Wednesday, September 30, 2015
California Settles English Language Learner Case, Promising to Implement Better Standards and Oversight
California has reached a settlement in DJ v. State of California. Plaintiffs charged that the state Department of Education was failing to carry out its obligations to English Language Learners (ELLs) and the trial court agreed. Under federal law, the Equal Educational Opportunities Act requires states and schools to take affirmative action to help ELLs overcome language barriers and make appropriate educational progress. California's state constitution also establishes education as a fundamental right and requires the state "to intervene when the educational opportunity provided to some students falls below "prevailing statewide standards. . . The failure to provide appropriate services to EL students denies them equal educational opportunity." DJ v. State of California, BS 142775 (Sept. 14, 2015).
Applying those standards, last fall, the trial court found that the Department had failed "to take appropriate action in response to reports from districts that EL students have not received instructional services. Petitioners are also entitled to an injunction requiring Respondents to establish procedures that effectively ensure all EL students receive required EL instructional services."
The state has now agreed to put specific remedies in place to address these failures. The state promised to collect and monitor more accurate data on ELLs, make that data publicly available, establish standards that increase the likelihood of triggering onsite evaluations of ELL programs, seek additional funding for new staff to oversee the program, and conduct a compliance review in Compton Unified School District.
Tuesday, September 29, 2015
OCR Finds Princeton Does Not Discriminate Against Asian Americans and Offers a Preview of Race Neutral Analysis for Fisher II
The Office for Civil Rights at the Department of Education (OCR) completed its compliance review of Princeton's admission practice last week. Princeton, like Harvard and the University of North Carolina, has been accused of discriminating against Asian Americans in admissions. OCR applied strict scrutiny to the University's admissions practices and policies and concluded that "there was insufficient evidence to substantiate that the University violated Title VI or its implementing regulation with regard to the issue investigated."
Princeton easily met the compelling interest analysis by demonstrating its interest in achieving the educational benefits of diversity. As to narrow tailoring, OCR asked
whether the University considered workable race-neutral alternatives; whether the admissions
program provided for flexible and individualized review of applicants; whether it unduly
burdened students of any racial group; and whether the consideration of race was limited in time and subject to periodic review.
On the question of flexible individualized review, it rejected the notion that quotas were at play, finding there was
no evidence that the University tried to cap or otherwise limit the number of applicants who would be admitted from any race or national origin group. OCR also did not find that the University engaged in “patently unconstitutional” racial balancing, which the Supreme Court has defined as an effort “to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.” Instead, to the contrary, OCR found mostly steady increases in the percentages of Asian students who have been admitted in the past several years, rising from 14.2% of the University’s Class of 2007 to 21.9% of the University’s Class of 2012 and 25.4% (more than one-fourth) of the University’s Class of 2014. Such fluctuations are inconsistent with the existence of a quota, as the Supreme Court noted in Grutter.
It also found that race played a relatively small and flexible role in the process:
Here, OCR found that during the University’s admissions process, an applicant’s race and national origin – if he or she offered that information — may or may not be considered, depending upon whether that information provides further context about an individual applicant. For example, an admissions officer might consider how race may have figured in the context of where a person was born, where a person grew up, and where he or she had gone to school. Race and national origin may also be considered if an applicant brings up those subjects in his or her essay. However, OCR found no evidence of the University giving an automatic “plus” for identifying as a particular race or national origin; nor did OCR find evidence of applicants given an automatic “minus” for belonging to a particular race or national origin. OCR also found no evidence of the University using a fixed formula to weigh an applicant’s race or national origin.
Post-Fisher v. Texas, the potentially more difficult analysis for universities is the race neutral alternative analysis. If interpreted strictly, Fisher's statement that a university should demonstrate that its consideration of race is "necessary" could be fatal to many admissions plans. If interpreted consistent with Grutter, the term means something more flexible than absolute necessity.
OCR's letter did a nice job of averting the significance of this definition problem, which scholars have been wrangling over. OCR did so by referencing the Court's "necessary" quote in a footnote, but refusing to allow the meaning of the phrase to become the analysis itself. Instead, it rephrased the question as being one of "sufficiency." It asked "whether race-neutral alternatives were sufficient to achieve its diversity goals, of which race was a single though important element." It then alternatively phrased the question as whether race neutral alternatives were "not sufficient to achieve the educational benefits of diversity." Sufficiency captures the notion of flexibility far more clearly than necessity would, and that flexibility, of course, was clearly forwarded in Grutter. Drawing on Grutter's approach to race neutral alternatives, OCR concluded that "there were no race-neutral alternatives that would have worked about as well."
In reaching that conclusion, OCR interestingly focused on the race neutral alternatives that the University currently uses. Often, the focus elsewhere is on those hypothetical processes the university could or should use instead of race. Here, OCR makes a compelling argument that the University is already using these alternatives and race is just a tipping factor on top of those alternatives in certain circumstances, although without those tipping it would not achieve its goal. In other words, the fact that the University is using race-neutral alternatives substantiates the fact that it has considered alternatives and exhausted their efficacy. One would expect these ideas to show up in the government's briefs in Fisher II, where the analysis of the facially race neutral top ten percent plan will be key.
Get OCR's full letter here.
School Speech Shorts: School District Employees Entitled to Qualified Immunity in Facebook Search Suit; Univ. of Kansas Cannot Expel Student for Off-Campus Tweets
The Fifth Circuit recently reversed a district court's decision denying qualified immunity to officials of a Mississippi school district on a First Amendment claim. The case arose when a teacher in the Pearl Public Schools, who served as the school's cheer squad sponsor, coercively requested a student's Facebook log-in information, accessed her Facebook messages, and later punished the student by removing her from the cheer squad because of the messages' content. After the student was dismissed from the squad, her parents filed a § 1983 action alleging that school officials violated their daughter's First and Fourth Amendment rights by searching her messages. The Fifth Circuit held that the school officials were entitled to qualified immunity because the law was not “clearly established” when the incident occurred (September 2007) that searching a student's Internet messages would violate either the First or Fourth Amendments if the teacher was acting on a reasonable suspicion that that the student had posted threatening messages immediately after a school event. The finding of qualified immunity was compelled, the Fifth Circuit explained, by conflicting rulings in school search cases until the Supreme Court handed down Safford Unified Sch. Dist. No. 1 v. Redding in 2009. The circuit court likewise held that school officials had qualified immunity on the First Amendment claim, because they did not have "fair warning," given the available precedent, that removing the student from the cheer squad because the content of her Facebook messages would violate the First Amendment. Read the opinion in Jackson v. Ladner, No. 13-60631 (5th Cir. Sept. 15, 2015) here.
A Kansas appellate court held last week that University of Kansas had no authority to expel a student for posting sexually harassing tweets about another student even though the university had ordered him not to contact the other student. The harassing communications were done off-campus, and construing the University's student code, the court concluded that the "only environment the University can control is on campus or at University sponsored or supervised events." The case is Yeasin v. Univ. of Kansas, No. 113,098 (Kan. App. Sept. 25, 2015).
Monday, September 28, 2015
Court Limits Special Education Complaint Filing to Two Years from Date Parents Knew or Should Have Known of a Violation, But Leaves Measure of Compensatory Education Open by Mark Weber
Last week, the Third Circuit handed down a major special education law decision, G.L. v. Ligonier Valley School District Authority, No. 14-1387, 2015 WL 5559976 (3d Cir. Sept. 22, 2015). In brief, it holds that two oddly worded provisions in the Individuals with Disabilities Education Act establish a two year limitations period from the date the parent knew or should have known of an IDEA violation for the filing of a due process complaint, but the provisions do not limit the period that may be considered in fashioning a compensatory remedy for claims that are timely filed.
For those teaching education related seminars this fall, this may be a great opportunity for your current or past students to get their seminar papers published and/or win a cash prize. The announcement is as follows:
Thomas Jefferson School of law is pleased to announce the second Jameson Crane III Disability and the Law Writing Competition. Made possible by the generous gift of Thomas Jefferson School of Law alumnus Jameson Crane III, the Crane Writing Competition seeks to encourage outstanding student scholarship at the intersection of law and medicine, or law and the social sciences. The competition promotes an understanding of these topics, furthers the development of legal rights and protections, and improves the lives of those with disabilities.
Friday, September 25, 2015
California School Board Association Sues State For Lowering Education Budget By $150 Million Through Legislative "Manipulations"
An alliance of school boards has sued California officials this week alleging that the state legislature "manipulated" what is included in the state's minimum education spending guarantee and thus violated the California Constitution's Article XVI, sec. 8, called Proposition 98. In the complaint filed September 22 by the California School Boards Association (CSBA) and Education Legal Alliance, the plaintiffs explain that Proposition 98 requires a minimum percentage of the state budget to be spent on K-12 public schools and community college districts. In 2011, the legislature moved childcare spending out of the education budget and adjusted or "rebenched" the minimum education spending guarantee to reflect the missing amount. When some childcare costs were added back in the current 2015-16 budget, however, the legislature did not readjust or "rebench" the minimum educational spending requirement, thus decreasing the minimum guarantee of Proposition 98 by $150-$180 million, the plaintiffs allege. The CSBA says that it does not object to childcare expenditures being part of the education formula, but does object to the legislature's inconsistency in defining what is part of Proposition 98's minimum spending guarantee. Read the complaint in California School Boards Association v. Cohen here.
Thursday, September 24, 2015
Class Action Suit Pending Against Philadelphia District for Failing to Provide Language Translation During IEP Process
Philadelphia parents filed a class action lawsuit against the School District of Philadelphia last month, alleging that the district violated special education law requirements by failing to translate documents and to provide sufficient interpretation services during Individualized Education Program meetings. The class alleges that the Philadelphia school district denied parents and students with limited English proficiency (LEP) an opportunity to participate IEPs on the same basis as their English-speaking counterparts. In 2013, the district reportedly received requests from 19,670 families of students who had requested documents in a language other than English; the district interpreted about 487 special education documents of any type that year. The plaintiffs received a due process hearing in May 2015 at which the Hearing Officer found violations of the parents' meaningful participation in the IEP process due to translation issues, required the district to translate IEPs and other documents for the plaintiffs in the future, and awarded compensatory education. However, the Hearing Officer declined to order that the district change its translation policies system-wide, concluding that the requested relief was outside of his powers. The plaintiffs are represented by the Education Law Center. T.R., by and through Barbara Galarza, v. The School District of Philadelphia, 2015 WL 5011332 (E.D.Pa. filed Aug. 21, 2015).
Last week, the federal district court in Jindal v. U.S. Department of Education denied Jindal's motion for a preliminary injunction. Jindal had sought to enjoin the Department's Race to the Top Program and its No Child Left Behind waivers. Jindal argued that the Department's support for the Common Core Curriculum through these programs violated the 1oth Amendment and a federal statute that prohibits the Department from dictating curriculum. The district court rejected both arguments.
Before going into my analysis, I must, in full disclosure, state that Jindal retained me as an expert in the case. It was just two months before the case went to trial and long after I had completed my article, Federalizing Education by Waiver?. In fact, I completed my article before Jindal filed his case, which I only learned about in the news. My testimony was little more than a recitation of my article. Regardless, I clearly have an opinion on this case. With that disclosure, I offer the following.
Wednesday, September 23, 2015
On Monday in Dwyer v. State, the Colorado Supreme Court held that its constitutional mandate that specifically requires annual increases in "statewide base per pupil funding" does not prohibit the state from reducing the total amount of funds per pupil it provides to school districts. That does not make sense, so let me explain.
Tuesday, September 22, 2015
Last fall, plaintiffs filed suit against Pennsylvania, arguing that education is a fundamental right under the state constitution and that the state has violated that right by repeatedly failing to ensure adequate education resources. That claim moved through the trial court quickly and is now before the Pennsylvania Supreme Court. Pennsylvania is one of the few states that has yet to fully entertain these issues, having dismissed school funding cases in the past as non-justiciable. Something tells me that this time might be different. As discussed several times on this blog over the past few years, the state has been so derelict in its obligations to its students that its action could be declared unconstitutional under any minimal and deferential standard one might imagine.
The Education Law Center released this summary of the case and its amicus brief:
Monday, September 21, 2015
The briefs are in the appeal of Vergara v. State. Amici in support of the state are exposing a huge evidentiary flaw in the plaintiffs' case: the lack of causation. For those who are new to the case, last year a California trial court held that teacher tenure was unconstitutional, concluding that tenure prevented schools from removing grossly ineffective teachers. The court reached a similar conclusion in regard to the state's "last-in-first-out" statute, which requires reassignment and retention be based on seniority during reductions in force.
The San Francisco Lawyers' Committee for Civil Rights and the Education Law Center wrote:
Plaintiffs . . . did not show, nor can they show, that the challenged statutes require the retention of clearly ineffective teachers or that those statutes resulted in assignment of teachers incapable of delivering curriculum and instruction to students in particular classrooms, schools, or districts. That is, plaintiffs did not show that the “Permanent Status Statutes,” and in particular, Education Code section 44929.21, subdivision (b), requires districts to reelect ineffective teachers at the expiration of their two-year probationary period. . . . Plaintiffs focused on the processes for dismissing teachers . . . . While plaintiffs critiqued these processes as a matter of public policy, they did not produce sufficient record evidence establishing that the statutes required districts to retain unqualified and ineffective teachers. . . .
At best, plaintiffs presented anecdotal evidence that in some instances, the challenged statutes could contribute to retention of ineffective teachers. However, the trial court’s analysis, given the record below, does not show or support a causal connection between these statutes as compared to the many other factors linked to teacher quality, and the deprivation of a constitutional education in specific California districts or schools.
Erwin Chemerinsky and Catherine Fisk's brief on behalf of constitutional law professors was even more specific:
Friday, September 18, 2015
In October of 2013, I published a series of posts on a high school student, Erin Cox, at North Andover High School in Massachusetts. The story told by her, her family, and primarily her attorney, Wendy Parker, was that the school had punished her under its zero tolerance policy on alcohol for being at a party where alcohol was served. The media story that unfolded over a couple of days was that she had not actually consumed any alcohol, that she had not actually been present at the party, that she had only come to the party to give a drunk friend a ride home, and that the police were already there when she arrived, but released her because it was clear she was not involved. Her attorney claimed she had a police report that even verified these last facts. The narrative was that the school was punishing for doing the right thing. She then brought suit in state court seeking to enjoin her punishment and her attorney said that the school's attorney lied about the undisputed facts at the initial hearing before the court.
Thursday, September 17, 2015
The Huffington Post reports on an ED notice extending its information-gathering efforts about possible borrower's defenses for student loan debt from non-traditional or unaccredited post-secondary schools. With the recent troubles of some for-profit schools, including the massive Corinthian College network, the Obama administration has been looking for avenues of debt relief for students of those institutions. In its September 17 notice, the ED seeks continued collection of information from borrowers who believe they have cause to invoke the borrower defenses against repayment of a student loan as noted in regulation 34 CFR 685.206(c)(i) which states in part that “[i]n any proceeding to collect on a Direct Loan, the borrower may assert as a defense against repayment, an act or omission of the school attended by the student that would give rise to a cause of action against the school under applicable State law.” The ED notes that "[p]rior to 2015, the borrower defense identified above was rarely asserted by any borrowers and no specific methods of collecting information was defined or found necessary," prompting, Huffington Post writer Steve Rhode writes, "clever attorneys to show how the schools violated state unfair and deceptive practice laws and that could possibly lead to an elimination of the student loans in full." Read the story at the Huffington Post here and the ED's notice here.
Wednesday, September 16, 2015
The Third Circuit recently upheld a summary judgment finding in a teacher’s retaliation claim after she was discharged after her derogatory comments about students gained national attention. The Third Circuit held that while the teacher’s speech may have touched on a matter of national concern, it caused sufficient disruption for the students and the school district to warrant the teacher’s discharge, and thus speech was not protected under Pickering v. Board of Education. The case arose when a teacher for a Pennsylvania school district, Natalie Munroe, began a blog entitled "Where are we going, and why are we in this hand basket?" In the blog, Munroe discussed personal matters but also complained about her students, her co-workers, and the school where she worked. She did not expressly identify either where she worked or lived, the name of the school where she taught, or the names of her students, but described students as the “devil’s spawn,” and “rat-like.” Students and the school district discovered the blog, and after complaints about Munroe’s professionalism, the school district assigned a “shadow teacher” to teach Munroe’s subject at the same times that Munroe did and allowed students to opt-out of Munroe’s class. Munroe meanwhile became a minor celebrity in the national media because of the views expressed on the blog. Eventually, the school district discharged Munroe, and she brought a retaliation claim under 42 U.S.C. § 1983, alleging that the district violated her First Amendment rights. She claimed that her termination based on her private blog and her media interviews. The Third Circuit found that Munroe’s national media interviews did not rise to the level of constitutionally protected expression, finding that “Munroe’s various expressions of hostility and disgust against her students would disrupt her duties as a high school teacher and the functioning of the School District.” The Third Circuit concluded that the district’s interest in eliminating Munroe’s disruptive speech and presence outweighed her “interest, as well as the interest of the public, in her speech.” Munroe v. Central Bucks School District, No. 14-3509 (3d Cir. Sept. 2015) is here.
Free speech and academic freedom have long exposed cultural and political tensions on college campuses. But in the past few years, those who would restrict free speech have seemingly gotten a foothold in the debate that they otherwise would have been laughed out of. In other words, they have managed to start a debate over long settled principles. They have been able to convince some universities and professors to include warnings or triggers on their syllabi. These triggers would warn students in advance about topics, books, and issues that they might find objectionable or offensive. Some students have even managed to get themselves exempted from certain readings and assigned alternatives. Some have complained to their legislators about being exposed to ideas they did not like and managed to get them to punish public universities by defunding certain programs. Some have gotten invited speakers uninvited because they were too controversial.
They now seem to have gotten the attention of presidential hopeful, Ben Carson, who appears to be taking up their cause. Speaking of his policy proposals for the Department of Education, he said: “I think the Department of Education should monitor institutions of higher education for political bias and withhold federal funding if it exists,” Carson told Las Vegas radio host Heidi Harris. Of course, political bias is not confined to one party, but the notion that a politician, rather than an academic, would be the arbiter of political bias is problematic to say the least, particularly if that politician comes from a party that has tended to resist things like the expansion of civil rights, the protection of free speech, and the calls for politically correct discourse.
Interestingly, President Obama jumped into the conversation this week. At a town hall meeting, he pushed back against Carson and the censorship occurring on campuses. In response to Carson, he said:
Tuesday, September 15, 2015
Controlled choice has been central to the ability of progressive school districts to voluntarily desegregate. The title of this post is in no way meant to disparage school choice in general, but rather to highlight a recent study by Julia Burdick-Will. Her study revealed an interesting pattern: "as a neighborhood’s income decreases, its range of educational experiences greatly expands." In other words, the assumption that students in disadvantaged neighborhoods are trapped in their failing local school is not necessarily true. Rather, children in wealthier neighborhoods are the ones most likely to stay in their neighborhood schools. No one, of course, would claim these students are trapped. Rebecca Klien points out that going to a strong neighborhood school is the privilege, not choice. Wealthier students have this privilege. Low-income students do not.
Monday, September 14, 2015
Sixteen states received approval Thursday of their plans to improve access to high-quality teachers, as required under the No Child Left Behind law. The ED approved the first batch of states (all 50 states, the District of Columbia, and Puerto Rico submitted plans) as part of its "Excellent Educators for All Initiative." The ED approved locally-developed plans to improve access to effective educators from Arkansas, Connecticut, Delaware, Indiana, Kentucky, Massachusetts, Maine, Missouri, Minnesota, New York, Nevada, Oklahoma, Rhode Island, Pennsylvania, South Carolina, and Wisconsin. Recognizing that attracting and retaining effective teachers also requires effective leadership, the ED praised states' strategies to attract strong school leaders, stating its press release that "great teachers will follow great principals." The ED's release about the initiative is here.
Gavin Grimm has been fight with his school in Gloucester County, Virginia, for the past year to be able to use the boy's restroom. Gavin had previously been allowed to use the boys' bathroom, but when religious and other concerned groups discovered this, they came out in heavy opposition and the school board then banned his use of the boy's restroom.
In January, he filed an administrative complaint with the Office for Civil Rights at the U.S. Department of Education, arguing that his exclusion from the boy's bathroom violated Title IX. This summer he filed a complaint in federal district court. Just as school was to start this fall, the U.S. District Court denied his request for an injunction. Interestingly, it gave no rationale for the denial. It literally only said the court "hereby denies" and that "A memorandum opinion detailing the reasons for the denial will be forthcoming shortly."
Gavin is represented by ACLU attorneys, who say the will opinion the decision to the 4th Circuit. More here.
Friday, September 11, 2015