Tuesday, December 22, 2015
Taylor Bell's Message Really Is Getting Out, All-Star List of Rappers, Professors, and Others Join His First Amendment Plea to the Supreme Court
Somewhat in jest, my earlier posts said that Taylor Bell really knows how to get his message out. Taylor Bell is a high school student who was suspended and sent to alternative school for writing and posting a rap song to the internet that outed coaches at his school who were accused of sexually harassing students. It now seems that he really did pick the perfect medium and genre to do so. Grammy award winning musicians have filed a brief in his support, upping the profile of the case even more and a potentially nudging the scales toward a grant of certiorari that would decide key speech issues in school that the Court has conveniently avoided for several years. Among the most notable names on the brief is Michael Render (aka “Killer Mike”). Cribbing from the brief: "His recent album with rapper and producer El-P, Run the Jewels 2, was the most critically acclaimed record of the year in 2014. When he isn’t recording or performing, he can be found in television studios or university lecture halls talking about a wide range of issues, particularly those related to race and social justice. He performs as Killer Mike—but for this brief, in particular, it probably is worth noting that he has never actually killed anyone."
They summarize their argument this way:
This Court should grant certiorari because the Fifth Circuit’s decision effectively denies First Amendment protections to rap music, arguably the most influential musical genre of the last 50 years. Using rap as his voice of protest, Taylor Bell recorded a song calling attention to serious problems facing students at his school.
In its ruling, the Fifth Circuit focused on the violent rhetoric in Bell’s song. Although the lyrics cited in the ruling are commonplace in rap and reflect some of the genre’s most basic conventions, the Fifth Circuit ruled that they were “threatening, harassing, and intimidating.” As a result, the Government punished a young man for his art—and, more disturbing, for the musical genre by which he chose to express himself.
“Under our Constitution, ‘esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.’” Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2733 (2011) (quoting United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 818 (2000)). Yet this did not apply to Taylor Bell.
. . . .
In attempting to censor Bell’s artistic expression, the school, and later the Fifth Circuit, essentially took aim at rap music, a sophisticated form of poetry that has served as an important vehicle for social commentary and political protest, particularly among young men and women of color. By taking Bell’s song lyrics literally rather than as forms of artistic expression, both the school and the Fifth Circuit essentially delegitimized rap as an art form that is entitled to full protection under the Constitution.
But rap most certainly is art. Like all poets, rappers privilege figurative language and employ a full range of literary devices. They also invent new words, invert the meanings of others, and lace their lyrics with dense slang and coded references that outsiders frequently do not understand. What’s more, rappers famously rely on exaggeration and hyperbole as they craft the larger-than-life characters that have entertained fans for decades.
Bell’s lyrics reflect these complex traditions. Told from the perspective of T-Bizzle—the fictional character created by Bell to narrate the song—PSK da Truth is intentionally provocative. But it draws on the conventions of mainstream rap, particularly the highly successful subgenre of “gangsta” rap.
As this brief discusses, the phrases deemed “threats” by the Fifth Circuit were, in actuality, wellworn rap lyrics borrowed—at times nearly verbatim—from some of music’s most successful and acclaimed performers.
Reading these violent lyrics as a type of autobiography ignores rap’s artistic conventions, thereby negating it as an art form, and perpetuates enduring stereotypes about the inherent criminality of young men of color, the primary producers of rap music. Studies establish that many people also harbor negative stereotypes about rap music that they do not have about other musical genres.
If our judicial system allows these stereotypes to go unchallenged, justice will continue to be elusive for those Americans most in need of a voice—a voice that rap music has given them.
Interestingly, I could see this brief as being one of the most helpful and informative the Court gets. Just as judges know far too little of the technology that are asked to adjudicate in patent and other disputes, I suspect they know relatively little of music, at least rap. As the brief makes clear, adjudicating this case on the face of the words spoken misses the whole point. Get the full brief here: Download Taylor-Bell-Amicus
Preston Green, Bruce Baker, Joseph Oluwole, and Julie Mead have put the draft of their forthcoming article, Are We Heading Toward a Charter School 'Bubble'?: Lessons from the Subprime Mortgage Crisis, on ssrn. The article builds on Mark Naison’s earlier essay, which highlighted the growing number of scandals and policy problems in charter schools and described their resemblance to the subprime mortgage crisis. Green and his colleague’s article explain “how Mark Naison may be correct in asserting that charter schools are developing conditions that are reminiscent of the subprime mortgage crisis.” In particular, they argue that the adoption of multiple charter school authorizers creates incentives and conditions similar to those previously present with mortgages. They then posit
what a “bubble” might look like in the charter school sector. Employing the policy bubble framework developed by Moshe Maor, we explain how the combination of multiple authorizers and EMOs might work together to create an abundance of poor performing schools in Black, urban communities. We also discuss the process by which such a bubble might actually burst in the process, creating disarray in these communities. The final section discusses the steps that federal and state governments should take to avoid the creation of policy bubbles in these vulnerable neighborhoods.
Thursday, December 17, 2015
Yesterday, Rebecca Klein published an excellent story exploring a bilingual program in Oregon that appears to be improving outcomes in all respects for all students involved. She writes:
Heritage Elementary School isn't a fancy private school, or even a public school nestled in an affluent suburb where parents pay high property taxes to give their kids a good education. It's part of the Woodburn School District, which has an expansive dual-language program although the vast majority of students qualify for free or reduced-price lunch.
Many students enter Woodburn schools without knowing any English, but can switch seamlessly between two languages by the time they leave.
And these students are not just bilingual. Woodburn students are also more likely to graduate from high school than students from districts with similar populations and levels of poverty, according to Chuck Ransom, the district's superintendent. Most importantly, they're more likely to continue on to higher education, which leads to better job opportunities and, ultimately, a better quality of life.
. . . .
But in 2014, Woodburn School District had the highest on-time high school graduation rate for Latino students in the state, and the second-highest graduation rate for students who weren't native English speakers. Its overall graduation rate fell within the top 10 percent of Oregon school districts.
In the decade since the district enacted its dual-language program, the gap in graduation rates between Woodburn's English language learners -- or ELLs -- and native English speakers has closed. Experts say that if implemented properly, dual language programs not only encourage students to appreciate other cultures as well as their own, but can even help desegregate districts where minority students and their white counterparts attend separate and unequal schools.
Just before the recession, I had a growing sense that programs like these were going to take off, as parental demand was increasing. Unfortunately, the recession promoted an isolationist mentality where communities tried to protect whatever they had and did not dare try something new--save the new curriculum and teacher evaluation policies the federal government was forcing on them. Klein's story suggests we may be returning to more sane times. Even in Columbia, South Carolina--not typically a leader on these issues--the district conducted a survey this past fall to test parental interest in starting a bilingual school in the near future. The district has relatively significant segregation challenges and this would be a significant step to begin addressing some of it.
Wednesday, December 16, 2015
Newark Settles Civil Rights Complaint Alleging School Closures Were Discriminatory, Reveals Lessons for Other Cases
The Advancement Project and Newark's Parents Unified for Local School Education filed a complaint with the the U.S. Department of Education challenging Newark's school closures. They alleged that the closures disproportionately affected minorities and students with disabilities and violated Title VI of the Civil Rights Act and Title II of the Americans with Disabilities Act. Newark had closed several traditional public schools during the recession, consolidating them with other traditional public schools and/or replacing them with charters. OCR found that the closures did, in fact, disproportionately affect minorities and students with disabilities and did not produce the benefits that the district claimed was the basis for the closures in the first instance. Last week, Newark agreed to take remedial action. The problem, however, is that school closures cannot reasonably be reversed and Newark still got what it wanted. The remedial steps Newark now promises are relatively mild:
- Identify whether any transferring students have suffered any academic deficiencies and take steps to remedy them.
- Determine whether transportation issues affected the ability of transferring students to participate in extracurricular activities.
- Investigate where disabled transferring students were provided with appropriate special education and related aids and services in the receiving school; and if not, whether compensatory or remedial services are necessary.
Nonetheless, advocates saw this as a victory, as they should. A similar and more aggressive and disproportionate set of closures occurred in D.C. in recent years, but the challenge to them failed. As my earlier blog post noted:
In DCPS schools as a whole, 68.4% of students are black; 13.8% are Hispanic; 3.7% are Asian, other, or unknown; and 9.2% are white. In the schools slated for closure, by contrast, 93.7% of students are black; 5.9% are Hispanic; 0.4% are Asian, other, or unknown; and less than 0.1% (2 out of 3053) are white. The figures skew similarly, if less starkly, for disabled students: 27.7% of students in the closing schools are in special education, versus 14.2% of students in DCPS overall."
There, advocates filed suit in federal district court seeking an injunction, but the court denied their injunction and dismissed the case. Thus, by rough comparison, the Newark decision is enormous.
One analytical difference also bears emphasis. OCR evaluated the efficacy of the closures after the fact, which allowed it to find that the justifications for the closures had proven flawed. In D.C., plaintiffs sought to block the closures earlier and argued, based on social science and expert opinion, that the closures would harm students and not produce the benefits the district claimed to seek. The district court, however, ignored these prospective claims and assumed the District's goals to be valid. I have not seen any subsequent research confirming or rejecting plaintiffs factual allegations, but to the extent their factual allegations were not novel, it raises the question of whether courts should take social science and expert opinions more seriously in similar cases. Newark's experience suggests they should.
Tuesday, December 15, 2015
Federal courts commonly find that live nativity scenes on school grounds violate the First Amendment's Establishment Clause. Consistent with that precedent, the Northern District of Indiana issued a preliminary injunction earlier this month enjoining a Indiana high school from "portraying a nativity scene during a musical Christmas show. Last weekend, the high school in the case, Concord High School, presented its Christmas show with a static nativity scene, a move that the plaintiffs in the case say exploited a loophole in the order to ignore the court's ruling. On December 2, the district court granted the request of the Freedom From Religion Foundation (FFFR) to enjoin "any portrayal of a scene that is composed of live performers as part of [the school's] Christmas" Spectacular shows." The district court agreed with the FFFR that the nativity would "convey a message of endorsement of religion to a reasonable observer," thus failing the requirement of government neutrality towards religion established in Lemon v. Kurtzman, 403 U.S. 602 (1971). The district court rejected the school's arguments adding projected pictures with symbols of Chanukah and Kwanzaa and having the band and choir perform a tribute to each holiday to the Christmas show made the nativity scene simply an educational reference to Christianity rather than an endorsement. The district court noted that although the nativity was on stage for twelve minutes out of the ninety-minute show, (about thirteen percent of the show), the other religions were three to four minutes and had no visual performance as part of the musical. In the school's potential defense for using mannequins in the weekend show, the court's opinion had rejected FFFR's argument that a performed nativity scene would necessarily endorse religion without considering the context in which that performance would take place. The case is Freedom From Religion Found. v. Concord Cmty. Sch., No. 3:15-CV-463 JD, 2015 WL 7776561 (N.D. Ind. Dec. 2, 2015).
Friday, December 11, 2015
Congress Again Fails to Tackle Equity in Revised Federal Education Law by David Sciarra and Molly Hunter
On December 9, 2016, Congress passed a bill reauthorizing the Elementary and Secondary Education Act (ESEA), and President Obama signed it today. The new "Every Student Succeeds Act" (ESSA) retreats somewhat from excessive high-stakes testing, and eases up on sanctions and labels for schools, teachers and students. Overall, the law moves away from narrow federal mandates on testing and accountability, leaving states to their historic and central role in educating our nation's public school children.
But once again, Congress has failed to confront the central problems that plague most of our 50 separate state school systems.
The new law, like the "No Child Left Behind" Act (NCLB) it replaces, gives the States free reign to continue the vast and debilitating inequities and disparities in their school systems. For our nation's most vulnerable children, ESSA is "same as it ever was."
Most states are shortchanging schools the funding and programs needed to give all children the chance to succeed, especially the growing numbers of children in poverty in districts and states across the country. Millions of children in our state systems attend schools deprived of the teachers, support staff and other resources essential to learning. Only a handful of states have made the effort to overhaul their finance systems to deliver those resources to schools and students most in need.
Congress could have required the states move away from funding schools based on dollars and politics to providing students and schools the resources necessary to achieve academically. Congress could have required states to build capacity to deliver high quality supports to,font help high risk schools and districts to improve. And Congress could have taken bold action to press states to dramatically expand access to high quality early education to give at-risk youngsters the opportunity for school readiness. Congress received these recommendations from the federal Equity Commission in 2013 but chose to ignore them.
Parents and advocates deserve credit for pushing Congress to retreat from NCLB's extreme test and punish provisions. But with the states now firmly in the education driver's seat, parents and advocates must turn their attention to their statehouses. Parents and advocates must now build strong campaigns for education equity in every state, demanding governors and legislators provide fair funding, support high poverty schools, and offer high quality preschool to every vulnerable three- and four-year old.
ESSA, like its NCLB predecessor, will do little to help every student succeed. But every student matters. It's time to let the state lawmakers responsible for our public schools know.
David G. Sciarra is the Executive Director of Education Law Center (ELC). Molly A. Hunter is Director of Education Justice at ELC.
Thursday, December 10, 2015
I cannot recall any week, much less a single day, in education that carried two events as momentous as yesterday. The Senate passed the rewrite of the Elementary and Secondary Education Act (ESEA) by a vote of 85-12, which sends the bill to the President's desk, who will unquestionably sign it. At long last, No Child Left Behind will be no more. I will have far more to say on the substance of the bill in the coming weeks and months ahead. For now it suffices to say that if NCLB and the Secretary's waivers federalized education, this new bill has defederalized it. That is not to say that change was not in order. It is to say that this change significantly changes the federal role in education.
While Congress was signing off on the ESEA, the Supreme Court was arguing over the future of affirmative action in education, and I do mean the Supreme Court was arguing, not just the litigants. Apparently, the Chief Justice felt compelled to cut Justice Sotomayor's questioning off twice because she was not permitting Fisher's attorney to finish his response to questions. Given how Fisher I turned out, I will not attempt to read the tea leaves. I will only say that I thought the demise of affirmative action was greatly exaggerated in advance of that case. I have faith the same is true this time. That does not mean, however, the result in the case will be satisfactory. I doubt that even more. I would expect a compromise as tortured as the one we see in the ESEA rewrite. Read the oral argument transcripts here.
Fifth Circuit Rejects Claims That District Disproportionately Funneled At-Risk Students to Minority Schools
The Fifth Circuit recently decided Lewis v. Ascension Parish Sch. Bd., the contentious school rezoning case that we discussed on the blog last year when it was headed to trial. To recap, plaintiff Darrin Lewis challenged a Louisiana school board's rezoning plan (called Option 2f) that assigned a disproportionate number of at-risk students to Lewis' children's school, East Ascension High School, the only majority nonwhite and majority at-risk high school in the district. (East Ascension was projected to have 57% at-risk enrollment, more than twice the at-risk enrollment at nearby majority-white schools.) Lewis argued that the board's feeder plan deprived Ascension students of educational opportunities afforded to non-minority students. In its November decision, the Fifth Circuit upheld the district court's judgment for the school board, which concluded that the plan was facially race neutral because Lewis did not make a threshold showing that the redistricting plan treated similarly situated students of different races differently and failed to establish that the plan had a discriminatory effect. The Fifth Circuit focused on Lewis' two primary arguments: that "Option 2f was subject to strict scrutiny (1) because it contains explicit racial classifications, and, alternatively, (2) because its funneling feature was motivated by racial animus and had a disproportionately adverse impact on nonwhite students in the East Ascension feeder zone."
Resolving the first argument, the Fifth Circuit adopted the reasoning of the Third and Sixth Circuits that school zoning plans that assigns students based on their home addresses "is facially race neutral, and the rezoning body’s consideration of demographic data in drawing the relevant geographic boundaries does not amount to making an express classification." In doing so, the Fifth Circuit distinguished Ascension Parish's plan from that would be subject to strict scrutiny, such as the one in Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007), because in Parents Involved, in which officials explicitly considered race and the overall racial makeup of the school when making student assignments. TAlthough the Ascension district considered racial demographics and desired to maintain unitary status through racial balancing, the court concluded that the district's decision was not explicitly based on race and thus was subject to rational basis rather than strict scrutiny review. The circuit court also rejected Lewis' argument that the redistricting plan’s feeder plan was subject to strict scrutiny review because it had both a discriminatory purpose and a discriminatory effect. The court found that Lewis' evidence that the percentage of at-risk students in the East Ascension feeder zone increased after Option 2f was insufficient to show either discriminatory purpose or effect. Lewis v. Ascension Parish Sch. Bd., No. 15-30030 (5th Cir. Nov. 17, 2015) is here.
Wednesday, December 9, 2015
Tennessee Lawsuit Accuses Nashville Schools of Removing Students From Classes To Raise District's Year-End Exam Scores
In a short complaint filed this week in Tennessee Chancery Court, a student alleges that that the Nashville Metropolitan Public Schools' uses a "cynical and self-serving" practice of prematurely removing students from classes that the district anticipates that students will fail in violation of due process and their state constitutional rights to an education. The student, Toni Jones, states that she was removed from an algebra class after she performed poorly on a practice test that the district used to predict students' performances on final exams. She was passing her algebra class, but alleges that because of the district's policy, she fell behind her peers and was not promoted to the next grade. Jones was placed in an online remedial math course, but she states that the class did not assist her as much as an in-person instruction would have, and she was thus unprepared for the next term's geometry class. The complaint contends that the Nashville Metro district removes students from classes prematurely to "fraudulently inflate its End-of-Course scores." The complaint is on Scribd here.
The Wisconsin Supreme Court has taken up an interesting case that questions the powers of the state superintendent of education. In dispute is a 2011 law that requires all administrative rules to be approved by the governor. Under that law, the governor is asserting power over the state superintendent. But a state supreme court case from two decades ago, Thompson v. Craney, 546 N.W.2d 123, 134 (1996), held that the state superintendent is an independent head of the Department of Public Instruction. The relevant constitution text was amended in 1902 to read:
The supervision of public instruction shall be vested in a state superintendent and such other officers as the legislature shall direct; and their qualifications, powers, duties, and compensation shall be prescribed by law. The state superintendent shall be chosen by the qualified electors of the state at the same time and in the same manner as members of the supreme court, and shall hold his office for four years from the succeeding first Monday in July. The state superintendent chosen at the general election in November, 1902, shall hold and continue in his office until the first Monday in July, 1905, and his successor shall be chosen at the time of the judicial election in April, 1905. The term of office, time and manner of electing or appointing all other officers of supervision of public instruction shall be fixed by law.
The court concluded:
Our review of these sources demonstrates beyond a reasonable doubt that the office of state Superintendent of Public Instruction was intended by the framers of the constitution to be a supervisory position, and that the “other officers” mentioned in the provision were intended to be subordinate to the state Superintendent of Public Instruction. Because the education provisions of 1995 Wis.Act 27 give the former powers of the elected state Superintendent of Public Instruction to appointed “other officers” at the state level who are not subordinate to the superintendent, they are unconstitutional beyond a reasonable doubt. If changes such as those proposed in 1995 Wis.Act 27 are to be made in the structure of educational administration—and we express no judgment on the possible merits of the changes—they would require a constitutional amendment.
That the current state law is in direct contradiction of this precedent. The state attorney general is asking the court to reverse Thompson and, thereby, bring the state superintendent under the control of the governor. I am guessing the the odds on this are long. The lower court, in a straightforward decision, has already ruled against the state. As it remarked in closing,
We reject th[e governor's] argument for reasons that should be obvious by now. The argument's premise, that the Governor's new power conferred by Act 21 gives the Governor “no power to fashion the text of a proposed rule,” is a premise Walker and Huebsch do not attempt to explain or defend. So far as we can tell, it is a premise that ignores reality. It seems beyond reasonable dispute that a Governor at loggerheads with an SPI over the content of a proposed rule, or proposed rule change, could use the threat to withhold approval as a means of affecting the rule content. Moreover, the analogy to the Governor's power to veto legislation is unpersuasive. As here, the threat of a Governor's veto can shape proposed legislation toward the Governor's preference. And, by constitutional design, a Governor's veto can be overridden by the legislature. Here, the Governor's approval authority is not similarly limited.
The case also has implications on a related phenomenon in other states: charter legislation that divests the state superintendent of educational authority. The Washington Supreme Court struck down that legislation earlier this year. What Washington and Wisconsin's legislature and governor fail to appreciate is that in those states where the superintendent of education is a constitutional officer, the state is not free to pass any education legislation that suits its fancy.
Tuesday, December 8, 2015
In October, I remarked that Palestine Illinois School District 211 was taking a particularly hard line stance against the Office for Civil Rights' (OCR) demand that the district permit a transgender student to use locker room facilities consistent with her gender. I wondered whether that stance might prompt OCR to accept some compromise resolution, given that the consequences of non-compliance would be enormous--$6 million--and affect a lot of innocent bystanders in the district. This, of course, is always a problem with Title VI and Title IX enforcement, as they amount to a very high stakes game of chicken when a district shows any significant level of resistance. Here, my assessment of both the district and OCR's resolve may have been mistaken. The district buckled last week, voting to grant the student equal access.
Hats off to OCR for standing firm. The final resolution here reminds me of the hard stances that OCR and DOJ took during desegregation, which forced districts to take integrative steps that they had long avowed they would not. It also reminds me that this progressive assertiveness has been a hallmark of OCR's enforcement over the past two years--whether it be in regard to gender, school discipline, or education resources.
For those who missed the National Coalition on School Diversity's recent conference, "21st Century School Integration: Building the Movement for Diversity, Equity, and Inclusion," the Poverty and Race Research Action Council has published a set of articles and essays that further detail the major research and practical experiences revealed at the conference. They include
- Making School Integration Work in Integrated Schools
- Inviting NYC Students onto the Scene of School Integration
- Next Generation Schools in Maryland
- Embrace Race
- City Garden Montessori School in St. Louis: A Story of Education Reform, Gentrification, and Housing Advocacy
- Neighborhood Schools-An Etymology
Read the articles here.
Monday, December 7, 2015
Teacher tenure lawsuits that allege that tenure prevents school districts from firing ineffective teachers have been discussed on this blog here and here. Two recent student journal notes that discuss two prominent cases, Vergara v. California and Davids v. New York, are excerpted below.
Michael J. Dejianne, The Right to Education: Reconciling Teacher Tenure and the Current State of Public Education, 46 Seton Hall L. Rev. 333, 334-35 (2015).
Some of the most controversial legislation surrounding education policy is teacher tenure statutes. Tenure is an employment protection awarded to teachers, the qualifications of which vary by state. Though the right to tenure does not technically create absolute immunity from dismissal, tenure reform advocates argue that some state statutes protect ineffective teachers from termination and thereby directly harm the quality of education. Overturning these statutes has proven to be difficult, especially when state supreme courts offer education the lowest level of equal protection analysis. In August of 2014, a California district court held that certain state teacher tenure statutes violate the California Constitution. In Vergara v. State of California, Judge Rolf Treu held that the challenged teacher tenure statutes detracted from the quality of California's education and enjoined their enforcement. Because California considers education a fundamental right, state courts must apply the highest level of equal protection analysis. Plaintiffs in New York subsequently challenged state teacher tenure statutes in a similar fashion. With the upcoming appeal of the Vergara decision and a trial scheduled in 2015 for Davids v. New York, it is important to analyze whether teacher tenure statutes detract from the quality of education and therefore violate a state's constitution. This Comment aims to answer these questions, examine the plaintiffs' arguments in Vergara and Davids, and evaluate the effectiveness of New Jersey's recent teacher tenure reform. Ultimately, this Comment advocates for courts to accept the plaintiffs' arguments, recognize the states' teacher tenure statutes as void, and direct the California and New York legislatures to adopt an approach similar to New Jersey's recent reform.
Michele Aronson, The Deceptive Promise of Vergara: Why Teacher Tenure Lawsuits Will Not Improve Student Achievement, 37 Cardozo L. Rev. 393, 395-96 (2015).
This Note evaluates the promise of teacher tenure lawsuits in state courts to improve student achievement, and argues that lawsuits such as Vergara will ultimately be unsuccessful in doing so. The Note draws on lessons from education litigation reform efforts over the last seventy years, particularly school finance litigation. Part I provides background information about the persistent problem of poor student achievement in American public education in the last seven decades, and describes school finance litigation as the major reform effort to improve student achievement. Part II discusses Vergara and teacher tenure litigation more broadly as the newest wave of litigation attempting to improve student achievement. Part III compares teacher tenure litigation to school finance litigation and proposes that teacher tenure litigation will likely be unsuccessful in improving student achievement in the United States for the following four reasons: (i) courts will find that teacher tenure lawsuits present a nonjusticiable political question; (ii) plaintiffs in teacher tenure lawsuits will lose on the merits, especially in states that do not recognize education as a fundamental right; (iii) courts cannot fashion meaningful remedies for plaintiffs in teacher tenure lawsuits; and (iv) even if plaintiffs in teacher tenure lawsuits surmount those obstacles, the lawsuits will not significantly improve student achievement because the complicated factors that affect student achievement are beyond the scope of teacher tenure laws.
Friday, December 4, 2015
New Mexico's Teacher Evaluation System Struck Down, Raising Equally Serious Questions About the Challenge to Tenure in Other States
On Wednesday, the trial court in Stewart v. New Mexico enjoined New Mexico's value added method [VAM] of teacher evaluation. Although the state is free to continue to use its VAM for diagnostic or other purposes, it cannot use it for high stakes purposes of terminating teachers or placing teachers on notice of future termination. Nor can it use the VAM to revoke licenses or deny raises. At this point, plaintiffs have only secured a preliminary injunction. The state will get a second bite at the apple if the case moves forward to a full trial, but the court's opinion indicates any number of problems with the VAM that will require major reworking if the state intends to re-implement its system at any point in the future.
Throughout its opinion the court reaches findings that demonstrate the general unreliability of New Mexico's VAM. This is most obviously demonstrated by random variations in how the VAM affects teachers from district to district and year to year. The randomness stems from fundamental flaws, such as arbitrary cut scores purporting to separate ineffective from other teachers, a disconnect between the evaluation of students' standardized test scores and the calculation of teachers' VAMs, and numerous different types of data errors that render ratings invalid. The problems may have best been summed up by a superintendent who admitted that he could not tell the judge why a teacher was rated as ineffective. He just knew that was her rating.
This opinion stands in stark contrast to the 11th Circuit decision in Cook v. Bennett, 792 F.3d 1294 (2015), which upheld Florida's VAM notwithstanding even more egregious problems, such as rating teachers based on student scores in subjects that they did not even teach. See here for my prior analysis of that case.
More globally, the findings in New Mexico also demonstrate a fundamental flaw in constitutional challenges to tenure in Vergara v. California and Davids v. New York. Vergara and Davids claim that grossly ineffective teachers deprive students of their constitutional right to quality teaching. There are several problems with their theory, see here, but the underlying problem is that the method by which they purport to label teachers ineffective--VAMs--is unreliable itself. In other words, even allowing the idea that retaining grossly ineffective teachers rises to the level of a constitutional violation, plaintiffs in California and New York lack the tools to reliably deal with the problem. As such, their proposed solution would be unfair to teachers and likely violate due process.
Thursday, December 3, 2015
SC Attorney General Files Amicus Brief in Transgender Student's Appeal to Use Boys' Bathroom at School
In a suit that we have been following here and here, South Carolina Attorney General Alan Wilson has filed an amicus brief in G.G. v. Gloucester County School Board. The suit’s plaintiff, Gavin Grimm, is a transgender student who sued the school board about its policy that prohibited him from using the boys’ bathroom at Gloucester High School (VA). In September, the Eastern District of Virginia dismissed Grimm’s claim under Title IX. In the appeal to the Fourth Circuit, Attorney General Wilson filed an amicus brief on behalf of Arizona, Mississippi, South Carolina, West Virginia, and the Governors of Maine and North Carolina. The amici’s argument tracks the district court’s finding that Congress defines “sex” in Title IX as biological sex, not gender identity. Amici argue that that if “sex” means gender at birth, Grimm has access to girls' bathrooms and single-stall restrooms that are comparable to ones provided for boys, and thus, Grimm has no claim under Title IX. Although Grimm's driver's license identifies him as male, amici argue that because "G.G. has two X chromosomes," "female sexual and reproductive organs, and lacks the male sexual and reproductive organs," he should be considered biologically female and therefore was properly prohibited from using his school’s bathrooms designated for males. The Attorney General's brief can be viewed here.
Can Plaintiffs' Educational Adequacy Challenge to the Growing Hypersegregation in Minneapolis Reinvigorate a National Movement?
Plaintiffs in Minneapolis and Saint Paul have filed a lawsuit against the state, alleging that the racial and poverty segregation in the metropolitan area violates the state constitution's education clause, equal protection clause, and due process clause, as well as the Minnesota Human Rights Act. The state supreme court has previously recognized education as a fundamental rights. On that basis, plaintiffs challenged segregation in Minneapolis in 1995. The Supreme Court never reached the merits of whether the segregation violated the state constitution, but held that plaintiffs case could move forward to trial. Plaintiffs presented a sufficiently compelling case that the state settled the case and agreed to an integration remedy.
In recent years, however, segregation in the metropolitan area has dramatically increased, with little or no effort by the state to abate it. To the contrary, charter school and other attendance policies are making matters worse. While children of color and low income students are respectively only 29 and 38 percent of the state's overall school population, "the public schools of the City of Minneapolis are approximately 66 percent children of color and 64 percent free or reduced lunch; and the public schools of the City of Saint Paul are 78 percent children of color and 72 percent free or reduced lunch." The adjoining surrounding school districts, however, are "overwhelmingly white" and predominantly middle income. Moreover, within the city school districts themselves, the state has created predominantly white and middle income schools alongside hyper-segregated poor and minority schools. Plaintiffs allege that "[t]he segregation and hyper-segregation [in these schools] have been the result of boundary decisions by the Minneapolis and Saint Paul School Districts, made with the knowledge and consent of defendants, which have had both the purpose and effect of creating and increasing segregation of the Minneapolis and Saint Paul public schools by race and socioeconomic status."
Charter schools, in particular, seem to have been the means to exacerbate segregation:
The Twin Cities metropolitan area now contains 131 charter schools, over 80 percent of which are segregated by race, socioeconomic status, or both. [Nearly seventy charter schools] are either more than 95 percent students of color or more than 80 percent white students. Nearly a third (42 of 131) of charters in the Twin Cities are more than 95
percent students of color. In addition, there is a growing pattern in the suburbs of predominantly white charter schools locating near more racially diverse traditional schools. In 2013, 67 percent of suburban charters (32 out of 48 schools) were predominantly white (defined as more than 80 percent white students) compared to just 44 percent of traditional schools in the suburbs. More than half of predominantly white suburban charters were located in the attendance areas of traditional schools that were significantly more racially diverse. This figure has nearly tripled in the previous five years.
This case is, of course, Minnesota's version of the Sheff v. O'Neill litigation in Connecticut, which produced the first and only state supreme court decision holding that racial segregation--even if de facto--denied students equal educational opportunity under the state constitution. The remedies in Sheff have garnered significant attention over the past year or so, with the New York Times criticizing the state of New York for its failure to replicate Connecticut's common sense remedies to address New York's hyper-segregation. Were Minnesota's supreme to eventually become the second state supreme court to formally validate the theory in Sheff it would go a long way to speeding along a movement two decades in the making. It is also worth noting that charter schools were not around in any real sense when Sheff was decided, but magnet schools were. Those consciously pro-integration magnet schools of choice have been the central means of integrating schools in Connecticut, whereas Minnesota's integration-agnostic charters of choice have become a major tool of segregation.
Get the full complaint here: Download Minnesota Complaint
Wednesday, December 2, 2015
The Huffington Post reports that Senators Elizabeth Warren, Richard Blumenthal (D-Conn.), and Richard Durbin (D-Ill.) scolded the Education and Justice Departments Monday for the government's recent settlement with the Education Management Corporation (EDMC), the for-profit college company accused of using illegal recruiting practices to persuade students to take on massive loan debt for degrees that frequently did not lead to profitable careers. In the recent settlement with the government and four states, EDMC settled claims that it ran employed recruiters to pressure students to attend its its schools, including The Art Institutes, Argosy University, Brown Mackie College and South University. In the letter, Sen. Warren took ED Secretary Duncan to task for stating to the press after the settlement that EDMC's actions were "not misrepresentations to students," and thus, its students may not be eligible for debt relief programs. Sen. Warren's letter argued that student debt relief should have been part of EDMC's $95.5 million settlement with the government or that the company should have been required to admit wrongdoing. Instead, Warren wrote, EDMC's fine was less than one percent of the estimated $11 billion in student loan aid that the company fraudulently received, and because there was no admission of guilt, none of EDMC's individual executives will be prosecuted. Letting the company's executives off the hook conflicts with the Justice Department's "Individual Accountability for Corporate Wrongdoing," policy announced this September, Warren noted. The letter request that the ED and the DOJ respond to the Senators' concerns by December 17.
Affirmative action will return to the Supreme Court next. It will host oral arguments in Fisher v. Texas on Wednesday. The Century foundation is hosting a debate on the case, with distinguished guests on both sides of the issues, and a preview of likely arguments on Monday. More here. Lyle Denniston also put up a preview of the issues and arguments this morning on Scotusblog. At this point, Texas has two wins before the Fifth Circuit and is looking for its first substantive win before the Supreme Court. This time, the plaintiff seems to have shifted her argument. As Denniston writes,
In this second time around, Fisher has put forward both a quite modest claim, and a more ambitious — even momentous — claim.
The simpler challenge is that the Fifth Circuit disobeyed the Supreme Court’s 2013 order to reconsider the Texas policy using a rigorous “strict scrutiny” approach. The majority in the two-to-one ruling, the new petition argued, gave the university a pass, allowing it to control the defense of the admissions program on the university’s terms, without the majority boring deeply into the actual use of race.
The fact that the Court has granted review again, with no change in the policy since its last review, hints at the possibility that the Court might be content to clarify further the guidance it gave last time, and let the Fifth Circuit have another go at it.
Further complicating the case is the fact that, as last time, only eight justices will hear the case and a 4-4 decision would mean affirming the Fifth Circuit.
Tuesday, December 1, 2015
Well, I suppose that the day on which we are technically waiting is the day the President affixes his signature to a reauthorization of the Elementary and Secondary Education Act, but we have not even seen legislative language that had a chance of getting to the President's desk since No Child Left Behind was first passed in 2001. The Act has needed reauthorization since the beginning of the Obama administration. Were it not for a fights over health care and then a change in Congress, we would have gotten a reauthorization bill six or so years ago. After that, reauthorization became a pipe dream. Insiders had written off reauthorization until the next administration. But somehow, against all odds, the Senate's efforts to pass a reauthorization bill turned into the little train that could. Notwithstanding a House of Representatives at war with itself, the resignation of the Speaker of the House, and the resignation of the Secretary of Education, an unlikely bipartisan group in the Senate has trudged along to find a middle ground. The Senate and House reconciliation committee has now released what is a near final bill that will be introduced in both houses in about a week and should pass relatively easily.
None of this is to say the reauthorization bill is a good one. At first glance, it is a setback to a productive federal role in education. It may have made it this far for no reason other than the passage of time has lowered expectations so far that many would accept almost any bill that presses the reset button on NCLB and Secretary Duncan's waivers. Regardless, the long awaited bill is finally here. The full bill and a cheat sheet on what it does is available here.