Friday, February 27, 2015
This week, the parties in Sheff v. O'Neill reached an agreement to expand the state's inter-district integration remedy. An additional one thousand seats will become available in Hartford's magnet school program, for which students from the suburbs may apply. An extra 325 seats will also become available in the suburban districts for Hartford city students to fill. This extended and expanded remedy flows from the Connecticut Supreme Court's seminal decision in 1996 in Sheff, holding that the extreme racial isolation in Hartford's schools, and the state-drawn district lines that locked those students in, deprived the students of the state constitution's guarantee of equal educational opportunity. This inter-district program is the one the New York Times has been referencing in recent weeks as a model for New York to consider in addressing its own extreme segregation.
The Sheff Movement coalition is organizing two briefings this coming Monday. It offers this primer:
The Sheff school integration plan is one of the best things happening in Connecticut right now. Tens of thousands of children are benefiting and many more could benefit if the state took a more ambitious approach. The Sheff Movement coalition is disappointed at the slow progress represented by this one-year plan - but we are encouraged that the parties are committed to a new mediation process to set long term goals. We hope the governor can bring the same kind of ambitious vision to quality integrated education as he has shown in his plans for the state's transportation future.
Thursday, February 26, 2015
Earlier this year, I posted on the strong shift in approach to reauthorization of the Elementary and Secondary Education Act and how it was placing the federal role in education in jeopardy. Such a shift would have undone much of the work of the past two decades to increase the federal role in education (putting aside whether that work was substantively good or bad). Secretary Duncan's comments at the time demonstrated strong objections to that approach, from which one might have inferred that the President would veto legislation that sought that end. Since then, Republicans have pressed on in their intent to change the federal role. Yesterday, President Obama explicitly indicated that he would veto the current bill that is under consideration. See more here. Now that the veto question seems to be answered, will the parties go back to the drawing board or move forward for the sake of posturing? If the latter, it seems we will not see a reauthorization of ESEA any time soon after all.
Wednesday, February 25, 2015
My Dynarksi's recent essay summarizes new studies on teacher mobility, particular the mobility of high quality teachers. A North Carolina study and federal pilot program demonstrate the capacity of public policy to incentivize some teachers to move where they are most needed. From these findings, he proposes that the Elementary and Secondary Education Act require schools to monitor teacher effectiveness and reassign them based on effectiveness.
The Institute of Education Sciences tested something like this approach on a small scale. As part of its study, high-performing teachers were offered financial incentives to move to low-performing schools. Only one or two teachers were moved to any one school. The study found that high performers resulted in an improvement of an entire grade level’s test scores. If the high performer were a fifth grade teacher, for example, the entire fifth grade improved its test scores from fourth to fifth grade. The high performer’s class generally improved the most, but that improvement was so large it was enough to move the whole grade level up.
This fix is about as low-risk as one can get to improve performance of a whole school, like ensuring the U.S. wins an Olympic gold medal in basketball by putting ten NBA all-stars on its team.
Tuesday, February 24, 2015
This past summer the trial court in Vergara v. State struck down California's tenure statutes and its last-in-first-out rules for layoffs. A copycat suit followed in New York shortly thereafter. You can find posts on those cases here and here. Given the momentous nature of the case and the litigants' intent to spread the theory across other states, serious consideration of the issues the case and theory raise are incumbent. Here is a summary of my analysis:
Reformers argue that ineffective teaching is the linchpin of educational inequality and failure. Starting in 2010, they successfully sought important changes in teacher evaluation systems at the state and federal levels. But a fundamental source of teachers’ strength to resist more aggressive reform remained in place: tenure. Thus, in 2012, reformers theorized a novel constitutional strategy to eliminate tenure. They argued that tenure leads to the retention of ineffective teachers, and that ineffective teaching deprives students of the constitutional right to education embedded in state constitutions. This theory immediately caught hold, with a California trial court striking down tenure in 2014 and litigation commencing in other states weeks thereafter.
The outcome of this litigation movement will determine both the future of the teaching profession and the scope of the constitutional right to education. To date, however, no high court or scholar has thoroughly analyzed the theory. This article offers that first analysis, concluding that the constitutional challenge to tenure raises a theoretically valid claim, but lacks a sufficient empirical basis. At the theoretical level, the tenure challenge easily falls within broadly worded precedent that establishes students’ constitutional right to an equal and adequate education. If ineffective teaching deprives students of equal or adequate education, state constitutions should protect against it. But in the context of school funding cases—where the relevant precedent was first developed—courts have demanded that litigants precisely demonstrate multiple aspects of causation and harm. Evidence on those points is lacking in regard to tenure.
This split between theory and fact requires courts to proceed cautiously. Rejecting current tenure challenges on their face would unfairly prejudice future legal challenges to teacher quality, particularly those predicated on potential empirical advances in social science. A facial rejection would also require courts to narrow the existing scope of the constitutional right to education. This narrowing would negatively affect education rights in other important and developing contexts. The solution is to insist on more detailed evidence to support plaintiffs’ causal theories and presumed remedies. By doing so, courts can validate students’ constitutional right to education without venturing into unsettled policy debates.
My full analysis and article, The Constitutional Challenge to Tenure, are available here.
The Paterson (NJ) Public Schools reportedly has had problems for years in delivering special education services, and the New Jersey Department of Education has again cited the district. The NJDOE's latest action was prompted by a lawsuit filed by a school psychologist who alleged that her supervisors directed special education staff members to change students’ Individualized Education Programs (IEPs) without their parents' approval. The NJDOE previously cited the Paterson Public Schools in 2011 and 2013 for failing to provide adequate special education services, prompted by lawsuits by the Education Law Center. Read more here.
Thursday, February 19, 2015
Nearly two years ago, I posted on a bizarre case, Hill v. Madison County School Bd., 2013 WL 3712330 (N.D.Ala.,2013), in which a student had been sexually harassed by another on multiple occasions. The student apparently had harassed several other students as well. The school's solution was purported to catch the harasser in the act, so that it might exact a full punishment on him. Thus, two teachers convinced the plaintiff to agree to the harasser's proposition to meet him in the bathroom. They notified the principal of their plan. The plan, however, went awry because no one came to the bathroom in time. By the time the teachers arrived, the boy had already pulled down the girl's clothes and attempted to have sex with her against her will. She then filed a lawsuit against the district under Equal Protection, Title IX, Substantive Due Process, and state law.
The trial court rejected her claims. The case has finally made its way to the 11th Circuit Court of Appeals. Because the victim is no longer a minor and her identity has gotten out, the media coverage is beginning to heat up. CNN recently conducted an interview with the victim. As my prior post notes, the precedent on these types of cases is very unfavorable to plaintiffs. If every there were a case to create a crack in that precedent, however, this may be the one.
Wednesday, February 18, 2015
The Education Law Association invites proposals for its November 2015 conference in Cleveland, Ohio on topics and perspectives that may be underrepresented in ELA conference programming or that reflect the full range of ELA’s membership (e.g., higher education and K-12, private and public schools, plaintiff side as well as defendant). Proposals will be favored that include presenters from multiple membership constituency groups (e.g., professors, attorneys, administrators). Prospective presenters are strongly encouraged to use the ELA Facebook and LinkedIn groups to note your own interest in presenting on a topic in order to gauge the interest of other prospective presenters on the topic you are considering, to identify topics for which no one else appears yet to be considering submitting a proposal, and possibly to identify co-presenters. Submit a proposal here.
Richard Kahlenberg thinks so. In a new essay in the Atlantic, Saving School Choice Without Undermining Poor Communities, he discusses the Republican insistence on increasing school choice and making Title I funds portable in the proposed reauthorization of the Elementary and Secondary Education Act. Democrats are resisting portability. Moving money to private schools would undermine public education itself, while moving money within public schools could lead the the rich schools becoming richer while the neediest become poorer.
Kahlenberg points out that socio-economic integration has proven to be a more effective and cheaper means of improving educational outcomes than increasing funding in high poverty schools. The "principle of portability, in fact, has in it the seeds of a solution to reduce economic segregation through public-school choice—if, and only if, portability is properly structured. In order to accomplish this, portable federal Title I funding, as well as state and local funding, would need to be weighted heavily enough to give poor kids sufficient money in their 'backpacks' that middle-class public schools would want to recruit them to attend."
Current proposals offer too little in the way of financial incentives to fundamentally alter student enrollment trends. "But," Kahlenberg remarks, "every school has his price. What is the magical amount of extra money low-income students should have in their backpacks to be attractive to middle-class schools? That’s an empirical question that surveys of school administrators could answer definitively. Meanwhile, past experience shows that financial arrangements can be made to assuage middle-class schools."
An important piece of the puzzle that no one other than Kahlenberg is hitting upon is the need to hold the original school harmless. If the program actually grew to the point where it was leading to substantial transfers, the remaining students in the high poverty schools would be harmed through no fault of their own, as Democrats fear. The easy--albeit costly solution--is to expand the financial pot and allow the high poverty schools to retain, at least, a portion of their funding. Kahlenberg notes that the political and practical success of the St. Louis, Missouri, interdistrict transfer program was due the fact that it both incentivized suburban districts to take urban students while also protecting the urban schools left behind. "The state also set aside some financial aid for St. Louis schools to offset the loss of funding to its urban campuses."
Of course, the devil is in detail. For a more detailed discussion of how Congress might use Title I funds to both integrate schools and meet existing need in high poverty schools, see pages 366-371 of this article. The question is not whether we can do this, but whether a critical mass in Congress is willing to acknowledge the solution and entertain a meaningful compromise between the competing positions.
Tuesday, February 17, 2015
"As part of its work to conduct a congressionally mandated national assessment of how well the IDEA is achieving its purposes, the U.S. Department of Education's Institute of Education Sciences (IES) contracted with American Institutes for Research (AIR) to investigate variation in school practices through the Study of School Accountability for Students with Disabilities." That study is now available here. The study provides "policy-relevant" information on how students with disabilities are being educated "by examining their inclusion in school accountability systems, and the use of school practices that may relate to their educational outcomes, in both schools that are accountable and schools that are not accountable for the performance of the SWD subgroup." The study aims to answer the following questions:
- How do school characteristics and staffing differ between SWD-accountable and non-SWD-accountable school?
- How do school programs and student support strategies differ between SWD-accountable and non-SWD-accountable schools?
- How do instructional time and settings differ between SWD-accountable and non-SWD-accountable schools?
- How do teacher collaboration and professional development differ between SWD-accountable and non-SWD-accountable school?
Monday, February 16, 2015
The Schott Foundation has released its 5th edition of the 50-State Report on Public Education and Black Males. Explaining this focus, John Jackson remarks:
While all lives matter, we cannot ignore the fact that, as this reports once again reveals, Black male students were at the bottom of four-year high school graduation rates in 35 of the 48 states and the District of Columbia where estimates could be projected for the 2012-2013 school year (Latino males are at the bottom in the other 13 states). This fact provides clear evidence of a systemic problem impacting Black males rather than a problem with Black males. Simply stated, while most will say Black lives matter and are important, the four-year graduation results in this report indicate that most states and localities operate at best, and have created at worse, climates that often don’t foster healthy living and learning environments for Black males.
It is widely accepted in policy and administration that you measure what matters. Yet, as we highlight in this report, in most states and localities it is easier to find data on the incarceration rates of Black males than their high school graduation rates, or any other data that reinforces Black males’ positive attributes.
But he also adds:
although this report historically focuses on Black males (and state level data on Latino males), we highlight in each edition the systemic disparities that are identifiable by race, ethnicity or socio-economic status impact all.
A summary of the findings indicates:
Black males graduated at the highest rates in Maine, Idaho, Arizona, South Dakota and New Jersey — each with estimated graduation rates of over 75%. The majority of the states with the top ten highest Black male graduation rates have smaller than average Black male enrollment. New Jersey and Tennessee were the only two states with significant Black male enrollments to have over a 70% Black male graduation rate.
[S]ates with the lowest estimated graduation rate for Black males [include] Georgia, Michigan, Ohio, Louisiana, Indiana, Mississippi, South Carolina, Nebraska, the District of Columbia and Nevada, each at 55% or less.
With over a 25-percentage point gap respectively, Connecticut, New York, Michigan, Illinois, Indiana, Ohio, Nebraska, Nevada, Minnesota, Pennsylvania and Wisconsin have some of the largest gaps between the Black male graduation rate and the White male graduation rates. The majority of the states with the largest gaps are in the Midwest region of the country.
The the full report and supporting materials here.
Friday, February 13, 2015
Yesterday, Advocates for Children of New York released, Civil Rights Suspended: An Analysis of New York City Charter School Discipline Policies. Based on a review of 164 New York City charter school discipline policies obtained through Freedom of Information Law requests, the report finds that "[a] significant number of City charter schools have discipline policies that fail to meet the legal requirements, leading to violations of students’ and parents’ civil rights. The report includes recommendations for state legislators to consider as they discuss raising the cap on charter schools and ensuring that charter schools serve high-needs students."
“We hear from parents who celebrated winning the charter school lottery only to have their students face repeated suspension or expulsion from school with no opportunity to challenge it,” said Paulina Davis, AFC Staff Attorney. “Students do not give up their civil rights when they enter charter schools. We urge the State to ensure that all charter schools have discipline policies that meet legal requirements.”
Recognizing this problem two years ago, Advocates for Children also released a practical how-to guide for families how are experiencing or have experienced suspension at a charter school.
Thursday, February 12, 2015
New Jersey State Court Finds That Pledge of Allegiance Statute Does Not Violate the State Constitution
A New Jersey Superior Court found this month that a state statute requiring schoolchildren to recite the pledge of allegiance (and its "under God" phrase) did not violate the state constitution's equal protection and establishment clauses. Given that the Massachusetts Supreme Court decided a similar case last May (Jane Doe v. Acton-Boxborough Regional School District), the more recent ruling adds to the cases finding that the pledge of allegiance ceremonies in schools are constitutionally permissible. In the February 2015 case, American Humanist Ass’n v. Matawan-Aberdeen Reg. Sch. Dist., the lead plaintiffs were parents of schoolchildren who challenged New Jersey's pledge statute that required schools to include a salute to the U.S. flag and recitation of the pledge of allegiance each day. The plaintiffs, along with the American Humanist Association, alleged that children who do not participate are nevertheless having the pledge's religious language imposed on them and could suffer exclusion if they choose not to participate. The state court found that the statute did not implicate children's religious freedom because participation in the pledge is voluntary. The court also found that expunging the words "under God" from the pledge was unnecessary because the purpose of public schools is to foster ideas without requiring students to adhere to them. The court rejected the equal protection claim, finding no proof that the plaintiffs' children were discriminated against because of their beliefs. Read American Humanist Ass’n v. Matawan-Aberdeen Reg. Sch. Dist., No. 1317-14 (N.J. Super. Ct. Feb. 4, 2015) here.
D.C. Public Schools chancellor Kaya Henderson recently announced an “Empowering Males of Color” initiative and the district's intent to open a single sex high school for boys in 2017. The purpose of the school would be to focus on the unique educational challenges and needs of Black and Latino boys, whose achievement is the lowest in the district. That plan is now drawing serious criticism and scrutiny. D.C. Council member Mary Cheh has requested that the district's attorney general investigate the legality of the program and the school. Chen, speaking of the potential unfairness to girls, explains:
What I’m saying is that you can’t just do for one group what you’re not doing for another. ... Even if their scores are a little bit better, both groups’ scores are abysmal. ... You have to provide substantially equal opportunities to the other group. That’s all I want. I want all of them to be better off.
Michael Myers, of the New York Civil Rights Coalition, then filed his own letter.
Wednesday, February 11, 2015
In November, plaintiffs in eastern Pennsylvania, including four school districts, several parents, and the NAACP, filed a lawsuit alleging that the state's funding system is unconstitutional. They cite the state constitution's education clause, which states "“[t]he General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth." This clause, they say, establishes education as a fundamental right.
Although not plaintiffs--yet--superintendents in western Pennsylvania are stepping forward to challenge the system as well. Erie schools superintendent Jay Badams and Bill Nichols, superintendent of the Corry Area School District, recently testified at a hearing of the Basic Education Funding Commission, which is working to recommend a new formula for distributing basic education funding to districts. Badams says the current formula is irrational and unpredictable. Districts have no way of knowing from one year to the next how much money they will receive from the state. This makes planning and balancing school budgets extremely difficult.
To the extent this is true, Badams raises an important point I have not often seen in other states. In school finance litigation, the claim is generally that funds are insufficient or unequal. Recent shortfalls in Philadelphia suggest this is the case in Pennsylvania as well and that courts could step in on this basis alone. See here and here. But Badams offers an equally justifiable basis for intervention or reform. Without recounting the precedent from states like Kentucky and West Viriginia on what it means to offer a "thorough and efficient" education, it suffices to say that a funding system that is unpredictable is antithetical to a system of thorough and efficient schools, even if it might otherwise produce sufficient funds.
Tuesday, February 10, 2015
Judge Will Appoint Independent Monitor in Class Action Settlement of IDEA Claims Against Louisiana Education Board
Yesterday, U.S. District Court Judge Jay Zainey (Eastern District of Louisiana) officially approved of a settlement of the disability class action suit in P.B., et al., v. John White (the Louisiana superintendent of education). The judge's ruling, which approves of the parties' December agreement, resolved a complaint brought by parents that charters in New Orleans' Recovery School District discriminated against disabled children, violating the Individuals with Disabilities Education Act (IDEA), Section 504, and Title II. Judge Zainey assured worried parents at yesterday's hearing that he would appoint an independent monitor to ensure that the Louisiana Board of Education met the needs of students with disabilities as outlined in the settlement. The original complaint alleged that the state and the Orleans Parish School Board failed to oversee the delivery of special education services of New Orleans' schools, and because of that lack of oversight, students with disabilities were asked not to leave school or discouraged from enrolling. The settlement requires the state and the school board to develop a plan to identify and evaluate children suspected of having a disability and to describe plans for offering services to students with disabilities. The Notice of Settlement is here.
In its bid to win a Race-to-the-Top grant from the U.S. Department of Education, Tennessee was one of the first states to substantially alter the way it evaluates teachers. Under the state's new system, fifty percent of teachers' evaluation were to be based on student scores on standard exams. The state later reduced it to forty percent. The lawsuit alleges several serious flaws in the the system. First, the system does not control for student demographic factors, such a socio-economic status. Thus, teachers' evaluations will be substantially affected by who they teach, not how well they teach. Second, several estimates and projections about student performance are included in the system, which reduces the confidence intervals or reliability of the scores. Third and most fatal is the fact that the system applies to teachers who teach courses for which the state does not even administer a standardized test. These teachers' evaluations are based on composite school wide performance. In other words, they are assessed, in large part, on how students do in other classes.
Plaintiffs allege that these flaws render the system arbitrary and unconstitutional under due process standards. The complaint is here.
Monday, February 9, 2015
Fortuitously, just hours after drafting a post on Senator Alexander's comments positing that some charters are private, Preston Green, Bruce Baker, and Joseph Oluwole's new article, The Legal Status of Charters Schools in State Statutory Law, Univ. Mass. L. Rev. (forthcoming), came to my attention. Their abstract offers the following summary:
Since 1991, forty-two states and the District of Columbia have enacted legislation for charter schools. While charter schools are generally characterized as “public schools,” courts have had a difficult time determining their legal status because charter schools contain both public and private characteristics. This article examines how courts have treated the hybrid nature of charter schools in a variety of state statutory contexts. The first part examines whether charter schools, charter school officials, and the educational management organizations (EMOs) that provide services to charter schools are entitled to governmental immunity. The second part examines how courts have applied public accountability laws to charter schools, charter school officials, and EMOs. The third part examines whether charter schools are public entities subject to prevailing wage statutes. The fourth part analyzes whether charter schools are public schools that must follow student expulsion requirements. The fifth part provides a tally of these cases in terms of whether: (1) charter schools and EMOs are subject to the same rules as public schools; and (2) charter school officials are governmental agents subject to the same rules as other public officials. The final part identifies cases that raise concerns that legislatures should address through statutory amendments.
Download it here.
Like or dislike him, Lamar Alexander is one of the more informed politicians in Washington, D.C. on questions of education. He has served as the U.S. Secretary of Education and as president of the University of Tennessee. Thus, it is hard to write his education comments off as ignorant. Speaking at a school choice event at the Brookings Institute last week, he said “There are some private charter schools, are there not?” The Washington Post reported on some other awkward exchanges occurred along the way.
“Charter schools are subject to the same tests as regular public schools,” Grover J. “Russ” Whitehurst, director of the Brown Center on Education Policy, said. “Public charter schools,” Alexander interrupted. “Well they’re all — charter schools are public schools,” Whitehurst said. “Charter schools, I guess as we define it, are public schools that operate under charters from the state rather than private, so they’re subject to the same tests.”
After the event, Senator Alexander indicated that he had misspoken and that all charter schools are public. His initial comments, nonetheless, suggest a perception that some charter schools, particularly privately run for-profit ones, do not operate like public schools. Of course, such a perception is problematic for the party line of both Democrats and Republicans, but consistent with the framework I suggested here. Broader politics will almost certainly dictate that Alexander keep his perceptions to himself as he works through the rewrite of the Elementary and Secondary Education Act, but it would be nice if he were brave enough to do otherwise.
Friday, February 6, 2015
Amherst College, Smith College, and Emory Law School's Vulnerability and the Human Condition Project are co-sponsoring a workshop on privatization and public education at Amherst on April 25-26, 2015. The workshop's organizers, Kristin Bumiller (Amherst), Martha Albertson Fineman (Emory), and Alice Hearst (Smith), have extended the deadline for the call for papers. See the call for papers announcement here. The workshop description is below:
This workshop explores public education through the lens of vulnerability theory. Public education is a foundational means whereby the state fulfills its responsibility to structure institutions responsive to human vulnerability and need for resilience. Yet the state seems to be withdrawing or lessening its commitment to public education, and there has been a steady growth in privatization over the past half century. Increased funding for charter schools and voucher programs, and the increased number of students in private education and homeschool settings have diverted and decreased the availability of funds for general public education.
Indiana Supreme Court Finds that State Civil Rights Commission Lacked Authority to Act in Discrimination Claim Against Homeschooling Association
In a dispute the Indiana Supreme Court characterized as "an intra-group squabble over the type of meal to be served to a member family's child" at a dinner-dance social, the court found that the Indiana Civil Rights Commission lacked statutory authority to act because the complained-of behavior was not "an incident not related to education." The Fishers Adolescent Catholic Enrichment Society, Inc. (FACES) is a group of families who associated together “to provide homeschool high schoolers with Catholic educational, spiritual, and social enrichment.” The claimant, Elizabeth Bridgewater, charged that FACES discriminated against her daughter in 2008 by resisting the family's efforts at a FACES function to arrange a special meal that would not activate the child's allergies. Bridgewater filed a complaint with the Indiana Civil Rights Commission, alleging that FACES refused her daughter a reasonable accommodation and therefore discriminated against her due to her disability. While the complaint was pending, Bridgewater ordered a special dinner for her daughter for the event by contacting the host facility directly. The daughter attended the dinner without incident, however, she was expelled from FACES four days later. Bridgewater then filed a second complaint with the Commission. An administrative law judge found for the Bridgewaters and awarded $5,000 in damages, a finding that the Commission later adopted. On appeal, the Indiana Supreme Court found that the state's civil rights statute conditions the Commission's authority "to incidents where a person has “engaged in an unlawful discriminatory practice" and that FACES' activities were social rather than educational in nature. The court also rejected the Bridgewaters' retaliatory discrimination claims, again finding that any unlawful discriminatory practice that the Commission addresses must be related to education (under this case's facts.) The case prompted a dissent by three members of the court, who wrote that the retaliation claim was not "derivative of and thus depend[ent] upon the disposition of the discrimination claim." There was an arguable connection to education in the case, the dissent noted, as FACES conducted classes and helped the students' participation in educational activities outside of the home. Further, the dissent pointed out, the court's decision conflicted with how discrimination is defined federally, which "includes retaliation as a separate act of discrimination regardless of the outcome on the merits of the underlying complaint." The case is Fishers Adolescent Catholic Enrichment Soc'y, Inc. v. Bridgewater ex rel. Bridgewater, No. 93S02-1310-EX-704, 2015 WL 70285, at *4 (Ind. Jan. 6, 2015).