Friday, October 30, 2015
Fourth Circuit: Congress' IDEA Amendments Did Not Abrogate Supreme Court's FAPE Definition in Rowley
The Fourth Circuit recently held in O.S. v. Fairfax Cnty. Sch. Bd., No. 14-1994, 2015 WL 6122986 (4th Cir. Oct. 19, 2015), that the standard for a free appropriate public education under the Individuals with Disabilities Education Act were not changed by Congress’ 2004 amendments to the IDEA. Thus, school districts are required to meet no higher standard for a FAPE than that set by the Supreme Court in Board of Education v. Rowley (1982). In the case, the parents of O.S., a second-grader, requested a one-on-one aide, extended school year services, and that Fairfax County, VA, school board assign a full-time nurse to O.S.’s school to address O.S.’s disabilities. The school’s representatives on O.S.’s individualized education program team did not adopt those requests, and O.S.’s parents did not agree to the new IEP. O.S. sued in federal district court, which found that the school board had provided a FAPE. On appeal of that decision, the Fourth Circuit rejected O.S.’s arguments that the preamble to Congress’ 2004 IDEA amendment stating its purpose to remedy “low expectations” of children with disabilities,” meant that the IDEA now requires “meaningful” educational benefit as distinct from “some” educational benefit. Following the Tenth Circuit on this issue (and rejecting a contrary Ninth Circuit case), the Fourth Circuit held that the standard for a FAPE remains the same: so long as a child receives some educational benefit, meaning a benefit that is more than minimal or trivial from special instruction and services, a school district has done enough.
In September, a federal district court rejected the attempt of Gavin Grimm-a transgender student-to gain access to the boy's restroom in his public school in Gloucester County, Virginia. The district had previously allowed him to use the boy's restroom, but withdrew access after religious and other concerned groups raised objections. Grimm appealed the decision to the Fourth Circuit. Wednesday, the U.S. Departments of Education and Justice filed an amicus brief in support of Grimm. The argue in their brief that Grimm simply seeks "a benefit that every other student at this school enjoys: access to restrooms that are consistent with his or her gender identity. . . . Treating a student differently from other students because his birth-assigned sex diverges from his gender identity constitutes differential treatment on the basis of sex under Title IX."
The Office for Civil Rights at the Department of Education has already enforced this position in a few administrative complaints, but this may be the most visible and clear statement of policy to date.
New York Makes Major Concession in Small Cities School Funding Case: State Shortchanged Districts $1.1 Billion
The Education Law Center released this announcement yesterday:
In court papers filed in the Small Cities school funding lawsuit, the Plaintiff parents and the State agree that over the past 5 years the 8 districts have not received $1.1 billion they should have received under the 2007 Foundation Aid Formula.
The Foundation Aid Formula was designed to provide New York school districts with adequate resources to provide the opportunity for a sound basic education. The $1.1 billion funding shortfall caused significant cuts in teachers, support staff and programs, and low academic outcomes, depriving district students of their right to a sound basic education under the State Constitution.
This key finding is among the extensive Findings of Fact based on the trial record filed late Wednesday by the Plaintiffs with Judge Kimberly O’Connor in the Albany Supreme Court as the next step in Maisto vs. State of New York, commonly called the Small Cities case.
The case involves school children from the small city districts of Mount Vernon, Port Jervis, Newburgh, Poughkeepsie, Kingston, Utica, Jamestown and Niagara Falls. The students sued the state for not providing its fair share of funding based on the 2007 Foundation Aid Formula, causing their districts to cut teachers, staff and other essential resources and undermining efforts to improve outcomes for students.
The Foundation Aid Formula, enacted in the wake of the landmark Campaign for Fiscal Equity v. Stateruling is designed to provide the every New York student with a “sound basic education” as required by the New York State Constitution.
THE GENERAL FINDINGS OF FACT IN THE PLAINTIFFS’ FILINGS INCLUDE:
- The shortchanging of $1.1 billion has resulted in test scores and graduation rates being unacceptable.
- Lack of funding has caused districts to cut teachers, support staff, and other essential educational resources.
- These cuts have resulted in Maisto districts being out of compliance with state regulations in such areas as academic support for students with disabilities and special needs.
- Every expert testifying for the state in the trial, whether on behalf of both the plaintiffs or the state, agreed that additional funding and resources would improve test score and graduation rates, particularly for high-needs students.
PLAINTIFFS’ FINDINGS SPECIFIC TO EACH CITY SHOW THAT AS A RESULT OF THE UNDERFUNDING:
- Poughkeepsie has lost 130 staff between 2009 and 2014. The district now does not have enough special education programs and academic intervention services.
- Jamestown reduced its staff by 24 percent from 2008 to 2012. The district does not have enough academic intervention services, services for English language learners and early literacy intervention.
- Port Jervis lost more than 10 percent of its staff in one year. In 2010-11 school year, district per pupil spending for a “sound basic education” had a shortfall of 31 percent.
- Utica cut 364.6 staff positions from 2010 to 2014. The district does not have enough academic intervention services.
- Kingston has 115 fewer full-time staffs than it did in 2012. In 2012-13 school district, district per pupil spending for a “sound basic education” had a shortfall of 23 percent.
- Niagara Falls cut 207.5 staff positions since 2009. The district has only a 60 percent graduation rate.
- Newburgh has been shortchanged $239 million by the state. The district does not have enough social workers, counselors or academic intervention teachers for its students.
- Mount Vernon simply has not enough teachers to address the needs of the students. The district had to cut “specials” including library, art, music, band, orchestra and reading teachers have been cut to a minimal level.
The attorneys for the plaintiff parents, Gregory G. Little, White & Case LLP; William E. Reynolds, Nixon Peabody LLP ; David Sciarra and Wendy Lecker, Education Law Center; and Megan M. Mercy, Associate Counsel, New York State United Teachers, note that these districts are plagued by low property wealth, higher than average local tax rates and poverty.
"There is no excuse for the State's failure to provide every student with their constitutional right for an opportunity to have a sound basic education,” said Gregory Little of the White Case firm and a lead counsel in the case. “We trust the legal system will enforce their education rights. It would be far better, however, if the State simply agreed to provide the funding these students and their peers desperately need.”
“For too long, children in these districts have been deprived of essential resources, such as academic intervention, social workers, reading specialists and special education services,” said William Reynolds of the Nixon Peabody firm and also counsel to plaintiffs. “The State enacted the 2007 formula to provide those resources, but then walked away from its promise to these children and their schools.”
“This lawsuit is essential. The State is underfunding these schools and both the State and the plaintiffs agree on that fact,” said Billy Easton, Executive Director, Alliance for Quality Education. "The failure of the state to fulfill its obligations to students is shortchanging students of their educational opportunities and parents and students have had to resort taking the state to court."
The case was heard by Judge O’Connor in New York Supreme Court over a span of eight weeks from January 21 to March 19, 2015. At the close of the trial, Judge O’Connor directed the plaintiffs lawyers and the Attorney General to submit findings of fact based on trial evidence that support their respective positions.
The parties will now file legal briefs, which finalize the trial proceedings and allow Judge O’Connor to make a ruling in the case.
The findings of fact can be found here.
Thursday, October 29, 2015
The Right to an Education or the Right to Shop for Schooling: Examining Voucher Programs in Relation to State Constitutional Guarantees
Wednesday, October 28, 2015
Earlier this summer the Washington Post reported that a U.K. based English tutoring school changed its name from ISIS Schools to prevent confusion with the terror group called ISIS. Many companies around the world are doing that. What stood out was the ease with which ISIS Schools did it, compared with the hand-wringing that we go through in the United States to replace offensive or anachronistic school names. California just took a step forward Sunday with Governor Jerry Brown signing the California Racial Mascots Act, which prohibits public schools from using the term Redskins as a school or athletic team name, mascot, or nickname beginning January 1, 2017. California the first state to ban the use of the term "Redskins." Gov. Brown declined, however, to sign SB 539, which would have prohibited "the use of an elected leader or senior military officer of the Confederate States of America to name state or local property." Gov. Brown said in a veto statement that "[l]ocal governments are laboratories of democracy which are quite capable of deciding for themselves which of their buildings and parks should be named, and after whom."
Scholar Finds That Some North Carolina Charters Are Likely Violating State and Federal Non-profit Law
Tom Kelley's new article, North Carolina Charter Schools' (Non-?) Compliance with State and Federal Nonprofit Laws, 93 N.C. L. REV. 1757 (2015), is now in print. The debate has long raged over whether charters are really non-profits. Too much of that debate is rhetoric that paints with a very broad brush. Kelley's article is deep on specifics and legal analysis, concluding that some charters in the state of North Carolina are no more than fronts for for-profit education management organizations (EMO) and that, as such, they are probably violating federal and state non-profit law. His article is a serious indictment that will surely generate some attention. He goes so far as to call for an investigation of a particular EMO--Roger Bacon Academy. His abstract offers this summary:
In North Carolina, as in most jurisdictions across the country, state law requires that charter schools be governed by nonprofit corporations. This Article examines the governance practices of a select group of North Carolina charter-holding nonprofits and asks whether they are complying with state and federal nonprofit law. It scrutinizes with particular care a group of North Carolina charter-holding nonprofit corporations that have entered into comprehensive management agreements with for-profit educational management organizations, also known as EMOs. Based on an exhaustive analysis of the nonprofit corporations’ board meeting minutes, contracts, financial reports, tax filings, and real estate records, this Article concludes that certain North Carolina charter-holding nonprofits have very likely violated nonprofit law by in essence handing the keys of the charter schools over to the for-profit EMOs, permitting them with minimal supervision or disclosure to convert public educational dollars into significant corporate profits. This Article calls for legal and regulatory reform to rein in abusive practices by for-profit EMOs and more effectively safeguard the public funds that North Carolina citizens have devoted to education.
Tuesday, October 27, 2015
News outlets in Pennsylvania report that without a budget solution in the next week and a half, state funded pre-kindergarten programs will begin closing their doors. All schools and students will soon feel the effects of the education budget battle, but this result is particularly perverse. And I guess this answers my prior blog post--Could School Funding in Pennsylvania Be Any More Problematic?--in the affirmative. Pre-k for disadvantaged students is often the primary remedy that plaintiffs seek in school funding litigation. It is the one program that has the potential to offer the surest and longest lasting results. In Pennsylvania, it is set to be the first thing to go.
A resource officer at Spring Valley High School in Columbia, South Carolina, pulled a female student from her desk by her neck, threw her to the floor, and then dragged her across the floor to another part of the room. The incident was caught on video and has gone viral. Apparently, the student had been disruptive and, at the moment of the incident, was refusing to follow instructions. The incident almost exactly mirrors one described in the U.S. Department of Justice's report on police involvement in Ferguson, Missouri's schools. At pages 37 and 38, DOJ cited that incident as part of a problematic trend of unreasonable enforcement action and added that it
demonstrates a lack of understanding of the negative consequences associated with such arrests. In fact, SROs told us that they viewed increased arrests in the schools as a positive result of their work. This perspective suggests a failure of training (including training in mental health, counseling, and the development of the teenage brain); a lack of priority given to de-escalation and conflict resolution; and insufficient appreciation for the negative educational and long-term outcomes that can result from treating disciplinary concerns as crimes and using force on students. See Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline, U.S. Dep’t of Justice & U.S. Dep’t of Education.
During the media rounds last night, the video prompted predictable debates over whether the use of force was reasonable. Those debates included mind numbing defenses and recriminations that, in effect, repeated the conversations we have heard for the past year in regard to the deaths of several African Americans at the hands of police. While that conversation is obviously a very important one that should continue, it is the wrong one here.
The question here should not be whether the resource officer used reasonable force. The question should be why he was in the school to begin with and why, at this very moment, he was the one directed to resolve the situation. This is a question I have raised and implied on this blog several times. In the last two years, I have noted numerous stories of school resource officers choking, handcuffing, restraining, and locking up in isolation rooms elementary and middle school students, including students with special needs. One Georgia school even saw fit to begin housing rifles on campus.
The answer is simple. Save exceptional circumstances, law enforcement does not belong in school. School resource officers are not educators. They are not sufficiently trained to deal with students. They are not dispute resolution specialists. No doubt, incidents arise when school officials believe that the brute force of law enforcement is beneficial. Even were that the case, the rare benefit that they provide far outweighs the regular burden they bring. They change the culture for students and teachers in ways that are not productive. They bring official confrontation to school. They bring violence into school. They bring real weapons into school. And even if a school were to unwisely accept all of these things as necessary evils, the school should minimize the circumstances when law enforcement is brought to bear on a student. Schools must always be the front line of school discipline and almost always the end line as well. They should only absolve themselves from that role when absolutely necessary. It seems relatively clear that this was not the case in Spring Valley High School.
This from the Education Law Center:
The Court-appointed Monitor overseeing a class action settlement to improve special education in the State-operated Newark Public Schools (NPS) has raised serious questions about the validity of a key record in the NPS files of children seeking special education services. The questionable records are uniformly written, undated letters containing the date for determining whether NPS has complied with a Court-imposed, 90-day deadline for providing services to children with disabilities. The letters were found only in those files taken from district schools to the NPS central office for purposes of the Monitor’s review.
In a semi-annual verification report issued this month, the Monitor, Priscilla Petrosky, questioned the “credibility” of the boilerplate letters because the dates for implementing special education services contradicted other information in the files. She also found no evidence that NPS actually provided the letter to parents, as required by law. The Monitor noted that if she excluded the questionable cases, “100% of [NPS] case files would have lacked agreement with the 90 day Annual Compliance Report.”
“The Monitor’s findings that the records may not be authentic suggest the undated letters placed in students’ files may have been an attempt by an employee or employees of the State-operated NPS to improperly raise the district’s compliance rate,” said ELC Senior Attorney Elizabeth Athos. “As NPS’s self-reported progress in meeting court-imposed deadlines has inched forward over the last three years, the all-important rate at which that progress can be verified by the Monitor has sharply dropped.”
Taking the undated letters “at face value,” the Monitor found that Newark’s compliance rate dipped to a dismal 17% of all randomly reviewed cases, even including the cases with questionable records.
Monday, October 26, 2015
On Friday, the Obama administration took a significant ideological step. After more than a decade and a half of increased standardized testing--what many call drill and kill--the administration has called for a cap on the amount of time public school students spend on taking tests. Students would spend no more than two percent of instruction time taking tests. The administration's goal is to for Congress to reduce "over-testing" in the reauthorization of the Elementary and Secondary Education Act.
On the other hand, it is pretty easy to be against "over-testing" and the administration is arguably late to the game. A national opt-out of testing movement has been growing in strength for the past few years. "Parents, students, educators, your voice matters and was heard,” said Randi Weingarten, the president of the American Federation of Teachers. As discussed here, so many opted out in New York that the state worried its federal funding would be in jeopardy.
What is far less clear, and probably more important, is how reduced testing will be coordinated with the administration's other policies on teacher evaluation and student progress. Regular and detailed tests are the fuel that makes those policies run. This announcement may be a concession that those policies are also flawed, but focusing on over-testing as the enemy may be the means by which to save face as policy moves in a different direction.
Friday, October 23, 2015
USA Today ran a relatively long and data heavy story on school funding earlier this month. For the specialist, there was not anything new in it. But it did offer a good general introduction to funding inequity, explaining that
Nationally, an average of 45.3% of total school funding comes from local sources. Only in one of the poorest districts does local spending account for more than 20% of the district's budget. In those same districts, state sources account for an average of 66% of total funding, and federal sources account for 18.1% of funding on average. Nationwide, state funding comes to 45.6% of total funding, and federal funding comes to just 9.1%."
The comparisons of funding both within and across state lines were also easy to digest. For instance, it framed the problem of inequity by pointing out "Nationally, public schools spend an annual average of $10,700 per pupil. In eight of the 10 wealthiest districts, spending is at least $20,000 per pupil." Get the full story and data here.
Thursday, October 22, 2015
The Children's Rights Litigation Committee of the ABA Section of Litigation is sponsoring a program on Current Trends with OCR Complaint Process on School Disparities and calling for speakers. The program is Monday, December 7, 2015 at 1:00 pm - 2:30 pm Eastern. You can register here.
This roundtable will discuss current trends and outcomes in the civil rights complaint process with the Office for Civil Rights of the Department of Education. The Roundtable will focus on Title VI complaints relating to the school-to-prison pipeline and disparities in school discipline. The program will gather attorneys, advocates, and representatives of complainants to share their experiences and outcomes in filing complaints. Speakers will also discuss a recently released memo which outlines the legal standards for disparate impact claims. This Roundtable is part of an ongoing effort by the Accountability Project, a subcommittee of the Children’s Rights Litigation Committee, to provide tools to civil rights, legal aid and pro bono attorneys in the OCR Complaint process.
Rosa K. Hirji, RKH Law Office, Los Angeles, CA
Rachel Flynn, Nelson Mullins, Columbia, SC.
Call for Speakers: We are looking for speakers who are willing to share their experiences in filing complaints. We would like to circulate your complaint, resolution agreement/letters of finding, and ask you briefly present to the group. If you are interested, please send me an email to email@example.com by November 16, 2015.
Two years ago, Philadelphia's public schools were the first to manifest the symptoms of Pennsylvania's unconscionable system of funding schools. The cuts the district had to make in basic services were startling, including telling full-time school nurses they could only work a day or two a week. When a young girl died shortly after school one day when the school nurse was told to stay home, the problem caught national attention. Shortly thereafter, the national civil rights community descended on the city and the former governor stepped in with short term aid.
Events like those prompted the state to establish a commission to come up with a new funding system. After a long listening and research tour, that commission made proposals this year, and the state appeared to be ready to move forward, albeit imperfectly. The governor proposed a $400 million boost to the state's education budget. The republican legislature responded with only a $100 million increase, apparently as leverage in another fight over taxes on natural gas drillers in the state.
Wednesday, October 21, 2015
Paulina Haduong, Zoe Emma Wood, Sandra Cortesi, Leah Plunkett, Dalia Topelson Ritvo, and Urs Gasser, Harvard University - Berkman Center for Internet & Society. Excerpted from the abstract:
Building off several prior working meetings which mapped and cthe Berkman Center for Internet & Society’s Student Privacy Initiative spoke with educators, policy makers, and industry representatives in May 2015 about the new and rapidly evolving ecosystem of networked technology being used with education (“ed tech”). In order to evaluate the challenges and opportunities fostered by the next generation of ed tech, participants were asked to consider four layers of the ed tech ecosystem: technological infrastructure, data, organizational structures, and norms and values. Keeping these layers in mind, discussion ranged widely across numerous themes, reflecting the participants’ diverse backgrounds and perspectives. This report seeks to summarize the conversation’s main themes and highlight suggestions for future action. In the following section, the main themes and observations are considered, including issues dealt with explicitly and at length, in addition to those that more quietly (and perhaps implicitly) surfaced at multiple points during the day. And although the third section concerns suggested areas for moving forward, these are meant to be understood as key highlights, and not a comprehensive summary. Available at SSRN: http://ssrn.com/abstract=2638022.
Using Michigan's attempt to raise money through tax increases for Detroit's education system as a case study, Shera Avi-Yonah and Reuven S. Avi-Yonah (Michigan) conclude that states are unable to adequately to correct the imbalance in educational equality between inner-city and suburban school districts. The authors propose that
the only solution is a federal solution. As President Nixon proposed in 1972, the United States should adopt an “EducationValue Added Tax” (E-VAT) and use the revenues to equalize per student school funding across the country, as well as funding universal free public pre-K programs (such as the ones instituted by Mayor DeBlasio in NYC) and universal free public colleges for in-state residents (as used to be the case in California). This, we will argue, will do more to address the root causes of lack of equality of opportunity in America than any other potential use of revenues from a federal VAT. Available at SSRN: http://ssrn.com/abstract=2636728
Frederick P. Aguirre (Judge, Superior Court of Orange County, Kristi L. Bowman (Michigan), et al. -
School desegregation is not just a "black and white" issue, and in fact it never has been. In 1931, a county court in Lemon Grove, California ordered a school district to stop segregating its white and Latino students. Fifteen years later in 1946, a court reached the same result in Mendez v. Westminster, becoming the first federal court to order the desegregation of schools. In this piece, Gonzalo Mendez and Sylvia Mendez (both now retired) recall their experiences as the children whose parents initiated the groundbreaking Mendez litigation, and the way in which their parents remembered the litigation. Sandra Robbie, who wrote and produced the Emmy-award winning documentary about the case, discusses its historical context. Frederick Aguirre, now a judge, reflects on the legal and personal significance of the decision. Philippa Strum, author of a book about the case, considers the unique challenges and rewards of writing about school desegregation cases. Kristi Bowman facilitates these various reflections and weaves them together. Available at SSRN: http://ssrn.com/abstract=2629146
Yesterday, Bill Garfinkel, in response to my post on a new segregation study and my reference to ability grouping raised the question of whether we hurt our strongest students and society overall by not offering some form of ability group that offers them the most challenging work they can do. And if so, how do can we deal with this issue in a way that is fair to all? His question is sufficiently important and complicated that it warrants a full explanation.
At the highest level of abstraction, ability grouping is not per se bad or good. It comes in many different forms, good and bad. Thus, the issue may be more one of implementation and form than ability grouping versus non-ability grouping. As to form, ability group can start at various different stages in school. Some elementary schools begin informally grouping students within classrooms and labeling them as rabbits, turtles, etc. as early as kindergarten. Grouping students, even if only within classrooms, is problematic at this very early stages, for reasons further suggested below.
Tuesday, October 20, 2015
A recent study by the National Center for Education Statistics at the U.S. Department of Education reached some new conclusions regarding the achievement gap between black and white students. First, it found that African-American students performed lower in predominantly African-American schools than in other schools. Most prior research attributes this lower performance to the concentration of poverty in those schools. The current study, however, found lower African American achievement even after controlling for poverty and other variables. Second, white students, in contrast, did not score lower in predominantly African American schools than in other schools. Third, because African American students' achievement was lower in predominantly African American schools and whites achievement remained steady there, the black-white achievement gap was larger in predominantly black schools and smaller in predominantly white schools.
Putting these finding together produces a pretty remarkable principle: attending predominantly African American schools hurt African Americans' achievement, but not Whites'. That is a remarkable conclusion, which will surely be subject to debate, critique, and further analysis. But if it is correct, it flies in the face of the conventional wisdom of many white families. The study's findings would suggest that white flight from integrated or predominantly minority schools is not about achieving better academic outcomes for white students, but about racial fears. By the same token, in gentrifying neighbors, white integration into predominantly African American schools is not the risky proposition many families might believe it to be.
Monday, October 19, 2015
A fascinating new study by Hunter Gehlbach, et al, Creating Birds of Similar Feathers: Leveraging Similarity to Improve Teacher-Student Relationships and Academic Achievement, finds that a significant portion of the achievement gap between disadvantaged students and others relates to how closely students and teachers relate to one another. The study also finds that administering surveys to teachers and students and using the results to help them focus on their common responses and interests significantly reduced the achievement gap--by as much as 60%. Although the researchers did not study it, I would speculate that relationship gaps also correlate with negative school discipline responses, which, of course, drive down achievement. If so, this survey intervention might also have a positive impact on reducing harsh discipline responses. The abstract offers this summary:
Christopher Suarez's article, Democratic School Desegregation: Lessons from Election Law, 119 Penn St. L. Rev. 747 (2015), is now available on westlaw. His abstract offers this summary:
Despite their joint relevance to democracy, no article to date has attempted to analyze election law alongside education law. This Article examines the relationship between the doctrinal threads of these bodies of law. From this study, this Article concludes that, while election law is imbued with democratic principles to guide courts and policymakers -- such as the one-person one-vote principle -- education law is not guided by any such democratic principles. Additionally, while electoral boundaries are viewed as malleable under federal law, school district boundaries are not. In light of these doctrinal differences, and in light of the importance of education to democracy, this Article advocates a policy of democratic school desegregation based on a principle focused on reducing socioeconomic isolation in schools. This democratic principle, referred to in this Article as the 60/40 principle, has the ultimate goal of ensuring that no child in the United States attends a school with a low-income student majority. Under this principle, school district boundaries are not sacrosanct and may be adjusted as a last resort to achieve the ideals of democratic school desegregation.
Friday, October 16, 2015
Eleventh Circuit: Ala. Education Assoc. Not Entitled To Discovery About Legislators' Subjective Intent In Passing Law Limiting Use of Funds
The Eleventh Circuit held yesterday that the Alabama Education Association (AEA) could not enforce subpoenas for lawmakers' files in its suit claiming that state Republicans retaliated against the association by eliminating automatic state payroll deductions for membership dues used for political activity. In 2010, the Alabama Legislature passed Act 761, which prohibited payroll deductions for state and local public-sector employee association dues if membership dues funded political activity. The AEA sued under sec. 1983, claiming that Act 761 violated its First Amendment rights because the the subjective motivations of lawmakers in passing the Act governmental retaliation against the AEA for its political speech on education policy. During the suit, the AEA sought subpoenas to show that state Republicans retaliated against the association by passing the restriction on payroll deductions of its members. Alabama legislators responded that legislative privilege shielded them from the AEA’s subpoenas to probe lawmakers' motivations for passing Act 761. The Eleventh Circuit agreed with the legislators. While acknowledging that the AEA's First Amendment claim was an important federal interest, that interest did not yield to legislative privilege. The circuit court distinguished those cases in which the federal interest would outweigh legislative privilege, such as a criminal prosecution. The court held, "the First Amendment does not support the kind of claim AEA makes here: a challenge to an otherwise constitutional statute based on the subjective motivations of the lawmakers who passed it." The Eleventh Circuit further relied on the Supreme Court's holding in United States v. O’Brien, 391 U.S. 367 (1968), that, as a “principle of constitutional law,” courts cannot “strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” The case is In Re: Bentley, 13-10382 (Hubbard v. Alabama Education Association) here.