Thursday, March 31, 2016
By taking a [c]abinet post . . ., I gained power to effect change, but I also traded the relative independence and security of a judge for a very different set of legal and political restraints. I can no more rewrite the federal role in education to advance women's rights than I could make up statutes [when I was] a judge.
Julie Mead and Maria Lewis have published a new study in the American Educational Research Journal titled The Implications of the Use of Parental Choice as a Legal “Circuit Breaker.” The article explores laws "that result in taxpayer subsidies to religious education, perpetuate racially identifiable schools, provide public single-sex schools, and allow instances where children with disabilities do not receive needed special education and related services." They examine the United States Supreme Court's reliance on parental choice as a "circuit breaker" that permits what would otherwise be unconstitutional state action. Their abstract states:
This study explores four instances where parental choice has been employed as a legal “circuit breaker”: (a) First Amendment Establishment Clause cases related to public funding, (b) Fourteenth Amendment Equal Protection cases regarding race-conscious student assignment, (c) Title IX regulations concerning single-sex education, and (d) a provision of the Individuals with Disabilities Education Act (IDEA) related to parental refusal to consent to initial special education services. In each example, while the end result would not be legally permitted if directed by some governmental decision maker, the presence of parental choice produces a permissible indirect path to the same policy outcome. This study traces the legal underpinnings of each example and discusses their implications for policymakers and practitioners.
The paper concludes that in each of these examples,
a new legal boundary that hinged on the relevance of parental choice in legal analysis was set with respect to permissive educational policies. As this examination shows, those shifting boundaries both free policymakers in some instances (e.g., the creation of private school vouchers; single-sex education) and constrain them in others (e.g., race-conscious policies to further integration, challenging parents’ refusal to permit special education).
Analysis of these instances of circuit breaker logic also raises important public policy questions that illustrate the implications of these legal boundary shifts and the importance of understanding them. Will continuing or increasing use of parental choice as a legal circuit breaker alter the value traditionally placed on equal educational opportunity? Will continuing or increasing use of parental choice as a legal circuit breaker result in situations in which parents’ rights and children’s rights are in tension with each other? Will continuing or increasing use of parental choice as a legal circuit breaker modify the principle of parens patriae as applied to education? In short, the use of parental choice as a legal circuit breaker raises questions about the values held dear by a society and the role public education plays in that society (Goodlad & McMannon, 1997; Minnow, 2010; Ravitch, 2010; Superfine, 2013). Whether the uses of parental choice as a legal circuit breaker outlined here signal a shift in those values remains to be seen. What is clear is that the application of the circuit breaker metaphor bears watching by all with an interest in education.
Wednesday, March 30, 2016
Education Law Prof Blog co-editor Derek Black (South Carolina) has posted Reforming School Discipline (Northwestern University Law Review, forthcoming) on ssrn this week. (March 30, 2016). In his article, Professor Black proposes a novel legal framework to connect school discipline reform efforts to the affirmative education rights and duties found in state constitutions. Below is the abstract:
Public schools suspend millions of students each year, but only five percent of suspensions are for serious misbehavior. School leaders argue that these suspensions ensure an orderly educational environment for those students who remain. Social science demonstrates the opposite. The practice of regularly suspending students negatively affects misbehaving students as well as innocent bystanders. All things being equal, schools that manage student behavior through means other than suspension produce the highest achieving students. In this respect, the quality of education a school provides is closely connected to its discipline policies.
Drawing on the connection between discipline and educational quality, this article pits harsh discipline as the enemy of good schools and debunks the narrative of bad students as the enemy of good ones. It also argues that this evidence, combined with the affirmative education rights and duties found in state constitutions, can be used to demand that states substantively reform discipline.
First, because students have a constitutionally protected individual right to education, suspensions and expulsions should trigger heightened scrutiny. Heightened scrutiny would not bar suspensions, but it would force states to justify the efficacy of suspension. The practical result would be to prompt states to adopt pedagogical sound approaches to student misbehavior. Second, discipline practices that undermine educational quality violate states’ constitutional obligation to provide equal and adequate educational opportunities to all students. In these instances, state constitutions should obligate states to intervene with reform.
A link to the full article can be found here.
The Southern Education Foundation has released a new report on private schools, race, and their rapid growth of vouchers in recent years. The report demonstrates that new programs are concentrated in the South. It also notes that there have been increased efforts at the federal level to use federal funds for vouchers. Those efforts have only failed by narrow margins. The point of the report is to signal the segregative threat that the expansion of these programs may pose.
In 2012, for instance, African American students were 15.8% of the public school population, but only 9.2% of the private school population. Conversely, whites were 51.7% of the public school population but 72.1% of the private school population. One might simply write this off to socio-economic disparities, but the report emphasizes that private schools in the south have historically been a reaction to integration and that over the past fifty years, the South's share of the nation's private school population has risen from less than 15% to over 30%. And when we look at the demographics of private schools in southern states, the disparities between public and private schools is even more shocking.
In Mississippi, whites were a slim majority in public schools in 1998, but were 90.8% of the private school population. In South Carolina, whites were 58.7% of the public school population, but 90.1% of the private school population. The most telling data point, however, was the variation among states. While the gap between white enrollment in public and private schools was significant in all but one southern state, the gap itself seemed to be a reflection of the how large the white majority was in public schools. The higher the percentage of whites in public schools, the lower their percentage in private schools. In other words, where whites were a stronger majority in public schools, there seemed to be less incentive to enroll in private school. Similar trends existed in 2012, although not as obvious. The report also includes similar data analysis for Hispanic and Asian students.
The report also focused on individual schools and what it calls virtual segregation:
The third measurement of this study examines more deeply patterns of over- and under-representation of students by race and ethnicity within each school in 2012 by identifying the private schools in the 50 states where white students comprise 90 to 100 percent of total enrollment. These rates and patterns are compared with the numbers for virtual segregated public schools in the states and regions.
In 2012, white students were far more likely to be educated in virtual segregation in private schools than in public schools. Forty-three percent of the nation’s private school students attended virtually all-white schools in contrast to 26.9 percent of public school students. Among the 50 states, South Carolina’s private schools had the largest disparity in segregated education between private and public schools: 63 percent of white students in private schools in South Carolina in 2012 were taught in segregated schools in comparison with only five percent of the state’s public school students. Mississippi had almost as large a gap – a difference of 56 percentage points. Seventy-one percent of white students in Mississippi private schools attended segregated schools, while 15 percent of the public schools’ white students were attending segregated schools.
It also identified virtual exclusion:
The final measurement quantifying and comparing racial and ethnic patterns in private schools identifies the numbers of white students attending schools with only 10 percent or less of under-represented students of color – African American, Hispanic, and Native American students combined. In one sense, virtual segregation can be understood as a measure of the extent white students are extremely “packed” into schools, and virtual exclusion as a measure of the extent under-represented students of color are extremely absent or excluded from school enrollment. The analysis also compares rates of virtual exclusion between private and public schools by state and region.
Nearly two-thirds of white students attending private schools across the 50 states were in schools that virtually excluded African American, Hispanic, and Native American students. The rate was 41 percent in public schools. Racial exclusion in South Carolina’s private schools exceeded the rate among its public schools by the largest margin among the 50 states. Eighty-four percent of the white students in South Carolina’s private schools were in racially exclusionary schools in 2012. This rate compared to 11 percent in the state’s public schools – creating a private school disparity of 73 percentage points. Private schools in Delaware had the nation’s second largest disparity in exclusionary schooling: 72 percent of all white students in Delaware’s private schools were in virtually exclusionary schoolhouses, but only four percent of the state’s public schools’ white students were in such schools.
Seven of the ten states with the largest measures of racial exclusion in private schools were in the South. Six of those seven states were the Deep South’s “freedom of choice” states. The percentage of white students in private schools in the 15-state South exceeded the percentage in the public schools by 37 percentage points – close to twice the disparity in racially exclusionary schools for white students elsewhere in the nation in 2012.
Get the full report here.
The extremely high rates of school discipline and referrals to the juvenile justice system by school officials, along with racial disparities in both, are well documented. The social science consensus is that harsh discipline and a heavy police presence in school are counterproductive. Schools would be far better served to adopt positive behavioral supports and restorative justice models, both of which would include more dispute resolution and counseling. That is what makes new data gathered by The74 so disturbing.
The news outlet gathered data on the nations largest school districts and found that four out of ten were had more security staff than counselors. In fact, New York City and Chicago had about twice as much security staff as counselors. Miami Dade had nearly three times as much security staff. Get the full story and data here.
Tuesday, March 29, 2016
Yesterday, plaintiffs sued North Carolina Governor Pat McCrory, challenging the constitutionality of a newly-enacted House Bill 2 that prohibits cities and counties from adopting their own anti-discrimination ordinances and instead established a state anti-discrimination that does not include transgender persons as a protected class. In the complaint, Carcaño v. McCrory, the plaintiffs allege that H.B. 2 violates the Equal Protection and Due Process clauses because it discriminates on the basis of sex and sexual orientation and is an invasion of privacy for transgender people. The plaintiffs further allege that the law violates Title IX by discriminating against students and school employees on the basis of sex by requiring transgender persons to use bathrooms by the gender on their birth certificates, rather than their gender identity. The lawsuit was filed in the U.S. District Court for the Middle District of North Carolina, with the ACLU, Lambda Legal, and the ACLU of North Carolina representing the plaintiffs. Today, North Carolina Attorney General Roy Cooper announced that his office will not defend the constitutionality of H.B. 2. Cooper has opposed the state's efforts in other anti-LGBT measures such as the state's same-sex marriage provisions, saying last month that the state "has gone off the tracks." The ACLU of North Carolina applauded Cooper's stance that House Bill 2, saying in a statement that the law is "not only incompatible with the state's constitutional and legal obligations but also our shared values as North Carolinians. We’re grateful the Attorney General stands on the on the right side of history with the many cities, states, businesses and individuals who have come out against this harmful measure." The complaint is here.
The Education Law Center issued this press release yesterday:
Education Law Center today sent a request to Commissioner of Education David Hespe and Schools Development Authority (SDA) CEO Charles McKenna for their respective agencies to immediately assess the elevated lead levels found in dozens of schools in the State-operated Newark Public Schools (NPS) and to fund and undertake any emergent repair projects to water supply systems necessary to eliminate this hazardous condition.
The ELC letter underscores the elevated levels of lead recently found in drinking water in NPS schools and the fact that this constitutes “a condition that, if not corrected on an expedited basis, would render a building or facility so potentially injurious or hazardous that it causes an imminent peril to the health and safety of students or staff.”
As the letter notes, the NJ Department of Education (DOE) and the SDA are mandated by NJ Supreme Court rulings in the Abbott v. Burke litigation and the state school construction law to fund, undertake and complete all repair projects to school buildings in NPS when faced with conditions that pose an imminent threat to health and safety. Put simply, DOE and SDA have a constitutional and statutory obligation to act to remedy any potential harm to the health and safety of school children discovered in NPS facilities.
ELC’s letter requests that DOE and SDA immediately initiate a Potential Emergent Projects (PEP) program to assess the extent of the lead contamination problem in all Newark schools, the building repairs that are needed, and the cost of such repairs, and to establish a schedule for undertaking and completing all repairs to alleviate the problem.
“Given the serious harm from ingesting lead, the Christie Administration must act, and act now, to protect Newark school children from exposure,” said David Sciarra, ELC Executive Director. “The DOE and SDA are legally obligated to fund and undertake all building repairs, on an emergent basis, to ensure the health and well-being of children attending NPS schools.”
ELC has also notified State District Superintendent Christopher Cerf so that NPS officials can facilitate the SDA and DOE effort. ELC also informed Mayor Ras Baraka and State Legislators representing Newark so that they can assist in holding SDA and DOE accountable for meeting their obligations to NPS children.
Policy and Outreach Director
973-624-1815, x 24
Matthew Bruckner has posted his new paper, Bankrupting Higher Education, to ssrn. He offers this abstract:
Many colleges and universities are in financial distress but lack an essential tool for responding to financial distress used by for-profit businesses: bankruptcy reorganization. This Article makes two primary contributions to the nascent literature on college bankruptcies by, first, unpacking the differences among the three primary governance structures of institutions of higher education, and, second, by considering the implications of those differences for determining whether and under what circumstances institutions of higher education should be allowed to reorganize in bankruptcy. This Article concludes that bankruptcy reorganization is the most necessary for for-profit colleges and least necessary for public colleges, but ultimately concludes that all colleges be allowed to reorganize in chapter 11.
Monday, March 28, 2016
One of Nation's Most Successful Districts Acknowledges Shortfalls in Diversity and Inequality, Makes Plans to Consider Reforms
Earlier this month, Montgomery County Public Schools in Maryland released a study of their school choice and special programs. Montgomery County has long had one of the nation's strongest public schools. Included in its strength has been its commitment to diversity and equal access. Like most, its implementation is rarely perfect, but this new report and its response to it indicate it is continuing to strive to do better. The report acknowledges that its current policies have not resulted in the integration and diversity the district seeks. In fact, it names of some hot-button policies and targets them for reform: admissions criteria to special programs, sibling preferences, and feeder patterns. Among the most poignant findings and recommendations are:
- Key Finding 2: Information and communications about MCPS’s wide variety of choice and special academic programs are not filtering to all segments of the community equally, which is impacting equity of access to the programs. MCPS has developed and implemented a wide variety of communication tools to share information about the programs with parents and community members. These include printed materials that are mailed to MCPS households in seven languages; information on the district’s website and PTA listservs and webpages; informational meetings at local schools in English and Spanish; program-level Open Houses; and outreach through school-based counselors, staff, and principals. Despite these efforts, data on program applications and from focus groups indicate that information about these programs is not reaching some segments of the community, namely Hispanic/Latino, Black/African American, non-English-speaking, and low-income families as well as they are to other groups. . . .
- Recommendation . . .: Develop and implement new strategies for communicating, outreach, recruitment, and sharing information with underrepresented or hard-to-reach families within MCPS. These strategies should include, but not be limited to: Streamlined communications in easily-understood language; Revision of existing communication tools for cultural validity; Outreach to families at community events or locations; More opportunities for one-on-one or in-person communications with and recruitment of families; and Additional materials and events held in languages other than English.
- Key Finding 3: There are significant racial and socioeconomic disparities in the enrollment and acceptance rates to academically selective programs, which suggest a need to revise the criteria and process used to select students for these programs to eliminate barriers to access for highly able students of all backgrounds. Data on applications and acceptances to elementary centers and secondary magnet and application programs show that Hispanic/Latino, Black/African American, Limited English Proficient (LEP), special education, and low-income students are less likely than White, Asian, and higher income students to be selected and enroll in these programs. As a result, Hispanic/Latino, Black/African American, LEP, special education, vi and low-income students are underrepresented in academically selective programs when compared with districtwide enrollment data. These data are found despite direct efforts by MCPS to increase representation of all groups in the elementary centers and the secondary magnet and application programs. The district utilizes multiple indicators in the selection process that include, in addition to cognitive assessments, teacher recommendations and other school-based input, report card grades, unique student profiles, demographic data such as eligibility for free and reduced-price meals (FARMS), and the lack of an intellectual peer group at the home school. Yet, the lack of diversity and underrepresentation of some student subgroups in these programs suggests that the process may rely too heavily on one or more indicators or may need to consider additional measures of student ability. These indicators may include broadening the definition of gifted to include noncognitive measures such as motivation and persistence, using group-specific norms that benchmark student performance against school peers with comparable backgrounds, offering automatic admissions for students in the top 5-10% of sending elementary or middle schools in the district, or using other methods that are outlined in the report and utilized in other districts across the country. Furthermore, these data also suggest that the district should use additional programs or tools, such as expanding the existing MCPS’s Young Scholars Program to identify students from underrepresented groups in early grade levels for academically selective programs. These programs would serve to increase the applicant pool of underrepresented students and encourage greater levels of participation.
- Recommendation 3a: Implement modifications to the selection process used for academically competitive programs in MCPS, comprising elementary centers for highly gifted students and secondary magnet programs, to focus these programs on selecting equitably from among those applicants that demonstrate a capacity to thrive in the program, that include use of non-cognitive criteria, group-specific norms that benchmark student performance against school peers with comparable backgrounds, and/or a process that offers automatic admissions to the programs for students in the top 5-10% of sending elementary or middle schools in the district.
- Recommendation 3b: Invest resources to expand and enhance early talent development programs for students of underrepresented groups in order to bolster participation of a broader segment of the MCPS student population in academically selective programs.
- Key Finding 4: The district’s implementation of some provisions in the current Board Policy JEE, Student Transfers, does not fully align with MCPS’s goal to provide equitable access to choice and special academic programs. Specifically, the Board’s current Policy includes two provisions that have been implemented in ways that do not fully support equitable access: 1) currently students are automatically admitted to an elementary language immersion program if they have an older sibling who currently attends the program; and 2) students who attend a vii particular middle school may continue in that school’s feeder pattern high school, without regard to programmatic reasons. . . .
- Recommendation 4a: Consider revisions to Policy JEE, Student Transfers, to clarify that the sibling link for immersion and other choice programs is not automatic; while siblings of applicants should be able to attend the same school where the special academic program is located provided that there are available seats, those siblings should be required to participate in the application process, such as the lottery for immersion programs to earn a seat in the program.
- Recommendation 4b: To the extent that the district considers revisions to Policy JEE, Student Transfers, to alter the automatic articulation from middle school to high school within the cluster feeder pattern or consider approvals for programmatic requests, MCPS should analyze the impact on both school capacity and its efforts to promote diversity and avoid racial isolation.
- Key Finding 5: The placement of special academic programs within local schools has increased the diversity of those schools’ student populations; but, in the absence of targeted mechanisms to integrate the program participants and non-participants, it has created conditions of within-school separation. . .
Friday, March 25, 2016
The 21st Century Schools Fund, U.S. Green Building Council, and the National Council on School Facilities have released their 2016 report on the state of the facilities in our nation's public schools. The report finds that we should be spending $145 Billion Per Year to meet the maintenance and expansion needs of our schools.
Using industry standards adapted to K–12 public school facilities, we estimate that the nation should be spending about $145 billion per year to maintain, operate, and renew facilities so that they provide healthy and safe 21st century learning environments for all children. Applying a 3 percent of current replacement value (CRV) standard for M&O, districts need to spend $58 billion annually to maintain and operate the 2014 inventory of public school facilities so they are clean and in good working order. On the capital side, the nation should be spending an estimated $77 billion per year (4 percent of CRV) to regularly upgrade existing facilities’ systems, components, ﬁxtures, equipment, and ﬁnishes as they reach the end of their anticipated life expectancy; systematically reduce the backlog of deferred maintenance that has accumulated; and alter existing facilities to respond to changing educational requirements. In addition, projections suggest at least another $10 billion per year is needed for new construction to accommodate growing enrollments over the coming decade. That brings the total annual facilities requirements to $145 billion per year.
Unfortunately, states are currently spending $46 billion less per year than these projected requirements.
The nation’s current system of facilities funding leaves school districts unprepared to provide adequate and equitable school facilities. Comparing historic spending against building industry and best-practice standards for responsible facilities stewardship, we estimate that national spending falls short by about $8 billion for M&O and $38 billion for capital construction. In total, the nation is underspending on school facilities by $46 billion — an annual shortfall of 32 percent. Gaps vary by state and local district, depending on investments by local communities and the structure of school facilities funding at the state level. Nevertheless, investment levels in all states but three will not meet the standards.
Thursday, March 24, 2016
North Carolina Blocks Transgender Persons' Access To Public Facilities That Reflect Their Gender Identities
The state legislative trend continues to require transgender persons to use public facilities that align with the biological gender on their birth certificates rather than their gender identity. We've noted several state legislative efforts in this direction, most recently about Tennessee's law creating a lock-in exclusion for transgender students because another state law prohibited the state from recognizing sex changes on birth certificates. Yesterday, North Carolina Governor Pat McCrory signed the Public Facilities Privacy & Security Act (H.B. 2), which requires that multiple-occupancy bathrooms and locker rooms in public schools and government buildings be used by persons only according to their biological sex. The new law also blocks local governments from enacting ordinances to allow transgender people to use public bathrooms that match their gender identities -- targeting Charlotte's anti-discrimination ordinance passed last month that allowed people to choose restrooms corresponding to their gender identity. When the Charlotte ordinance was passed, Gov. McCrory commented that the law was a threat to public safety, so the swift response by the N.C. General Assembly was expected. Responding to H.B. 2's passage, Chris Brook, Legal Director of the ACLU of North Carolina, stated on the ACLU website, "We are disappointed that Governor McCrory did not do right by North Carolina’s families, communities, and businesses by vetoing this horribly discriminatory bill, but this will not be the last word." More on the new law here.
The past week has produced a spat of stories about the potential redrawing of school attendance boundaries in Loudon County Virginia, which rests in the exurbs of Washington, DC and in recent years has ranked as the wealthiest county in the nation. Despite its wealth, Loudon has pockets of poverty. One is a largely Hispanic neighborhood. The neighborhood, however, is relatively small and, for the past several years, Loudon has assigned students from that neighborhood to several different elementary schools. The purpose and effect has been to deconcentrate poverty there and increase diversity elsewhere--exactly what decades of social science would implore districts to do. Now Loudon is considering a plan to redraw attendance zones and assign all of those low-income Hispanic students to one of two elementary schools. It would, as a result, create two new high poverty schools, where none previously existed, and eliminate economically diverse schools, where they previously existed.
The troubling question is why? According to reports by the Washington Post, the district offers two rationales. First, the new high poverty schools would qualify for more federal resources. Second, teachers would be better able to focus on the special needs of disadvantaged students.“When you have students that have common needs, you can direct your instructional methods in that manner and you have more resources because you have more students with that particular need,” said school board member Jill Turgeon, who is also a former teacher in the district. “When we’re balancing demographics . . . to me we’re watering down the focus we need to have on the students.” Likewise, by removing students with special needs from diverse schools, teachers can better serve the needs of students from wealthier neighborhoods. “I think there are a lot of benefits in allowing a natural grouping of the students according to their neighborhood,” school Turgeon.
Tuesday, March 22, 2016
Finding Common Ground Across Race and Religion: Judicial Conceptions of Political Community in Public Schools
Stuart Chinn (Oregon) has posted Finding Common Ground Across Race and Religion: Judicial Conceptions of Political Community in Public Schools (March 16, 2016), Utah Law Review, Forthcoming) on ssrn. In the article Professor Chinn analyzes Supreme Court cases on race-and-public education and religion/ideology-and-public education to explore how do we construct and maintain a stable political community characterized by intractable difference? From the abstract:
Elementary and secondary public schools constitute perhaps the most direct point of contact between most American children and the state. Thus, these institutions have great opportunity for shaping future participants in the American political community and for imparting the particular values that will help constitute that community. Relatedly, my focus on judicial conceptions of political community in the public school context provides the key attraction of hearing discussion of these themes by major national political actors within the illuminating format of principle-based judicial opinions. In the article, I make three primary claims. The first is a point of similarity across the racial and religious/ideological contexts. I will claim that judges have seen public schools as a cultural adhesive force. That is, the precise manner in which public schools bind students together is by virtue of the physical proximity of students to one another, and their observation in, participation in, and creation of a common culture. However, this doctrinal comparison yields a key difference too, and this constitutes my second claim: in the race-and-public education context, the central problem that has appeared in the doctrine — and the main problem that has animated judicial conceptions of community in that context — has been the problem of community creation. That is, judges have largely pondered the justifications and limits upon the state’s authority to create racial plurality in public schools. Such arguments proceed from background assumptions of minimal racial plurality absent the contemplated state actions. In contrast, in the religion/ideology-and-public education context, the major cases and judicial arguments on plurality within public schools are preoccupied with the problems of community maintenance. That is, judges have pondered the justifications and limits upon state actions toward maintaining stable communities in public schools in the face of individual claims of religious freedom and competing state claims favoring uniformity. In contrast to the racial context, the background presumption here is one of inevitable religious/ideological plurality in public schools, even absent the contemplated state actions.
Finally, I offer a third and final claim: for community-builders, maintenance problems are easier than creation problems. This point, in turn, suggests that while plurality may be inevitable, plurality within a communal structure holds greater hope for lines of division to be overcome. This is due to the potential for the culture intrinsic to a community to serve as an adhesive across lines of division. Thus to the extent that one finds the goals of community and unity to be worthwhile, at least some of the time, this observation implies that mechanisms that situate plurality within community are often preferable to letting plurality persist between distinct communities.
Handcuffing a Third Grader? Interactions Between School Resource Officers and Students with Disabilities
Elizabeth Shaver has posted Handcuffing a Third Grader? Interactions Between School Resource Officers and Students with Disabilities (March 18, 2016), Utah Law Review, 2017 on ssrn. From the abstract:
After an eight-year old boy with disabilities refused to sit down, a School Resource Officer (SRO) handcuffed the boy's elbows behind his back, restraining the child for fifteen minutes. A video of the incident made national headlines. Thereafter, the boy, along with another child with disabilities who had experienced similar treatment, filed suit. Cases like this highlight the complex issues that arise when a student with disabilities engages in undesired behavior at school and that behavior leads to the intervention of an SRO. This article examines those issues and offers recommendations. It begins by providing a background about SROs, focusing on their training and responsibilities. Next, the article reviews the provisions of the Individuals with Disabilities Education Act (IDEA) that pertain to the use of behavioral interventions to address undesired behavior of students with disabilities. The article then provides a legal analysis of lawsuits brought by students against SROs. These cases reveal the need for a comprehensive training program for SROs, clear delineation of the scope of - and limitations on - the SRO's duties, and strict adherence by both school personnel and the SRO to their respective roles. Therefore, the article offers recommendations that involve a variety of stakeholders, including school administrators, teachers, SROs, and parents of students with disabilities.
Monday, March 21, 2016
Securing legal representation is critical for private enforcement of constitutional and statutory rights, and thus rulings that restrict attorneys' fees in such cases will impact rights enforcement. The Fifth Circuit recently released a decision holding that obtaining a stay-put order under the Individuals with Disabilities Education Act (IDEA) is not sufficient to qualify a litigant as a “prevailing party" who is entitled to attorneys' fees. The Fifth Circuit now joins the Third and Seventh Circuits in holding that stay-put orders are interim in nature and because such orders do not address the merits, they do not entitle plaintiffs to attorney fee awards. In the case, Tina M. v. St. Tammany Parish School Board, the plaintiff's son, S.M., a student with a disability under the IDEA, was involved in an off-campus incident that prompted his school to propose an Individualized Education Program in which S.M. would receive at-home tutoring. S. M.’s mother disagreed with this proposal and refused to consent to the IEP change. At a due process proceeding, the Administrative Law Judge granted a stay-put order for S.M. to remain in school pending a decision on the merits. After that order, the parties reached a settlement through mediation, and the plaintiffs moved to terminate the pending administrative hearing on the merits. The ALJ terminated the matter and never reached the merits of the plaintiffs’ claims. The plaintiffs then sought attorneys' fees in the Eastern District of Louisiana under the IDEA's fee shifting provision, 20 U.S.C. § 1415(i)(3). Analogizing the ALJ's stay-put order to a successful preliminary injunction, the district court found that the plaintiffs were the prevailing party for purposes of obtaining attorneys’ fees under the IDEA. The Fifth Circuit reversed. Under section 1415(j) of the IDEA, the circuit court noted, a court deciding a stay-put request simply determines a child’s placement and enters an order maintaining that placement. The IDEA requires an automatic stay in such cases with no merits component to the finding, unlike a preliminary injunction. The stay-put order also did not permanently alter the legal relationship of the parties so that the plaintiffs could be found to have prevailed. “Rather,” the court stated, “it merely provided that S. M. could continue with his prior educational program until a decision on the merits was made.” While the court nodded to the importance of maintaining a child’s placement during due process proceedings, the interim relief of the stay-put order was not merits-based, and thus ineligible for attorneys’ fees. The case can be found at Tina M. v. St. Tammany Parish School Board, No. 1530220 (5th Cir. Feb. 23, 2015).
The Obama Administration has taken consistent and progressive steps to protect the rights of LGBTQ youth, including policy guidance and most recently filing a brief in favor of Gavin Grimm in his Fourth Circuit appeal seeking equal access to facilities at his school. But as these progressive steps occur at the federal level, some states are attempting to move backward. Earlier this month, I posted on a Tennessee School District that would rather eliminate all extracurricular activities than allow the Gay-Straight Alliance to form in its schools. Now that way of thinking as edged up the road to the state house. This time, however, the policy is even more pernicious and not just about extra-curricular activities, and not just about elementary and secondary schools. Tennessee is considering legislation that permanently exclude transgender students from bathrooms and locker rooms at its public schools and its colleges and universities. The legislation would require students to use facilities that match the sex “indicated on the student’s original birth certificate.” The full text provides:
SECTION 1. Tennessee Code Annotated, Title 49, Chapter 2, Part 1, is amended by adding the following language as a new section: Public schools shall require that a student use student restroom and locker room facilities that are assigned for use by persons of the same sex as the sex indicated on the student’s original birth certificate.
SECTION 2. Tennessee Code Annotated, Title 49, Chapter 7, Part 1, is amended by adding the following language as a new section: Public institutions of higher education shall require that a student use the restroom and locker room facilities that are assigned for use by persons of the same sex as the sex indicated on the student’s original birth certificate.
SECTION 3. This act shall take effect upon becoming a law, the public welfare requiring it.
As Tennessee law currently stands, this new legislation would lock-in exclusion for transgender students because another state law prohibits the state from recognizing sex changes on birth certificates. As many recall, South Dakota passed similar legislation recently, but the governor there vetoed it.
Professor R. George Wright, Indiana University Robert H. McKinney School of Law, has posted a new article to ssrn titled Campus Speech and the Functions of the University. His offers this description in his abstract:
The roles and limits of free speech on university campuses have lately been of increasing interest. This Article suggests that as long as our understandings of the basic functions of the university itself are conflicting and contested, our understandings of the proper scope of free speech on campus will be similarly irreconcilable, even if we think of the university in terms of community. The Article explores this thesis through considering, in particular, problems of hostile speech, of professorial academic freedom, and of speech by students transitioning into professional service roles.
Friday, March 18, 2016
The Southern Poverty Law Center issued this press release earlier this week:
Alabama's funding of public education gets mostly low marks in the recently released fifth edition of Is School Funding Fair? A National Report Card. The state's unfair distribution of funds and failure to fund at a level sufficient to support its public schools earns Alabama poor marks when compared to other states in its region, and beyond.
"If Alabama wants to ensure every child receives a quality education, it must adequately fund its schools," said Rhonda Brownstein, legal director of the Southern Poverty Law Center. "This report card confirms findings from an earlier report commissioned by the Alabama State Department of Education that clearly shows the state is failing its students -- particularly its most vulnerable students living in impoverished communities."
The National Report Card (NRC), issued annually by the Education Law Center (ELC) and Rutgers University, evaluates states on four separate, but interrelated, "fairness indicators" -- funding distribution, funding level, state fiscal "effort," and public school "coverage." The NRC provides the most in-depth analysis to date of state public education finance and school funding fairness.
Alabama receives an F in the important funding distribution indicator, which measures the extent to which a state's funding system is structured to recognize the additional resources required for students in a setting of concentrated student poverty. In Alabama, the pattern is actually regressive with higher poverty districts receiving, on average, only about 90 cents for each dollar their more well-to-do counterparts receive. Such a skewed funding system thwarts efforts to improve achievement and narrow achievement gaps.
Also, the state's overall funding level is well below average, ranking 38 out of 49, even though the National Report Card (NRC) adjusts for regional wages, economies of scale, and other factors. Alabama's average state and local revenue per pupil in 2013 was $7,670, over two thousand dollars below the national average of $9,766 per pupil.
On a brighter note, Alabama receives a B on its effort to invest in its schools. Effort is based on the percentage of the state's Gross Domestic Product (GDP) allocated to education. The state's funding system devotes a good share of its relatively low economic capacity to its public schools. Nonetheless, the state's effort dropped 14% after the 2008 great recession set in and has not recovered.
Finally, Alabama is below average on "coverage," which examines the share of school-aged children who attend public schools and compares the median household income of those children with the income levels of families who do not use public schools. While about 13% of Alabama school children attend nonpublic schools, the income disparity between public and nonpublic school households is high, with nonpublic households earning more than one and a half times the earnings of public school households, on average.
"This report provides policymakers, legislators, and concerned citizens with the information they need to assess their state's commitment to fair school funding and to advocate for improvements in the many states where that is absolutely necessary," said Dr. Bruce Baker of Rutgers University Graduate School of Education, a co-author of the National Report Card.
"The State's continuing failure to fairly fund public education deprives Alabama students of the teachers, support staff and other resources necessary for a high quality education," said David G. Sciarra, Executive Director of the Education Law Center and a co-author of the National Report Card. "We hope the NRC results will serve as a wake-up call for lawmakers to put school funding reform at the top of the education agenda."
First issued in 2010, the National Report Card is built on the principle that predictable, stable and equitable state systems of school funding are the essential precondition for the delivery of a quality educational opportunity. Without this foundation, efforts to improve the nation's schools will be less productive and unsustainable. To improve on the condition and performance of schools, states need to implement systems that provide sufficient funding that is fairly distributed to account for the needs of students, which are higher for low-income students, English language learners, and students with disabilities.
Is School Funding Fair? A National Report Card is coauthored by Dr. Bruce Baker of the Rutgers Graduate School of Education; David Sciarra, Esq., Executive Director of the Education Law Center (ELC); Dr. Danielle Farrie, ELC Research Director; and Theresa Luhm, Esq., ELC Managing Director. Please visit www.schoolfundingfairness.org for the complete report.
Thursday, March 17, 2016
UCLA Civil Rights Project: Charter Schools, Civil Rights and School Discipline: A Comprehensive Review
Amid suspicions that some charter schools' policies serve to cull students for minor discipline problems comes a report this week that charter schools still are suspending black students at significantly higher rates than white students and suspending students with disabilities at two to three times the rate of nondisabled students. The study, Charter Schools, Civil Rights and School Discipline: A Comprehensive Review, was released by UCLA's Civil Rights Project and interprets federal data from 5,250 charter schools on out-of-school suspension rates. Among the findings:
- In the 2011-12 school year, 374 charter schools suspended 25% of their enrolled student body at least once.
- Nearly half of all Black secondary charter school students attended one of the 270 charter schools that was hyper-segregated (80% Black) and where the aggregate Black suspension rate was 25%.
- More than 500 charter schools suspended Black charter students at a rate that was at least 10 percentage points higher than the rate for White charter students.
- 1,093 charter schools suspended students with disabilities at a rate that was 10 or more percentage points higher than for students without disabilities.
- 235 charter schools suspended more than 50% of their enrolled students with disabilities.
The report also notes that "lower-suspending charter schools are more numerous than high-suspending charters," suggesting that those school may be using "effective non-punitive approaches to school discipline [that] could help close the pipeline." Daniel J. Losen, the director of the Center for Civil Rights Remedies, told the New York Times that "the report should not be used to generalize about all charter school discipline, because there were also schools that did not suspend students at high rates." The full report, written by Daniel J. Losen, Michael A. Keith II, Cheri L. Hodson, and Tia E. Martinez, is accessible here.
Yesterday, the Education Law Center released the fifth edition of its national school funding fairness analysis (authored by Bruce Baker, Danielle Farrie, Theresa Luhm and David G. Sciarra). Two states jumped out at me in this report: North Carolina and Nevada. Last year, Nevada's unequal distribution of funding was eye-popping. Districts serving high need student populations were funded at less than half the level of districts serving wealthier students. This year, Nevada is still doing a poor job, ranking last in the nation in funding distribution, but significantly decreased the disparity. It now funds high need districts at 71% of their counterparts. North Carolina, likewise, was atrocious on several measures and still is this year on some, but the funding distribution in the state is looking much better. The state is now funding high need districts at 112% of low-poverty districts--not an excellent number but still a progressive one.
Maybe the most distressing data to me is the continuing low levels of fiscal effort being exerted to fund education. Based on the last year studied, only seven states increased their fiscal effort over the prior year (from 2012 to 2013). Only four state were exerting more effort than they were at the beginning of the recession. In other words, states are still in a hangover from the Recession. Tax revenues rebounded to pre-recession levels about three or four years ago, but states have not replenished education budgets. As I argue in Averting Educational Crises, the length and depth of this continuing hangover threatens the quality of education an entire generation of students will receive. Courts failure to intervene also threatens to undermine the constitutional right to education, which will jeopardize education for future generations as well.
The funding fairness report offers this summary of major findings:
- School funding levels continue to be characterized by wide disparities among states, ranging from a high of $17,331 per pupil in Alaska to a low of $5,746 in Idaho.
- Many of the lowest funded states, such as Arizona, California, Idaho, Nevada, North Carolina and Texas, allocate a very low percentage of their states’ economic capacity to fund public education.
- Fourteen states, including Nevada, North Dakota and Illinois, are regressive, providing less funding to school districts with higher concentrations of low‐income students.
- Only a handful of states ‐ Delaware, Massachusetts, Minnesota, New Jersey and Ohio ‐ have generally high funding levels and also provide significantly more funding to districts where student poverty is highest.
- Low rankings on school funding fairness correlate to poor state performance on key resource indicators, including less access to early childhood education, non‐ competitive wages for teachers, and higher teacher‐to‐pupil ratios.
Get the full report here.
This year the authors also issued a supplementary report that dug beneath the state level figures and identified the nation's most disadvantaged districts. That report includes these major findings:
- Almost 1.5 million children are educated in 47 disadvantaged school districts across 16 states.
- Reading and Allentown, PA face the nation’s most extreme disadvantage, with nearly 2.5 times area poverty rates and less than 80 percent of the average state and local revenue per pupil.
- Chicago and Philadelphia are, year after year, the two most fiscally disadvantaged large urban districts in the nation.
- Many of the most disadvantaged districts are in states with regressive funding systems, such as IL, PA and TX, but they also exist in states with both flat funding systems (CA) and more progressive funding systems, such as CO, MA and NC.
Get that report here.
Wednesday, March 16, 2016
The Right to Counsel in School Discipline Proceedings
Julie K. Waterstone (Southwestern) has published Counsel in School Exclusion Cases: Leveling the Playing Field, 46 Seton Hall L. Rev. 471 (2016), which calls for a right to counsel in school discipline cases, particularly given the poor outcomes that face students who are excluded from school. From the abstract:
Access to education is crucial to a child's future. Although there is no federal constitutional right to an education, it has been deemed a property interest that cannot be taken away without adherence to due process. But over the last twenty years, with the rise of the zero tolerance movement, it has become far easier to exclude children from school. Despite the due process protections available, many children facing school exclusion do not have their rights adequately protected without the presence of counsel in school discipline proceedings. Using actual case studies, this Article seeks to broaden the discussion of the civil right to counsel movement to include a right to counsel in school discipline proceedings where a child's right to education is at stake. This Article will highlight the importance of education and bring to light the ease with which it can be taken away from a young person, particularly a young person of color from a low-income family. States should recognize the importance of education by ensuring that it is a right that cannot easily be taken away -- this can be done through the availability of counsel as well as through legislative reforms to our school discipline laws. This Article will also consider the role that law school legal clinics can play in securing counsel for students facing school exclusion. This discussion will hopefully help guide the development of public policy surrounding school discipline and, at the very least, contribute to a discussion of needed legal reforms and the expansion of the services provided by law school legal clinics.
Access to Campus Recreation Programs under the ADA
Sarah J. Young (Indiana), William D. Ramos (Indiana), Sherril L. York (National Center on Accessibility), Allison L. Fletcher (Indiana), have published On the 25th Anniversary of the ADA: How Inclusive Are Campus Recreation Programs?, 26 J. Legal Aspects Sport 22 (2016). The abstract is below.
The purpose of this article is to present the findings of a pilot study, which critiqued the welcoming environment presented by campus recreation programs in the Big Ten. The year 2015 marked the 25th anniversary of the Americans with Disability Act (ADA). Enacted into law in 1990, the ADA is one of the most comprehensive pieces of civil rights legislation prohibiting discrimination against individuals with disabilities. Postsecondary educational institutions are covered under Titles II and III of the ADA and must insure that the programs offered, including campus recreational sport, are accessible to students with disabilities. This was most recently reinforced by the U.S. Department of Education in its January 2013 Dear Colleague Letter providing guidance on the obligations of public schools to provide an equal opportunity to participate in extracurricular activities. Of note in the guidance is “students at the postsecondary level must also be provided an equal opportunity to participate in athletics, including intercollegiate, club, and intramural athletics.” In a search of case law, no specific cases claiming discrimination under the ADA by campus recreation programs against students with disabilities were found, but the question remained, do students with disabilities feel welcomed and included in the programs provided by this campus service?