. 3, 2014), and is also available here. More details of the case after the jump.
Alyson Klein, at Edweek, reports that Republicans intend to introduce a bill to reauthorize the No Child Left Behind Act early next year. This fast track is counter to the general consensus just three months ago, which predicted reauthorization would not occur until 2016 at the earliest.
The major idea in this reauthorization is to end the federal mandate of yearly standardized testing. Testing would fall within the discretion of states. Some would surely keep it. Others would drastically reduce it. This move might split portions of the Democratic party. Teacher Unions support the move, but civil rights advocates likely would not. After all, civil rights groups were initially big supporters of NCLB because it would shine a light on achievement gaps. But if Republicans are behind the bill and Democrats split, the bill stands to garner widespread support.
Ditching annual tests, however, would create a huge practical problem for both sides. Without those tests, the teacher accountability systems that have swept the nation, and are a signature piece of NCLB waivers, will not work. Republicans, education reformers, and anti-labor forces have been staunch supporters of these systems. The administration believes these systems can transform the teaching profession. Surely Secretary Duncan and the President recognize this. Do any of the bill's drafters? Probably so, which begs the question of whether passing this bill in the House and Senate is posturing, short-term thinking, an over-reaction to NCLB waivers, or well-intended policy.
Tuesday, December 16, 2014
In an Op-Ed the Philadelphia Inquirer, Secretary Duncan weighed in on funding inequity in Pennsylvania and the nation in general. He wrote, "until some glaring funding injustices are fixed, in Philadelphia and in many school systems around the country, we will never live up to our nation's aspirational promises of justice." He cited heavy reliance on local property taxes to fund education as the source of our problems. The result, he said, is to make the quality of education dependent on geography, which disparately impacts the highest need, lowest-income students. "The key to a fair funding formula is quite simple: Target aid to students who need it most, and adjust current levels of state aid to the districts that are already well supported," he wrote.
This is welcome commentary to school funding advocates and scholars. It mimics what they have said for decades. Duncan penned a similarly welcome Op-Ed on school segregation a year ago. Unfortunately, although there are exceptions, Duncan's activity on these issues has larger been confined to op-eds. In the last year, the Department has issued helpful policy guidance on both issues, but that guidance only came after several years of charters, curriculum, and teacher reform. Those latter agendas might be useful, but none of them touch fundamental inequalities in regard to funding and race. In other words, op-eds and stated intentions to begin tacking discrimination pale in comparison to what the Secretary has done in other areas.
One might excuse the Secretary on race (although I do not) because of the tight rope the Supreme Court requires him to walk, but the failure to address school funding inequity begs the question of what the Department's purpose is. Title I of the ESEA--probably the most important piece of legislation the Department oversees--was designed as a remedy to resource inequity and segregation in the 1960s and 1970s. Since then it has drifted far from its mission. Scholars and advocates have documented its numerous flaws and proposed reasonable solutions. Those solutions, nor anything approximating them, have been found in any of the Secretary's recommendations for reauthorizing Title I or his competitive grant programs.
Friday, December 12, 2014
SMU Enters Compliance Agreement with OCR to Correct Title IX Violations in Handling Sexual Assault and Harassment Complaints
The U.S. Department of Education, Office for Civil Rights (OCR), released its findings yesterday that Southern Methodist University (SMU) failed "to promptly and equitably respond to complaints, reports and/or incidents of gender and sexual harassment of which it had notice." OCR's investigation letter is here. OCR investigated three complaints by SMU students between June 2011 and March 2013 alleging gender harassment, sexual harassment, and sexual assault. One complaint alleged that SMU violated Title IX when the school failed to appropriately respond to a male student's report that he had been sexually assaulted by another mail student, and that SMU also failed to protect him from the retaliatory actions of the alleged perpetrator’s fraternity brothers and friends. The victim was subjected to taunting and harassment on campus after reporting the sexual assault. SMU did not conduct its own investigation of the complainant’s sexual assault allegation, and the complainant alleges that the school discouraged him from reporting the incident to off-campus law enforcement. A second complaint was from a former SMU employee who alleged that SMU's policies subjected female students to sexual harassment and staff members who complained were retaliated against. Another complaint involved a SMU law student whose law professor referred to her during class sessions and meetings at his home as a “prom/beauty queen,” “hired bimbo,” “bitchy,” “catty,” and “doody blonde." Although SMU investigated the complaint and required the professor to receive sexual harassment training (but did not require the law professor to write a letter of apology to the complainant), OCR noted that SMU never informed the complainant of the results of its investigation. As part of its compliance agreement with OCR, SMU has agreed to:
- Revise and, following the office's review and approval, finalize its "interim" Title IX grievance procedures.
- Create a pocket-sized card for all SMU employees with information about how to support students who report sexual misconduct and a checklist for staff members who may meet with a student to outline their rights and the resources available; clearer protections against retaliation.
- Develop bystander intervention training.
- Develop a procedure for sharing information between the SMU police and the school's Title IX coordinator.
- Notify students and employees about the university's Title IX coordinators and their contact information in its nondiscrimination notice and in other publications.
- Track harassment reports, investigations, interim measures, and resolutions.
- Train staff and students on the revised university policies and procedures.
- Conduct annual climate surveys.
- Reimburse the law student complainant for university-related expenses and counseling.
For those who missed it, the New York Times ran a story Wednesday on discipline disparities for African American females, telling the experience of two young African American girls. The first was described by teachers as very focused, but after she and a white friend scribbled some words on a bathroom stall, things fell apart. Her part was to write the word "hi." The school's response was to suspend her, accuse her of vandalism and demand $100 in restitution. When her family said it could not pay that amount, she received a visit from a police officer, who served her with papers accusing her of a trespassing misdemeanor and, potentially, a felony. The final result was a summer on probation, a 7 p.m. curfew, 16 hours of community service, and a letter of apology. Her friend was able to pay restitution and escaped juvenile justice consequences. Most poignant, however, was the emotional harm and anxiety that she experienced (as well as the girl in the second story). One girl's mother called it the equivalent of child abuse.
Thursday, December 11, 2014
The Fordham Institute commissioned Stanford's CREDO center to do an in depth look at Ohio's charter schools. CREDO has produced two national studies of charters, which most consider to be the gold standard, so their findings in regard to a particular state were sure to carry weight. The Fordham Institute, a staunch supporter of charters, calls the results sobering. The report found:
Compared to the educational gains that charter students would have had in a
traditional public school (TPS), the analysis shows on average that students in Ohio
charter schools perform worse in both reading and mathematics. The impact is
statistically significant: thinking of a 180-day school year as "one year of learning",
an average Ohio charter student would have completed 14 fewer days of
learning in reading and 36 fewer days in math. There are positive notes found
in the analysis. For example, students in urban charter schools in Ohio post
superior yearly gains compared to the statewide average student
performance; this finding is unique among the numerous state studies that
CREDO has completed. Another positive result is the learning gain superiority
for students in poverty and especially for black charter students in
poverty: their progress over a year's time outpaces that of equivalent TPS
Wednesday, December 10, 2014
Should the Education Department withhold federal funds from states and school districts that are failing to comply with the conditions on the funds? As the Supreme Court noted in NFIB v. Sebelius, the 2012 case about the Affordable Care Act, federal funding for education is second only to federal funding for Medicaid. It's therefore critical to understand this important enforcement mechanism. Although funding cut-offs are a powerful tool -- think desegregating southern schools in the 1960s through the combination of Title VI and the Elementary and Secondary Education Act -- they are a controversial one. In my forthcoming article in Yale Law Journal, Agency Enforcement of Spending Clause Statutes: A Defense of the Funding Cut-Off , I unpack the controversy, focusing on federal grants more generally, not just education grants, but I use a lot of education examples throughout, given the importance of federal funding to federal education law.
The abstract explains:
[F]ederal agencies ought more frequently to use the threat of cutting off funds to state and local grantees that are not adequately complying with the terms of a grant statute. Scholars tend to offer four arguments to explain — and often to justify — agencies’ longstanding reluctance to engage in funding cut-offs: first, that funding cut-offs will hurt the grant program’s beneficiaries and so will undermine the agency’s ultimate goals; second, that federalism concerns counsel against federal agencies’ taking funds away from state and local grantees; third, that agencies are neither designed nor motivated to pursue funding cut-offs; and fourth, that political dynamics among state governments, Congress, the White House, and the agencies themselves make funding cut-offs difficult to achieve. This article argues that these critiques are deeply flawed. Among other problems, the critiques fail to account for the variety of types of grants, grant conditions, and rationales for grantee noncompliance; reflect lack of a nuanced understanding of the ways in which distinct federalism concerns play different roles at different times in the development and implementation of grant programs; and unrealistically assume static and unified agency incentives and political relationships. After debunking these critiques, the Article offers a new conception of the potential benefit of funding cut-offs in the enforcement of federal grant programs: the threat of a funding cut-off may be appropriate when it can promote change by the noncompliant grantee and when it can signal to other grantees that the agency is serious about enforcement, thereby increasing grantees’ compliance. The article concludes by assessing the implications of this argument for administrative regime design and judicial review. This work opens up new avenues for research in administrative law on the distinct features of the federal grants regime.
Tuesday, December 9, 2014
An Arizona school district joins Texas and Ohio in facing content-based challenges to school textbooks that Derek has discussed on this blog here and here. Arizona’s Gilbert Public Schools Governing Board has announced that it will delay deciding how to redact references to abortion in several of its textbooks, including a biology textbook used in the district’s honors classes. The Board members reportedly disagree about how to comply with an Arizona law that prohibits schools from presenting any information about elective abortion “that does not give preference, encouragement and support to childbirth and adoption as preferred options” (A.R.S. 15-115). The board voted 3-2 at an Oct. 28 meeting to redact pages from its textbooks given to students that do not offer childbirth and adoption as preferred options to elective abortions. Late in November, however, some board members challenged whether A.R.S. 15-115 requires that all abortion references be removed (including terms such as “spontaneous abortion,” an alternate term for a miscarriage), or simply those that discuss elective abortions. Gilbert’s District Superintendent Christina Kishimoto has said that schools can keep the textbooks intact and still comply with the statute by offering instruction on abortion alternatives. The school board’s decision has attracted national media interest, including a coverage by the New York Times and MSNBC’s Rachel Maddow show.
Last week, the Department of Public Instruction "highly recommend[ed]" that social studies teachers use the curriculum it is paying The Bill of Rights Institute, a purportedly conservative group, to develop. The Institute receives grants from the Koch brothers, who are extremely politically active and conservative, and their foundations. It is also worth noting that the state contract to develop materials was sole-sourced to the Institute. The state's explanation was that the Institute was the only one qualified to develop a founding principles curriculum. Harry Watson, a history professor at UNC-Chapel Hill, said "I think the Koch brothers have demonstrated they have a strong and active partisan interest in politics,” he said. “I don’t think the public school curriculum should be written from a partisan perspective.”
The Institute may very well produce a balanced curriculum. In that event, the sole sourcing of the materials may be the only question, but if the final curriculum is intentionally skewed, it will implicate the same legal issues I discussed last week in regard to Texas's recent textbook selections. North Carolina teachers, however, still question why the Department of Public Instruction is dictating specific curriculum in social studies because it does not in other areas. Moreover, local teachers indicate that they are already using the founding documents and discussing their principles in class. Thus, the Institute's curriculum will either be redundant of their current teaching practices or, they fear, impose a narrow perspective of the founding principles.
Monday, December 8, 2014
The federal government just released this guidance:
Secretary Arne Duncan and U.S. Attorney General Eric H. Holder today announced the release of a Correctional Education Guidance Package to help states and local agencies strengthen the quality of education services provided to America’s estimated 60,000 young people in confinement every day. This guidance package builds on recommendations in the My Brother’s Keeper Task Force report released in May to “reform the juvenile and criminal justice systems to reduce unnecessary interactions for youth and to enforce the rights of incarcerated youth to a quality education.”
The Criminal Justice Section, Council for Racial and Ethnic Diversity in the Education Pipeline, and the Hispanic National Bar Association are hosting a town hall forum, The School-to-Prison Pipeline: What Are the Problems? What Are the Solutions? on February 6, 2015 in Houston.
To register, click on link to obtain Town Hall registration form at www.ambar.org/corej. Register for 2015 ABA Houston Midyear at ambar.org. For more information about the School-to-Pipeline initiative, visit the above website or contact Rachel Patrick, Director, ABA Coalition on Racial & Ethnic Justice at Rachel.Patrick@americanbar.org or (312) 988-5408.
The Arizona State University Law Journal will host a Symposium on Education and Civil Rights in Indian Country. The Symposium will be held in conjunction with a Town Hall forum on the School to Prison Pipeline (see below for more on the Town Hall series). The conference will bring together individuals to discuss pipeline concerns, experts who have developed successful programs and projects across the country to address pipeline issues, and individuals and organizations from diverse backgrounds who are working toward solutions to this issue.
The Arizona State Law Journal is seeking papers on the School to Prison Pipeline or on aspects of Education and Civil Rights in Indian Country. Interested authors and researchers would be expected to present their work at ASU on the morning of March 27, 2015 and to stay to contribute to the Town Hall that afternoon.
Anyone interested in participating should submit a proposal no later than January 8, 2015. Selected participants will be notified byJanuary 22, 2015.
Outlines are due March 13, 2015. Draft papers are due by March 27, 2015 and final submissions are due by July 31, 2015.
Proposals should include:
- Statement of interest
- Title of the presentation
- Name, school/organization, phone number and email address of the presenter(s)
- Short summary of the intended topic and approach
Proposals can be submitted here.
Friday, December 5, 2014
Two years after the Tucson Unified School District (TUSD) ended its old Mexican-American Studies (MAS) curriculum, the district continues to be pulled between Arizona politicians’ disapproval of ethnic studies classes and TUSD’s efforts to show remedial progress in the federal desegregation case brought against the district in 1974. Arizona education officials increased the pressure on TUSD this Tuesday making a surprise visit to an ethnic studies class to determine if the district is violating a state law that prohibits any class that promotes “the overthrow of the United States government,” racial resentment, and “ethnic solidarity instead of the treatment of pupils as individuals” (HB 2281). After HB 2281 was passed and the state threatened to withhold ten percent of the district's funding, TUSD closed down the MAS program in 2012. TUSD’s school board subsequently began offering ethnic studies courses after a federal court ordered the district to develop a culturally responsive curriculum as a part of its remedial action in Fisher and Mendoza v. TUSD, the federal court desegregation case.
The state officials’ compliance visit was reportedly prompted by comments that a TUSD high school principal made at the National Association of Multicultural Educators that the district was once again offering culturally responsive classes. The Arizona education department wrote TUSD in late November, asking the district to turn over all assessments, assignments, lesson plans, student work, and materials used in classes that have a “culturally relevant” focus.
Coincidentally, the officials’ visit comes on the heels of a new study linking the MAS program to higher student achievement. The study, Missing the (Student Achievement) Forest for All the (Political) Trees: Empiricism and the Mexican American Studies Controversy in Tucson, links the defunct MAS program with increased graduation rates and standardized-testing results for students who participated in the program from 2006 to April 2012. The study by Nolan L. Cabrera, Jeffrey F. Milem, Ozan Jaquette, and Ronald W. Marx (Arizona) is available in the American Educational Research Journal here.
Meanwhile, Arizona seeks to intervene in the desegregation case in Fisher, arguing that the state has an interest in ensuring that TUSD’s current ethnic studies classes do not “foster resegregation along ethnic and racial lines.” A Ninth Circuit Court of Appeals panel heard Arizona’s request to intervene in Fisher this November. Counsel for the Department of Justice opposes Arizona’s intervention, arguing to the Ninth Circuit panel that “Arizona has no ‘protectable interest in this suit’” because the MAS program was ended. The video of Arizona’s oral argument before the Ninth Circuit in November is here. The Ninth Circuit is scheduled to hear oral arguments in the main case in January.
Given the size of its student population, the Texas Board of Education's decisions about which books to approve and purchase have an enormous effect on the overall market. The Board's deliberations seem to get more and more political each year. Last year, I posted on the Board's ongoing saga to select biology books that included creationism, and I referenced its 2010 decision to adopt history and economics books with a decidedly conservative slant. Late last month, they were at it again.
According to local reports, the state has approved new history textbooks with even more revisionist history in them. The Texas Freedom Network indicates, for instance, that "the new textbooks also include passages that suggest Moses influenced the writing of the Constitution and that the roots of democracy can be found in the Old Testament. Scholars from across the country have said such claims are inaccurate and mislead students about the historical record."
The Supreme Court has recognized that the state and its schools have the right to promote and inculcate values and good citizenship, but in Island Tree School District Board of Education v. Pico, 457 U.S. 853 (1982) and West Virginia v. Barnette, 319 U.S. 624 (1943), the Court emphasized the authority has its limits. The state cannot forcefully indoctrinate students or intentionally subvert access to information. Deciding which side of the line educators' actions falls on can be difficult, but in Loewen v. Turnipseed, 488 F. Supp. 1138 (N.D. Miss. 1980), the district court confronted a situation analogous to the ongoing saga in Texas.
In Loewen, the state had refused to include Mississippi: Conflict and Change--which told the less than laudatory history of discrimination in Mississippi--on the state's list of approved history books, but had included another book that, according to plaintiffs, was a "symbol of resistance to integration in Mississippi schools." The court did not strike the latter book, but did find the exclusion of the first was unconstitutional based on the aforementioned cases. Key in Loewen were procedural anomalies and problematic comments on the record by the state in regard to Mississippi: Conflict and Change.
The Poverty and Race Research Action Council noted yesterday in its weekly update that
The Department of Education continues to take small but important steps toward embracing school diversity as a department-wide priority - most recently in its proposed priorities for charter school funding programs, which will add a school diversity priority to some of its future charter funding rounds, and which notes that "a critical component of serving all students, including educationally disadvantaged students, is consideration of student body diversity, including racial, ethnic, and socioeconomic diversity. This proposed regulatory action encourages broad consideration of student body composition, consistent with applicable law, as charter schools are authorized and funded and as best practices are disseminated." 79 Fed. Reg. 68821 (November 19, 2014)
Thursday, December 4, 2014
ACLU and Community Legal Aid Society File Segregation Complaint Against Delaware Charters, Call for Moratorium
Yesterday, the ACLU of Delaware, ACLU Racial Justice Project and Community Legal Aid Society filed a complaint with the Office of Civil Rights asserting that Delaware’s charter school policies discriminate against students of color and students with disabilities. They also perpetuate segregation. “We hope that the Office of Civil Rights recognizes that any system of selection that has the effect of almost completely excluding children with disabilities from the ‘high-achieving’ charter schools is deeply disturbing and must constitute illegal discrimination,” says Dan Atkins, Legal Advocacy Director of the Disabilities Law Program of Community Legal Aid Society, Inc.
The complaint asserts that "over three-quarters of charter schools operating in Delaware are racially identifiable. High performing charter schools are almost entirely racially identifiable as White. Low income students and students with disabilities are disproportionately relegated to failing charter schools and charter schools that are racially identifiable as African American or Hispanic, none of which are high performing." They assert charter schools are also increasing segregation in traditional public schools.
They ask for the following solutions to the problem:
Wednesday, December 3, 2014
The Mississippi Law Journal's symposium edition focusing on education law is now available at 83 Miss. L.J. 671 (2014). Although the symposium edition covers a range of national education issues, it comes at an important time in Mississippi, as the state faces an education funding lawsuit and as its governor and lieutenant governor square off this week against state education officials over scrapping the Common Core standards that the state adopted in 2010. The introduction by Prof. Kerry Brian Melear (Mississippi) and Mary Ann Connell summarizes the symposium's articles:
Plaintiffs Secure First Victory in Nation Challenging Federal Role in Common Core, But Reasoning Is Unclear
The skepticism I expressed in September regarding a lawsuit challenging Missouri's funding of the consortium developing Common Core standards and assessments may have been misplaced, at least, for now. Plaintiffs claimed that the state funding of the consortium amounts to an "illegal interstate compact" that cedes state sovereignty over education to the consortium. They also charged that the U.S. Department of Education's funding of the consortium was not authorized by Congress. As I have noted several times, there are plenty of legal flaws to go around with how the federal government has rolled out teacher and Common Core policy, but an unauthorized funding of a consortium did not appear to be one of them.
Nonetheless, plaintiffs in the case have secured the first victory in the nation implicating the U.S. Department of Education. Prior cases all involved purely state law issues and contests of power between the state executive and legislative branch. This current case, however, is curious in that it claims the U.S. Department of Education's action was unconstitutional, but the complaint does not name the Department as a defendant. In that respect, it seeks to keep the case state based and the feds out of it, while still claiming their unconstitutional action is central to the case.