Friday, July 31, 2015
Last week, the American Legislative Exchange Council (ALEC) held its fifth annual conference in San Diego. At the conference ALEC announced that they would no longer promote private school vouchers as helping poor, minority, or disadvantaged children, but would now be pushing vouchers for middle-class suburbia. The voucher system had previously been endorsed as a means to boost racial diversity and was restricted to low income families. However, like ALEC, numerous states have transitioned to promoting the privatization of public education.
Thursday, July 30, 2015
Justice Dept. Scolds Georgia For Segregating Students With Disabilities, Some Placed in Dilapidated Former Jim Crow School Buildings
The Justice Department has warned Georgia in a July 15th letter that the state's practices of segregating students with behavior-related disabilities violates the Americans with Disabilities Act. The DOJ's letter comes after an investigation of the Georgia Network for Educational and Therapeutic Support (the GNETS Program), a state network of 24 centers that serves about 5,000 students with behavior-related disabilities. The DOJ noted that some of the schools that the GNET program uses are repurposed "poor-quality buildings" that formerly served as segregated schools during the Jim Crow era. The DOJ also criticized the GNETS program's severe restrictions on "interactions between students with disabilities and their peers in general education, depriving them of the opportunity to benefit from the stimulation and range of interactions that occur there, including opportunities to learn, observe, and be influenced by their non-disabled peers." Even when GNETS classrooms are located in general education school buildings, the DOJ investigation found that GNET students' classrooms "are often located in separate wings or isolated parts of school buildings, some of which are locked and/or fenced off from spaces used for general education programs." The level of education also needed reform, the DOJ's letter noted, as some of the instruction was online-only and students often had no access to electives or extracurricular activities. The DOJ's letter to the GNET program can be found here. Read more about the investigation at the Atlanta Journal Constitution here.
On July 1, a new Kentucky law went into effect that raised the school dropout age from 16 to 18. While the purpose of the law is to increase the percentage of students who graduate from high school, the law is set to have several negative unintended consequences, according to locate advocates and legislators. State Senator Tom Buford pointed out that the law would require current dropouts to return to high school even if they are currently close to earning a GED. They would not be able to take the GED exam until after they turn 18.
Wednesday, July 29, 2015
Inside Higher Ed reports that ED Secretary Arne Duncan is expected to announce an experimental sites program this week for prisoners to receive Pell Grants to take college courses. The Prisoner Reentry (Moving Forward) program will grant a limited waiver to a provision in the 1994 Omnibus Crime Bill, in which Congress prohibited prisoners in state and federal prisons from receiving Pell Grants. The administration's program will allow prisoners at 6-7 sites who are within three years of release to participate in a credit-bearing program "that leads to an industry-recognized credential with labor market value," according to the administration's program summary. Secretary Duncan and Attorney General Loretta Lynch are expected to make the announcement at Goucher College's prison education program at the Maryland Correctional Institution on Friday.
Tuesday, July 28, 2015
A settlement has been reached in Barnes v. Zaccari, the long-running case in which a Valdosta State University (Ga.) student was expelled in 2007 after he protested the VSU president's plans to build a new parking deck. After a letter-writing campaign opposing the environmental impact of VSU's parking deck plans, student Thomas Barnes posted a collage on his Facebook page titled “S.A.V.E.—Zaccari Memorial Parking Garage” that included a portrait of then-VSU President Ronald Zaccari. (A copy of the collage can be found here.) Zaccari interpreted the word "memorial" to apply to deceased persons, therefore signaling that Barnes contemplated harm to him. He ordered that Barnes be "administratively withdrawn" from VSU because Barnes presented a “clear and present danger” to the campus. Barnes sued Zaccari in federal court, claiming violations of his due process and free speech rights. The district court denied Zaccari's summary judgment motion based on qualified immunity. A federal district court denied Barnes' First Amendment retaliation claim, finding that because it was pled as a conspiracy claim and VSU's administrators opposed Zaccari's actions, there was no agreement to form a conspiracy. In 2013, a federal jury found the collage was innocuous expression, finding Zaccari personally liable for $50,000 for violating Barnes's rights. In January 2015, the Eleventh Circuit held that the district court erred in granting summary judgment in Zaccari's favor on the First Amendment retaliation claim. Barnes v. Zaccari, 592 Fed.Appx. 859 (11th Cir. 2015). VSU apparently has decided that it is done fighting the case. Read more about the settlement at the Foundation for Individual Rights in Education here.
D.C. Circuit Holds That District Must Pay For Residential School Placement After Failing To Provide An Alternative
Leggett v. Dist. of Columbia, No. 14-7021 (D.C. Cir. July 10, 2015) - Short take: when a school district drags its feet in providing a free appropriate education required under the Individuals with Disabilities Education Act, the district may be on the hook for a more costly one. In Leggett, the D.C. Circuit held that the D.C. Public Schools (DCPS) was required to reimburse the costs of a private boarding school placement after DCPS failed to provide an individualized education program by the start of the school year. The IDEA requires school districts to reimburse parents for their private-school expenses if "(1) school officials failed to offer the child a free appropriate public education; (2) the private-school placement chosen by the parents was otherwise “proper under the Act”; and (3) the equities weigh in favor of reimbursement—that is, the parents did not otherwise act “unreasonabl[y].”" In Leggett, the parent requested an IEP under the Individuals with Disabilities Education Act after her child did not complete the eleventh grade. DCPS failed to develop an IEP in time for the school year. After being told that her child would benefit from residential placement, Leggett chose a private boarding school where her child thrived. She sought reimbursement from DCPS for the cost of the residential program. DCPS countered that the residential school placement—with activities such as an equestrian program—was unnecessary because the student could have succeeded in a non-residential program. Both the due process hearing officer and the D.C. District Court found that DCPS violated the IDEA by failing to have an IEP in place by the beginning of the school year, but denied reimbursement because, in their view, the student did not require a residential program. The D.C. Circuit reversed the denial of reimbursement, holding that under Bd. of Ed. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982), the student’s placement was proper because DCPS had offered no IEP, “identified no suitable alternative, and failed even to challenge Leggett’s claim that [the residential school] was the only available placement.” The circuit court held that on remand, DCPS could challenge the costs of extracurricular activities that were unnecessary for the student’s education. Read the opinion here.
Friday, July 24, 2015
A new Century Foundation report examines what worked and did not work in those schools that received federal School Improvement Grants (SIGs) starting in 2009. Through funds allocated in the economic stimulus package, the Department of Education has been able to direct about $3.5 billion toward the nation's lowest performing schools. The grant awards for individual schools amounted to as much as $2 million a year for three years. The study finds:
Thursday, July 23, 2015
Edbuild has released an interactive map that includes every school district in the country. You can zoom in and out and hover over individual school districts. Without leaving the page, it will tell you size of the student population and the percent of poor students attending the school district. I spent some time with it this morning and could not stop looking around at different locations. It is an exceptional teaching and researching tool for school segregation.
In past years, I have used the clunky method of downloading census track maps, going to school district websites, transposing the district data onto the map, and then moving the map around on an overhead projector. It works, but there is a limit to how much information you can throw at students in this format and a limit to how long students can tolerate me physically manipulating the map and trying to explain some point at the same time. This interact map by Edbuild does almost all the work for you ahead of time and it is also well color-coded.
Tuesday, July 21, 2015
Second Circuit Holds That School District Must Provide Full Value of Compensatory Services Under IDEA, Not Just Lesser Value of What Parents Could Afford
In Doe v. E. Lyme Bd. of Educ., No. 14-1261-CV, 2015 WL 3916265 (2d Cir. June 26, 2015), a Connecticut school board and a student’s parents disagreed over the proper placement and special education services. The parents placed their child in private school while pursuing remedies under the Individuals with Disabilities Education Act. During the administrative proceedings and subsequent litigation, the school board refused to pay for the student’s special education services, which were not available at her private school. The Second Circuit affirmed the district court’s finding that the school board’s action denied the student a free and appropriate education and affirmed the district court's grant of summary judgment awarding no relief as to the FAPE claim because private school was an inappropriate placement because it did not offer special education services. The Second Circuit held that the Individuals with Disabilities Education Act’s requirement for a school district to maintain a stay-put placement is triggered when an administrative due process proceeding is initiated, not when an impasse is reached, The circuit court also held that when a school district commits a stay-put violation, it must reimburse or provide compensatory education for the full value of services that the district was required to fund, not the (lesser) value of services that the student’s parent was able to afford.
Alabama State Auditor’s Suit Dismissed Against School Board That Spent Public Funds Rallying for Property Tax Referendum
An Alabama judge has reportedly dismissed a lawsuit brought by the state auditor who challenged the Baldwin Co., Ala. school board’s spending public funds on a campaign to rally for increased property taxes to fund school construction. State Auditor Jim Zeigler sued in May seeking a ruling on whether school boards could use taxpayer money to fund political activities. Zeigler also sought $250,000 in restitution for the funds that the Baldwin County School System spent on a failed referendum for the property tax increase. According to al.com, state circuit court judge Greg Griffin said that "if political activity included all issue advocacy" then public officials couldn't push in favor of things such as crime bills, changes to state voting laws or tax increases or decreases. The news report is here.
Advocacy Group Reaches Settlement With Georgia District Over School Prayer
A settlement has reportedly been reached settling the lawsuit brought against the to stop coaches from leading Christian prayers before sports and other school-sponsored activities. The American Humanist Association sued in the Northern District of Georgia alleging that the Hall County (Georgia) school district allowed its faculty and coaches to pray with students and insert Biblical passages in sports promotional materials. In last week’s settlement with the school district, Hall County Schools will reinforce “the standards for religious neutrality” required under the First Amendment and hold a constitutional rights training session for administrators. Read more here.
The Stanford Law & Policy Review is currently accepting submissions for their upcoming symposium titled “Education Policy: Equality and Progress.” The Stanford Law & Policy Review is a widely-cited academic journal at Stanford Law School that explores current issues at the nexus of law and public policy.
In our Spring 2016 volume, we will explore the future of education law for policymakers, judges, lawyers, academics, and the general public. Articles will likely address current challenges and opportunities to improve education in the United States. Articles may explore access to education, the student-loan bubble, and the cost of higher education. They may also discuss the tools policymakers are using at present to address these issues, such as data-driven performance evaluations for schools, charter schools, school vouchers, or renegotiating the relationships between states and teachers’ unions. Other articles may raise larger questions about the role of the federal government and/or states in education. These are simply a few of the questions that inspire this symposium, and we welcome a variety of submissions that engage in this timely and momentous debate.
Articles should be between 5,000 and 20,000 words, not including notes and citations. The deadline for submitting an article proposal for pre-approval is July 31, 2015; it is only necessary to submit an article for pre-approval if you expect the article to be completed after October 2, 2015. Completed articles may be submitted until September 3, 2015.
To submit an article for consideration, please email your manuscript along with any cover letter, abstract, or author CV to Lead Symposium Editor Jason Despain at firstname.lastname@example.org.
For more information about Stanford Law & Policy Review, please see slpr.stanford.edu.
Monday, July 20, 2015
In The Constitutional Challenge to Tenure, I spend an extended amount of time evaluating the merits of teacher evaluation systems that rely on students' standardized test scores work. This might appear to some as a digression, but the the attacks on tenure are premised on the assumption that these new evaluation systems can tell us who needs to be fired. If only it were so. Thus far, these evaluation systems have proven speculative and unreliable. Yet elevating the prominence of teacher evaluation systems would appear to be a primary goal of the movement.
Last week, the advocates and attorneys who brought us Vergara v. California made this more obvious. They filed a second lawsuit to force sixteen California school districts to do more to evaluate their teachers based on students' test scores. They argue that collective bargaining agreements in those districts are prohibiting the districts from evaluating teachers in accordance with state statute. The complaint is here.
Court Holds Arizona's Ban on Ethnic Studies Violates First Amendment and Remands for Further Findings on Discrimination
The Ninth Circuit has issued its decision in Arce v. Huppenthal. The case arises out of the 2010 ban on Mexican American Studies programs in Arizona. The legislature passed A.R.S. § 15-112(A), which prohibits school districts and charter schools from having educational programs that: (1) “Promote the overthrow of the United States government,” (2) “Promote resentment toward a race or class of people,” (3) “Are designed primarily for pupils of a particular ethnic group,” or (4) “Advocate ethnic solidarity instead of the treatment of pupils as individuals.”
The Ninth Circuit held that § 15-112(A)(3) violates the First Amendment due to overbreadth, but held that §§ 15-112(A)(2) and (A)(4) were constitutional. The trickier analysis in regard to plaintiffs' motivations. Plaintiffs' alleged that the legislation was racially or ethinically motivated and motivated by viewpoint discrimination. The former would violate the Fourteenth Amendment and the latter the First Amendment. The district court had granted the defendant's motion for summary judgment on the the equal protection and view point discrimination claims. The Ninth Circuit reversed and remanded, finding there were "genuine issues of fact regarding whether the enactment and/or enforcement of § 15-112 was motivated at least in part by a discriminatory intent." The court noted it is undisputed that “the statute was enacted almost entirely” to shut down the Mexican American Studies program in Tuscon.
Friday, July 17, 2015
Senate Passes Bill to Reauthorize the Elementary and Secondary Education Act and Roll Back the Policies of No Child Left Behind
Yesterday afternoon, by a vote of 81-17, the Senate passed a bill to reauthorize the Elementary and Secondary Education Act. The bill would substantially change the state-federal relationship in education, shifting much more control back to the states. As discussed in recent days, the Senate bill substantially differs from the House bill. The White House has decried the House bill, but both the White House and Secretary Duncan have indicated that the Senate bill, while not great, is within the realm of reason. Thus, if Congress wants to reauthorize ESEA--and it seems pretty clear it does--one would expect that negotiations between the White House, the House, and the Senate will lead toward final legislation built on the framework in the current Senate Bill.
That current framework revolves around:
- eliminating the current accountability system of No Child Left Behind
- Allowing states to create their own accountability systems rather than the one size fits all approach of "adequate yearly progress"
- continuing to test students ever year in math and reading in grades 3 through 8 and once in high school, along with some intermittent testing in science
- permitting states to develop alternative assessments
- continuing to disaggregate test results by student groups
- eliminating the punitive interventions from NCLB and allowing states to decide when and how to intervene
- prohibiting the Department of Education from imposing any academic standards or curriculum
- eliminating conditions from the current NCLB waivers, such as implementing teacher evaluation systems
- permitting states to use federal funds for pre-k education
- reworking the Title I funding formula
The following measures did not make it into the bill:
- protections for LGBTQ Youth
- vouchers and other types of funding portability
- strict accountability for low achievement
- funding targeted at pre-k education
Thursday, July 16, 2015
Sorry for the multiple posts, but ESEA reauthorization is moving in its furious last moments in the Senate with big news. I have commented over the past few days about the enormous political hurdles to changing Title I's funding formulas and the necessity to do so. Apparently, Senator Burr worked some magic an hour or so ago because his amendment to alter the formulas for the first time in decades passed. For those who do not know, Title I funds are the major source of federal funds in public schools and they are the teeth that force or carrots that encourage states to comply with all of the educational policies in the Elementary and Secondary Education Act.
I had assumed the likelihood of a formula change was so small that I had not dug into the details of the new formula. The full reauthorization bill must still pass the Senate, which will vote later today. If it passes, I will dig into the details tomorrow, although it is still highly possible that the formula change will not make it through a reconciliation process with the House.
There is, however, one huge caveat. The only way he got the amendment through was to indirectly delay the implementation of the change. It would only apply to Title I funds in excess of $17 billion. We currently set at $14 billion. So its effect would not be felt for years. But it is a clever solution to the underlying problem of the warring winners and losers.
More on why the funding formulas need reform here.
More on the current vote here.
Civil Rights Groups have issued an 11th hour letter opposing the Senate bill to reauthorize the Elementary and Secondary Education Act. Edweek reports that votes of amendments have ended and the final bill will go to a vote today.
Here is the text of the civil rights letter:
Yesterday, the Senate rejected an amendment to the Elementary and Secondary Education Act that would have specifically prohibited discrimination against lesbian, gay, bisexual, transgender, and queer (LGBTQ) students in school. Surely, the Supreme Court's recent decision upholding the right of same sex couples to marry was lurking in the minds of many. A vote against this amendment could be seen as ideologically in line with the opposition to same sex marriage. That, however, was not the major rationale for voting against the measure. Some senators argued that the amendment was unnecessary because Title IX of the Education Amendments of 1972 already protected LGBTQ youth.
This rationale should ring hollow to those who have followed Title IX precedent and politics over the past two decades. Conservatives are correct that Title IX affords protection. What they fail to mention, however, is that this has not always been the case and the protection is not necessarily all encompassing. The theory under which Title IX protections LGBTQ youth is that some discrimination against students arises because they are not conforming to stereotypes about how a boy or a girl should act, dress, etc. In other words, a young boy dressed or acted "effeminately" would not have been mistreated had he been a girl and dressed or acted the same way. Thus, the treatment is gender discrimination which Title IX prohibits.
The trouble with conservatives' rejection of the ESEA amendment to protect LGBTQ is threefold. First, that the Obama administration is the first to explicitly adopt the foregoing Title IX rationale. A subsequent administration could interpret Title IX differently or simply enforce it less vigorously. Second, conservatives have criticized the use of Title IX to protect LGBTQ youth. It is a bit disingenuous for a conservative to criticize progressive use of Title IX to protect LGBTQ youth and then turn around and argue ESEA need not be amended because the administration has already taken care of the LGBTQ issue through a purported misuse of power. Third, the foregoing Title IX theory is not all encompassing. Some courts have not adopted it. In addition, the theory only directly covers stereotyping. Some LGBTQ youth are discriminated solely based on who they are, not based on a failure to conform to a stereotype. Thus, there are some circumstances under which they may not be protected. An explicitly anti-discrimination measure to protect them would cure this problem.
The Senate's vote just eliminated that solution from the ESEA.
Wednesday, July 15, 2015
The U.S. District Court for the District of Columbia again found last week that the D.C. school district failed to comply with their “Child Find” duty to locate disabled students in the birth-to-five population, as required by the Individuals with Disabilities Education Act. The court found in 2010 that the D.C. district neglected its duties for years to identify, evaluate, determine eligibility, and ensure a smooth transition for services for preschool disabled children covered by the IDEA and the Rehabilitation Act. Following Wal-Mart v. Dukes in 2011, the D.C. Circuit Court vacated the original plaintiff class certification of disabled children and remanded for the district court to determine whether the plaintiffs' claims had sufficient commonality to represent a class. On remand, the district court certified four subclasses. In last week's decision, the district court found no genuine dispute that the "District's attempts to identify, evaluate, determine eligibility of, and transition disabled children were inadequate through and including 2007, [which is] sufficient to establish the District's liability under the IDEA on each subclass's claim." The District had been cited by the Office for Special Education Programs (OSEP) in 2001 for failing to conduct timely evaluations under its program compliance agreement. The case is DL v. D.C., No. CV 05-1437, 2015 WL 3630688 (D.D.C. June 10, 2015).
Chicago Public Schools Enter Agreement with Office for Civil Rights to Ensure Equal Athletic Opportunities for Females
Last week the U.S. Department of Education announced that a settlement had been reached between its Office for Civil Rights and the Chicago Public School District #299 after the National Women’s Law Center filed their initial complaint back in 2010. The agreement mandates that the Chicago school system add athletic opportunities for females in at least 12 high schools in order to comply with Title IX (the anti gender discrimination law in education). The purpose of the agreement is to remedy the stark disparities between enrollment of female students and their participation in high school interscholastic athletics. In Chicago schools, females make up over 51 percent of the student population yet they only represent 41 percent of the districts’ athletes. Males are 58 percent of the athletes. The eleven page detailed settlement requires that the Chicago Public School District comply with the agreement at each District high school and sets up a standard the schools must meet.
Compliance at each high school will be measured by using the three-part test of compliance showing at each school that: 1) interscholastic participation opportunities are provided in numbers substantially proportionate to the respective enrollments of boys and girls; or 2) that the District can show a history and continuing practice of program expansion that is demonstrably responsive to the developing interests and abilities of the members of that sex; or 3) that the interests and abilities of the underrepresented sex are fully and effectively accommodated by the present program.
The agreement will go into effect as early as fall 2015 and the Office for Civil Rights will continue to monitor the District’s compliance closely thereafter.
A little over a month ago, Sen. Tim Scott (R-S.C.), a member of the education subcommittee, had foregone his voucher amendment at the committee level so that the bill could move to the full Senate with a unanimous vote. He revived that amendment before the full Senate. The measure would have allowed low income students to opt out of public school and use $2100 in Title I dollars to pay for tuition at a private school. The amendment was defeated on a 45-to-51 vote yesterday. Democrats were unified in their opposition and a few Republicans joined them, including Senators from Missouri, Kansas, and Alaska. Senate rules required 60 votes for the amendment to pass.
Still up this week are amendments to the funding formula (discussed here yesterday) and an anti-discrimination measure to protect against harassment based on sexual orientation.