Monday, January 11, 2016

Firing of New York City Teacher Raises First Amendment and Performance Issues

The story of teachers--or any employee for that matter--who spoke up on a controversial reason only to be later terminated for performance based reasons is an old one.  Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), was, of course, a due process case in which a professor on a one-year contract did not have his contract renewed.  The Court held he was not entitled to due process, but from Roth's perspective the case was about free speech, not due process, as he had taken up students' fight for racial equity on campus.  He claimed this was the reason for his non-renewal.

A recent firing of a New York City public school teacher, Jeena Lee-Walker, raises some of the same issues.  Her controversy centers around her decision to teach students about a group of wrongly convicted African American males.  Their story has been a source of major news in the city.  In a lawsuit challenging her termination, Lee-Walker says that when she first proposed to teach the subject her superiors indicated she should offer a more “balanced” approach to the case.  Otherwise, she might “rile up” the students and create little "riots." At their urging, she toned down her approach, but still presented the case in a way that she said led students to be very engaged in the subject matter.  

In the eighteen months following the episode, she received a series of bad performance reviews, which led to termination based on poor evaluations and insubordination.  As emphasized here, gauging "teaching effectiveness" based on student test scores--the method NYC uses--is methodologically flawed.  Litigation challenging the state's teacher evaluation system is currently underway.  What may be interesting in Lee-Walker's case is if she can turn her teacher evaluations against the state.  Valid or not--if her statistical outputs are strong--it will undermine the city's case.  If they are weak, she may be forced to challenge the evaluation method itself.  Otherwise, the state would appear to have an objective reason for the termination.  Regardless, issues of motivation and retaliation will only further complicate the case.  Sounds like a good hypothetical for class or a final exam.

More on the backstory here.

January 11, 2016 in First Amendment | Permalink | Comments (0)

Thursday, January 7, 2016

As Equal Access and Non-Discrimination for LGBT Students Increases, So To Do Requests for Exemptions from Federal Law

The Human Rights Campaign's new report, Hidden Discrimination: Title IX Religious Exemptions Putting LGBT Students at Risk, reveals a new phenomena in education that is offsetting some of the gains praised here and elsewhere over the past year .  As discussed often in the last six months on this blog, the Office for Civil Rights at the Department of Education has taken a firm stance on protecting LGBT students from sexual harassment and ensuring transgender students have equal access to restrooms and locker rooms.  This has lead to high profile standoffs in Chicago and rural Virginia.  OCR is winning that battle.

This new report, however, reveals a more "civil" battle occurring under the radar. Religious schools are seeking exemptions from Title IX's gender non-discrimination requirements. These exemptions are explicitly authorized by Title IX, which grants exemptions for religious based schools when compliance with the Act is inconsistent with their religious beliefs.  The report finds:

  • More than half of all states (26) have at least one school that has requested an exemption; • Schools in the South have requested the most exemptions;
  • Schools that are affiliated with the Southern Baptist Convention requested the greatest number of exemptions, followed by schools affiliated with Wesleyan and Catholic churches;
  • Almost a third of schools receiving a gender identity related exemption referred to the federal government’s groundbreaking Arcadia Settlement as a primary reason for requesting an exemption;
  • 56 schools requested an exemption;
  • 33 schools received an exemption from the law as it pertains to protecting students on the basis of gender identity;
  • 23 schools also received an exemption from the law as it pertains to protecting students on the basis of sexual orientation; and
  • Schools most commonly requested exemptions from provisions of the law relating to housing, access to facilities, and athletics.

As I teach my Education Law students each spring, Title IX, maybe more than any other law with which I have dealt, is riddled with contradictions.  These contradictions are a result of Congress's unsuccessful struggle to reconcile cultural mores with gender equality.  The religious exemption, while troubling in this particular context, is the least of those contradictions.  

January 7, 2016 in Gender | Permalink | Comments (0)

Wednesday, January 6, 2016

U.S. Attorney's Office Says New York City Rampant with Schools Inaccessible for Students with Disabilities

Just before the holiday break, the U.S. Attorney for the Southern District of New York sent a letter to New  York City Schools demanding that they come into compliance with federal disability law.  The U.S. Attorney's Office had found widespread and rampant violations of the Americans with Disabilities Act that made most of the city's schools inaccessible to students with disabilities.  The letter included systemic data and individual stories, including "one family who went to extreme measures to keep their child enrolled in their zoned local school, rather than subject the child to a lengthy commute to the closest 'accessible' school. A parent of this elementary school child was forced to travel to the school multiple times a day, every school day, in order to carry her child up and down stairs to her classroom, to the cafeteria, and to other areas of the school in which classes and programs were held."  The U.S. Attorney gave the district 30 days to respond with an outline and timetable for remedying the violations.  

The letter identified the following more specific problems:

  • First, looking at the public elementary school system in its entirety, we have concluded that New York City elementary schools are not currently "readily accessible to and usable by individuals with disabilities." 28 C.F.R. §§ 35.149,35.150 & 35.151. Using the City's own figures and definition of"fully accessible" schools, only approximately 17% of public elementary schools are "fully accessible." Districts 3, 5, 8, 12, 16 and 21 do not have any "fully accessible" elementary schools. This abysmally low percentage of schools demonstrates that the City has failed to provide program accessibility to individuals with disabilities comparable to the program accessibility available to individuals without disabilities. 
  • As a result of the lack of accessible schools, students with mobility impairments are often excluded from their local zoned school, the school that their peers in their community all attend. These students may need to spend significant amounts of time traveling to a school that can accommodate their physical disabilities. Requiring elementary students with disabilities to travel extensively at the beginning and end of each school day-a condition which is not imposed upon their peers-can impose particularly onerous physical demands on these children.
  • In every school visited by our architect, we identified alterations made after January 1992 that were not compliant with the ADA. Such alterations included, but were not limited to, fire alarm systems, door hardware, toilet partitions, cafeteria seating, main office counters, library furniture, and playground areas. See Exhibit A. The City's failure to make these altered components accessible constitutes an explicit violation of the implementing regulations of the ADA. "Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or pat1 of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992." 28 C.F.R. § 35.151(b)(l).
  • Our investigation also revealed that the City has failed to undertake ongoing physical and programmatic changes to ensure that its elementary school program, when viewed in its entirety, is accessible and usable by people with disabilities. 28 C.F.R. § 35.150. In addition, the City has failed to consider requests by students with disabilities for reasonable modifications that would allow those students to attend their zoned school, 28 C.F.R. § 35.130(b)(7), including by failing to assess whether requested modifications would be reasonable in a particular case. Subsequent to the start of our investigation, the City made information regarding accessible schools easier to find on its website, implemented a complaint procedure for families encountering issues with physical accessibility, and assigned an individual to consider individual requests to make alterations at a particular school that could allow a disabled student greater access to school facilities. We appreciate the City's efforts to increase the information available to parents and to be more responsive to the needs of individuals with disabilities. However, these efforts fall far short.

January 6, 2016 in Special Education | Permalink | Comments (0)

Tuesday, January 5, 2016

Charter School Study Offers New Findings on Student Achievement, Student Enrollment, and Teachers

A new study by researchers at the University of California, Differing Effects from Diverse Charter Schools: Uneven Student Selection and Achievement Growth in Los Angeles, offers interesting and complex new findings about how charter schools differ from traditional public schools, particularly in regard to the students and teachers they attract.  Their breakthrough appears to be a function of distinguishing start-up charter schools from conversion charter schools.  This allows them a new baseline against which to make comparisons:

Their major findings include:

  • [in elementary school], conversion charters attracted pupils with considerably higher ELA and math scores, 0.34 SD and 0.32 SD higher at baseline than the respective means for TPS peers. 
  • Conversion charters served a much lower share of Latino pupils, compared with the mean TPS (55% versus 77%), and a much lower percentage of children eligible for subsidized lunches (50% versus 84%). In short, conversion charter schools fill niches in economically better-off parts of LAUSD. Differences were similar when comparing students among charter and TPS middle schools.
  • The organizational niches filled by start-up and conversion charters emerge even more vividly when turning to high schools . . . . The 28 start-up charter high schools enrolled pupils with significantly higher test scores at baseline. The mean ELA score for these students was 0.40 SD higher than TPS peers on average.
  • These sectors also varied in terms of the kinds of teachers each attracted and retained. Many conversions essentially inherited their teaching staff after winning their independent status, while gaining discretion to attract the preferred mix of new teachers in the future. Table 3, beginning with elementary schools, shows that start-up charters employed much lower shares of tenured teachers or those with full credentials, although charter elementary schools tended to employ a higher share of teachers with masters degrees, compared with TPS peers. Just 19% of elementary teachers at start-up charters Charter schools in Los Angeles had tenure at baseline, compared with 63% employed by conversion charters and 86% at TPS campuses. These differences are reflected in the mean years of teaching experience: 4.8 years for start-up teachers, and 10.0 and 12.2 years in conversion charters and TPS, respectively. Conversion elementary schools employed a higher share of White teachers and few African American teachers, compared with start-ups and TPS campuses. Sector differences were similar at the high school level. Three-fifths of all teachers were White at conversion high schools, compared with 48% at TPS and 45% at start-up campuses. The start-up charters relied more on young, less experienced teachers with masters degrees, compared with TPS or conversion charters.
  • [With the major caveat that] pupil achievement levels are not yet adjusted for prior family background or matched propensities to enter a treatment[, the study found] students who switched from a TPS elementary school into a charter middle school outperformed peers who remained in a TPS middle school. These switchers displayed advantages of 0.15 SD in ELA and 0.27 SD in math on average. The latter difference can be interpreted as modest in magnitude. Elementary students who stayed in a charter school displayed small learning advantages relative to TPS peers: 0.14 SD higher test scores in ELA on average, and 0.07 SD higher in math. These magnitudes of difference are similar to estimates for Boston charters (Abdulkadiroğlu et al., 2011; Angrist et al., 2011), based on admission lotteries (ELA, 0.08 SD; math, 0.21 SD).

These findings offer a tangled web: start-up charters, conversion charters, and traditional public schools are all distinct in the students and teachers they attract.  Conversion charters, however, seem to be best positioned to attract more advantaged students and more experienced teachers, which presumably have reciprocal effects on one another and thereby produce higher achievement in those schools.  In other words, of course some charters perform better; they draw higher performing teachers and students.


January 5, 2016 in Charters and Vouchers | Permalink | Comments (1)

Pursuing Excellence Through Diversity in Higher Education


Thomas Jefferson School of Law’s 16th Annual Women and the Law Conference, Pursuing Excellence:  Diversity in Higher Education, will be held Friday, February 5, 2016 at Thomas Jefferson School of Law in San Diego, California.

This conference brings together leading academics, educators, institutional leaders, and policy makers to examine how diversity in institutions of higher education affects and is inspired by students, faculty, and leaders. The conference will highlight a number of critically important topics including facilitating educational access for undocumented students, challenges to developing and nurturing a diverse educational environment, the importance of training students in professional programs (including medicine and law) to serve diverse populations, and challenges to affirmative action ranging from Prop 209 to the current U.S. Supreme Court case Fisher v. University of Texas

Professor Bryant Garth, Professor at UC Irvine School of Law and former Dean of Southwestern Law School and Indiana University School of Law, will deliver the Ruth Bader Ginsburg Lecture. He continues in a long line of illustrious speakers who have been honored as the Ruth Bader Ginsburg Lecturer, a lecture series Justice Ginsburg generously established for Thomas Jefferson in 2003.

Other speakers include:  Toni Atkins, Speaker of the California Assembly; Susan Bisom-Rapp, Professor of Law, Thomas Jefferson School of Law; Marisol Clark-Ibáñez, Professor of Sociology, Cal State University San Marcos; Youlonda Copeland-Morgan, Associate Vice Chancellor, Enrollment Management, UCLA; Meera E. Deo, Professor of Law, Thomas Jefferson School of Law; Adrian Gonzales, Interim Superintendent/President and  Vice President  of Student Services, Palomar Community College;  Vallera JohnsonAdministrative Law Judge; Catherine Lucey, Professor and Vice Dean for Education, UCSF School of Medicine; Mary Ann Mason, Professor of Law and Co-Director of the Center on Health, Economic, and Family Security, UC Berkeley; Linda Trinh Vo, Professor of Asian American Studies, UC Irvine;  Shirley Weber,  California Assemblywoman, Chair of the Assembly Select Committees on Higher Education and Campus Climate, former President of the San Diego Unified School District; and Susan Westerberg PragerDean, Southwestern Law School, former Dean UCLA School of Law, former Executive Director and CEO of AALS.

For additional information and registration, visit:

January 5, 2016 in Racial Integration and Diversity | Permalink | Comments (0)

Monday, January 4, 2016

Push to Deal with Segregation in New York City Schools Continues

The New York Times took up the call for integration in New York City after the Civil Rights Project released a report in 2014 finding that New York's schools were among the most segregated in the nation.  Since then, the city has passed legislation to monitor segregation in its schools and outline steps to address it.  The City also now has access to grant funds from the state, which can be used to facilitate integration.  Moving in that direction, the chancellor of the school system, Carmen Fariña, recent authorized seven city schools to establish admissions policies that would foster more diverse student bodies.  While the City is owed a lot of credit for acknowledging the problem and responding to it in some way, its steps thus far are just drops in a large bucket of segregation.  The next step is to fundamentally change the way students are assigned to schools in the city.  Two members of the City Council are proposing just that, calling for controlled choice.  Controlled choice would still allow families the opportunity to play a large role in determining where their children attend schools, but student demographics would also play a large roll.  As a result, schools formerly closed off to some families would now be open and limits would be placed on schools becoming too isolated by any single demographic factor.  Whether they can muster the political support to enact such a policy remains to be seen, yet two years ago, I never imagined the City would even be having the conversation.  

For more on the proposal, see here.

January 4, 2016 in Racial Integration and Diversity | Permalink | Comments (0)