Thursday, September 10, 2015
Here is the Education Law Center's press release:
Several Nevada public school parents today filed a lawsuit opposing the state's new voucher program, which became law in June at the close of the legislative session. The lawsuit contends that the voucher law diverts funds earmarked for Nevada's public schools to private schooling and other education expenses, in direct conflict with the state constitution.
Nevada's new voucher law sets no household income limits, has no cap on the number of vouchers, and allows public school funding to pay for a wide range of private spending, including private and religious school tuition, home schooling, transportation, and other expenses, including those related to home-based education. The Nevada law creates the most expansive voucher program in the nation.
Wednesday, September 9, 2015
Last week, the Washington Supreme Court in League of Women Voters v. State held that Washington’s charter school statute was unconstitutional. Its reasoning was straightforward. First, the state constitution mandates that the state create and fund “a general and uniform system of public schools.” Second, the constitution further provides that “the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools.” Third, charter schools are funded out of the common school fund. Fourth, charter schools are not “common schools” because: a) they are not subject to the same rules and oversight as the other public or common schools in the state, b) they are governed instead by a charter school board; and c) that charter school boards are not elected by the people, but appointed or selected. As the Washington Supreme Court had established in a previous case, “a common school, within the meaning of our constitution, is one that is common to all children of proper age and capacity, free, and subject to and under the control of the qualified voters of the school district. The complete control of the schools is a most important feature, for it carries with it the right of the voters, through their chosen agents, to select qualified teachers, with powers to discharge them if they are incompetent.” Thus, in short, the charter school legislation is unconstitutional because it directs common school funds to schools that are not “common schools.”
Tuesday, September 8, 2015
The Education Law Center and ACLU of New Jersey issued this press release:
On September 1, several New Jersey students and their families filed a lawsuit challenging the NJ Department of Education’s (NJDOE) attempt to impose new exams and other fee-based tests as requirements for high school graduation without adopting new regulations as required by law.
The lawsuit, T.B., et al. v. NJ Department of Education, contends that NJDOE failed to follow existing regulations or propose new ones under the NJ Administrative Procedure Act (APA) when Commissioner of Education David Hespe announced that new graduation requirements would apply to this September’s incoming senior class.
Friday, September 4, 2015
Mead on voucher programs and state constitutional guarantees
Julie F. Mead (Wisconsin-Madison) explores when does a state's funding of private education voucher programs subvert its constitutional obligations to provide adequately for public education in The Right to an Education or the Right to Shop for Schooling: Examining Voucher Programs in Relation to State Constitutional Guarantees, 42 Fordham Urb. L.J. 703, 704-05 (2015). An excerpt follows:
… The introduction of publicly funded private school choice provisions calls into question what is “public” about “public education.” Distinctions that once were clear--public school versus private school--become blurred. For example, Tony Evers, Wisconsin Superintendent of Public Education, noted that the average private school participating in the Milwaukee Parental Choice Program (MPCP) enrolls more than eighty percent of its students by means of a publicly funded voucher and posed the following question: “If only one in five students enrolled in a choice school pays tuition, then when do choice schools stop being private schools and become something else?” These same statistics prompted the American Civil Liberties Union and Disability Rights Wisconsin to characterize the MPCP participating schools as “private in name only.”
Whether voucher programs alter the nature of the participating schools from private school to some quasi-public or quasi-private form of school is a provocative question. However, the more important question is what such programs mean for a child's right to an education. State constitutions uniformly make some provision of public education, sketching the contours of that right and directing state legislatures to provide it. As such, the question becomes whether a state's subsidy of private education compromises that state's ability to fulfill its obligation to establish and fund public schools consistent with each state's constitutional mandates.
Queenan on amending the IDEA to require school districts to consider broader factors for extended school year services
Rosemary Queenan (Albany) discusses the states' criteria for determining whether a disabled student is in need of special education services during the summer in School's Out for Summer-but Should It Be?, 44 J.L. & Educ. 165, 167 (2015). Excerpted from the article:
States are required to consider the need for extended school year services (ESY services) during the summer months, if necessary, to comply with the Individuals with Disabilities Education Act’s (IDEA) requirement to provide school-age children with disabilities a free appropriate public education. However, the federal regulations do not identify specific factors for determining a child's need for ESY, instead authorizing the states to determine the eligibility standard. As such, the states have established and developed their own criteria for determining whether a disabled student is in need of special education services during the summer. However, questions remain as to the most appropriate factors to be evaluated in assessing eligibility for ESY services, and whether such an assessment should be made based on one factor alone or a variety of factors.
[This article] provides a comparative analysis of the various factors applied by the local education agencies to determine eligibility to receive ESY services. Based on this comparative analysis, [the article] makes the case that the analysis of whether a child with a disability is eligible for ESY services should be based on a multi-factored analysis, and recommends that the IDEA regulations be amended to require or recommend local school districts to consider multiple factors, including the nature of a child's disability, the rate of progress over the course of the school year, and whether critical skills are emerging.
Thursday, September 3, 2015
Pennsylvania had long been one of those states that somehow managed to distribute money to its public schools without an actual funding formula. Rather than distributing money based on head counts, locality cost, special need students and the like, Pennsylvania funded schools through what I call the "Pittsburgh ought to get this and Philly that" method. During Governor Rendell's administration, the state, for the first time, passed a formula, which seemingly improved things a little. But during Governor Corbett's time in office, the state abandoned the formula. This in, no small part, led to the horror stories in Philadelphia, including school nurses being told they could only work one or two days a week. In 2013, on a day when the school nurse was told to stay home, a girl began exhibiting symptoms at school, which later that day would lead to her death. This along with other atrocities led the civil rights community to uncharacteristically descend on the state.
Over the past half year or so, a commission on school funding has traveled the state to seek input from districts and stakeholders on what should be done. This summer the commission submitted a proposal to the legislature, which has yet to act. But whatever legislation might come out of the state house the legislature has proven unable to keep its word in the past. The abandonment of the funding formula is case in point one. Case in point two is the crisis in Chester right now. A few years ago, teachers had to work for free because the district was so upside down in its payments to charter schools. The district is right back in the same position.
Wednesday, September 2, 2015
Shelby County School District in Memphis, Tennessee, sued the state Monday, alleging the state's failure to properly fund schools violated both the state constitution and state statutes. The lawsuit is interesting on several counts. First, Shelby County has, by a significant margin, the largest population in the state. Thus, the funding problems it faces cannot be written off as random. As Shelby County goes, so to does the state.
Second, the state experienced three rounds of school finance litigation a decade ago. That litigation was brought by the small school systems in the state. The argument there was that salaries were so low in rural communities that they could not attract teachers. Shelby County's complaint, in effect, suggests the problem is statewide and not limited to just teacher salaries. It touches almost every aspect of education.
Tuesday, September 1, 2015
Eighth Circuit Upholds District's Decision to Opt Out of School Choice Law To Comply With Desegregation Mandates
The Eighth Circuit has affirmed a district court's ruling that an Arkansas school district acted properly in opting out of the state's school choice statute because to comply with its efforts to remedy the effects of past racial segregation. Derek has followed the related litigation over the 2013 Arkansas Public School Choice Law, which allows students to transfer to schools outside their district, but also allows districts to claim an exemption from the Act if the district was subject to a desegregation order or mandate of a federal court. The plaintiffs in yesterday's Eighth Circuit decision were parents in the Blytheville School District who were prevented from sending their children to another district because the district resolved, for the 2013–2014 school year, to opt out of the School Choice Law because it would conflict with its obligations under a federal court desegregation order. The plaintiffs sued in federal court, arguing that the district violated their due process and equal protection rights under § 1983 and Arkansas' civil rights law by using race as the reason for its exemption and nullifying the 2013 Act "on the pretense that it was subject to a desegregation order" even though that case was closed in 1978. The Eighth Circuit affirmed the summary judgment order of the U.S. District Court for the Eastern District of Arkansas in favor of the district. The circuit court held that the district had a rational basis for believing that the desegregation suit and the related federal agency oversight meant that the district could not take any action that could result in returning to the dual-school system dismantled by the federal desegregation order. The Eighth Circuit also rejected arguments that a parent's ability to choose where his or her child is educated within the public school system is a fundamental right of liberty; nor did the Act create a property interest in exercising public school choice because the parents did not have more than "a mere subjective expectancy of school choice under the Act" since receiving nonresident districts retain discretion to accept or reject transfer students. The circuit court also held that the parents failed to prove that the district had a disparate purpose in claiming the exemption, in part because the parents had no evidence that African-American students were allowed nonresidential transfers on the basis of race. Thus, the circuit court concluded, the proper test for the district's action was rational basis, and the district had a rational basis for believing it was subject to a federal court desegregation order or federal agency mandate which it would violate if it failed to claim the exemption. Read Adkisson, et al v. Blytheville School District #5 here.
In the spring of 2008, shortly after it became pretty clear that Barrack Obama would secure the democratic nomination for president, the then-dean of Howard Law School, Kurt Schmoke, convened a lunch time town hall at the school to discuss the upcoming election and the potential history it would make. I posed the question of whether it was possible that Obama's election might spell a step backward on several of the issues that we held most dear. The response suggested that my question bordered on blasphemy, but fortunately I was surrounded by lawyers and bright students who politely moved on to the euphoria of the times.
I fully supported his presidency and served in the administration's transition team after the election, but I had a sneaking suspicion that we were too optimistic. What we needed was a good dose of Derrick Bell-style skepticism. He was not there, so I played the inadequate fill-in. My concern was not that Obama would lack the conscience of our convictions but that he would face political and cultural opposition that a white candidate pushing those same convictions would not.
Does the IDEA Obligation to Prepare Students for "Independent Living" Include Preparation to Live in a Religious Community? by Maria Blaeuer
A special education case of note, M.L. ex rel. Leiman V. Starr, PWG-14-1679, was filed last month in Maryland. It involves tuition reimbursement under the Individuals with Disabilities in Education Act. The parents' filed for a due process hearing after they unilaterally placed their child, who has Down Syndrome, in an Orthodox Jewish special education school. They lost the due process hearing and then filed a claim in federal district court, where they again lost, this time after cross-motions for summary judgment.
The parents' essential argument is that because of their child's disability, he requires explicit instruction in the traditions and practices of Orthodox Judaism at school if he is to be able to live independently in his Orthodox community after his time in public school ends. The parents argue that this instruction is not available in the public school and, therefore, the school district must pay for his education at an Orthodox special education school. A straight forward and typical argument in these cases, except for the inclusion of the words "Orthodox Judaism".