Thursday, April 28, 2016
The Huntsville (AL) Education Association (HEA) sued Huntsville City Schools last week alleging the district illegally revised procedures for determining when a teacher will be found ineffective and violated the state's open records act by withholding a list of the names of teachers it considered to be ineffective. The controversy began last December when Huntsville City Schools Superintendent Dr. Casey Wardynski (who is no stranger to controversy) gave a presentation to principals entitled "Guidance for Dealing With Teachers Who Are Not Effective." During that presentation, Dr. Wardynski and the district's attorneys purportedly provided the principals with a list of the district's ineffective teachers. Both the Huntsville Education Assoc. and the state teachers' union requested the names, but the district allegedly refused the request. The HEA has asked the state court for a preliminary injunction allowing the HEA to see the new standards and list before the City Schools takes any action and for injunctive relief requiring the City Schools to turn over the materials under the open records law. The complaint is here.
Wednesday, April 27, 2016
Parents Allege Money Earmarked for School Integration Was Diverted to Charter Schools; Now They Want It Back
Plaintiffs in St. Louis, Missouri, have filed a very interesting challenge to recent charter funding practices. They allege that a local sales tax increase earmarked exclusively for desegregation remedies has been diverted to charter schools since 2006. The tax was originally passed in 1999 as part of a consent agreement in school desegregation case. The complaint alleges that the tax was properly spent from 1999 to 2006, but in 2006 it began being diverted to charter schools. The complaint is now asking that those funds be reclaimed for the traditional public schools and desegregation. As one might imagine, this is creating a huge division between families with students currently attending charters, as the remedy the plaintiffs seek would effectively bankrupt the charter system.
Whatever the merits of the complaint, it highlights another example of the ongoing tensions between creating new funding streams for charter schools at the same time that traditional public schools are being underfunded. For instance, Pennsylvania's newest charter funding scheme during the recession required local school districts, rather than the state, to reimburse charters, and the state set unreasonably high reimbursement rates. This nearly bankrupted Chester public schools and it caused Philadelphia schools to run significant deficits. In North Carolina, statutes allowed charter schools to tap into school districts rainy day funds. This meant that the money that districts saved for long term budget shortfalls could be spent immediately by charters. For more on the contrasting funding commitment to traditional public schools and charters, see here.
Monday, April 25, 2016
This year, the U.S. Department of Education's call for grant applications for the "Investing in Innovation Fund" returns the Department of Education to its roots and the original justifications for the federal role in education itself: school integration. Integration and diversity have been sidelined as a reform policy at the federal level for at least two decades, but in just a few short months, Secretary John King has put them squarely on the table. He recently asked Congress for new funding streams to promote education and, this week, has announced that applications that focus on "school diversity" will receive an "absolute priority" in this round of the Investing in Innovation Fund. Oh what a difference a new Secretary of Education makes, which cannot help but make wish for a rewind to the beginning of the Obama Administration and an alternate universe in which Linda Darling-Hammond had been name Secretary or John King got started earlier. Regardless, today is a good day for America's school children.
For those unfamiliar with the Investing in Innovate Fund, the "program is designed to generate and validate solutions to persistent educational challenges and to support the expansion of effective solutions to serve substantially larger numbers of students. The central design element of the i3 program is its multi-tier structure that links the amount of funding that an applicant may receive to the quality of the evidence 3 supporting the efficacy of the proposed project." The new statement on funding priorities state:
First, we include an absolute priority that asks applicants to focus their projects on student diversity. In parts of the country, America's schools are more segregated than they were in the late 1960s, including by students’ race and socioeconomic status. One-quarter of our nation’s public school students attend high-poverty schools where more than 75 percent of the student body is eligible for free and reduced-price lunch; in our cities, nearly half of all students attend schools where poverty is concentrated. In addition, almost half of all African-American and Latino public school students attend these economically segregated schools. Children raised in segregated communities have significantly lower social and economic mobility than children growing up in integrated communities, and States with socioeconomically segregated schools tend to have larger achievement gaps between students from low- and higher-income households. There is a growing body of evidence suggesting that socioeconomic diversity in schools can lead to improved outcomes for students from low-income households (compared to students from low-income households who attend higher-poverty schools). Moreover, research shows that students educated in diverse settings have shown a higher level of critical thinking and life skills.
Therefore, through the invitational priority, the Department invites projects with ambitious strategies that improve outcomes for high-need students by increasing racial and socioeconomic diversity in classroom or school settings. These projects could leverage approaches at the school, district, or regional level that encourage racial or socioeconomic diversity within classroom or school environments. Proposed strategies may range from new instructional approaches that impact socioeconomic integration and student achievement within schools (e.g., schools could improve participation of students from low-income households in advanced placement or “honors” coursework) or through redesigning district recruitment and admissions strategies to support and foster such diversity in schools. The Department seeks to invest in projects that focus concurrently on increasing diversity and school quality in areas where schools are acutely impacted by segregation while closing gaps in academic performance between socioeconomic and racial groups. The Department also encourages all applicants to carefully consider their evaluation design as the Department is keenly interested in developing a body of evidence on how classrooms, schools, and districts can better integrate their student bodies across racial and socioeconomic lines and produce outstanding outcomes for all students.
Let's hope states and districts respond with applications to take advantage.
Friday, April 22, 2016
A California appellate court held last month that school officials' search of a student's cellphone while investigating a firearm violation in the school was justified under the Fourth Amendment. In People v. Rafael C., a student was searched at school after officials found a gun and a magazine in a trash can. The student acted suspiciously near the principal's office, then failed to respond to a request to stop and speak with the assistant prinicipals. School officials detained the student, searched his pockets, and discovered a cell phone. An administrator searched through the phone and found text messages and photographs which he accessed on a computer and printed out. The photographs showed students holding the confiscated firearm found earlier at the school. Rafael C. was arrested and charged with weapons possession. In juvenile court proceedings, a judge denied Rafael's motion to suppress the photographs, finding that the search was a permissible administrative school search. The California Court of Appeals affirmed the juvenile court's denial of the motion to suppress. First, the court noted, the search was justified at its inception because Rafael allegedly was evasive and then turned combative while school officials were questioning him. This behavior gave school officials reasonable grounds for detaining the student and believing that he had violated school rules. The California appellate court relied instead on TLO v. New Jersey, which permits an exception to the warrant requirement when school officials had reasonable grounds to believe school rules have been broken. That exception is even more applicable when the search involves a firearm, a safety issue for the entire school. The appellate court held that the search also did not implicate Riley v. California (2014), in which the U.S. Supreme Court required a search warrant before officers could examine the contents of a cellphone during an arrest. The school search here was conducted before Riley was decided, and therefore school officials could not be "bound to a standard that did not yet exist." The appellate court thus affirmed Rafael C.'s delinquency adjudication, but modified the sentence. The case's slip opinion in People v. Rafael C., No. A143376 (Cal. App. Mar. 25, 2016) is here.
Thursday, April 21, 2016
DOE Reaches Settlement With OK City Public Schools To Address Disproportionate Discipline of Black Students
From the Department of Education website:
The U.S. Department of Education announced a settlement agreement today with the Oklahoma City Public Schools to address disproportionate discipline of black students. An earlier investigation by the Office for Civil Rights found significant overrepresentation of black students, notably in the 2014-15 school year when black students accounted for 42 percent of in-school suspensions although they represent only 26 percent of the population. Previous years showed similar disparities. The agreement seeks to correct Oklahoma City's discipline practices to ensure that the district satisfies its civil rights obligations to its students going forward.
In response to an internal audit of its discipline policies, the district took corrective steps, including reviewing of its discipline code, policies, and practices. The district also created the Office of School Climate and Student Discipline and hired a director of school climate and student discipline and three student behavior specialists. The agreement, in part:
- Designates an employee to serve as the district's discipline supervisor.
- Prohibits exclusionary discipline to the maximum extent possible.
- Requires the district to retain experts to advise the district on research-based strategies to prevent discrimination.
- Implements revised policies and practices.
- Requires training for staff and administrators and programs for students and parents to explain the policies and behavioral expectations.
- Requires the district to provide teachers and administrators with the tools and training to support positive student behavior to prevent and address misconduct.
- Requires school staff to employ a range of corrective measures before referring a student to disciplinary authorities.
- Ensures a system of supports at each school to assess students who display behavior problems.
- Addresses school climate issues.
- Implements measures to engage students, staff and parents in the implementation of the revised policies, practices and procedures.
- Requires a comprehensive review of the School Resource Officer program to assess the program's effectiveness and alignment with ensuring misbehavior is addressed in a manner that minimizes exclusionary discipline to the maximum extent possible.
- Facilitates communication with the parent complainant should she choose to reenroll her children.
The settlement agreement is here.
Can a New Student Loan Forgiveness Program Save the Teaching Profession and the Commitment to Public Education?
Congress is considering a bi-partisan bill to address the national teacher shortage. The bill would extend additional higher education loan forgiveness to teachers who stay in the classroom for a specified number of years. Currently, two different federal programs offer loan forgiveness to teachers. One requires 10 years of service and the other 5 years, but teachers cannot apply for both at the same time, so to take the full benefit, a teacher would need to work 15 years. Under the new bill, teachers could participate in both programs at once, taking full advantage of them and discharging their loans within 10 years.
The million dollar question is whether this change would have a serious effect on those who might consider entering the profession and whether it would improve the quality of teaching over the long-term. It surely will not hurt, but given the depth of the structural problems confronting our teaching workforce, this new program is likely to only tinkering around the edges. As I describe in my forthcoming article Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education,
Extreme teacher shortages swept the nation this past fall, revealing that the education crisis that began during the Great Recession is far from over. From 2008 to 2012, nearly every state in the country imposed budget cuts on education. Cuts of more than one-thousand dollars per-pupil in a single year were routine—the equivalent of a teacher aid in every classroom or the entire science and foreign language departments combined. Some states experienced massive cuts in multiple years. In North Carolina and Florida, per pupil funding fell from over $10,000 to the $7,000 range in just a few years. These funding cuts affected a wide array of educational services, but the most significant were regarding teachers. Lay-offs, pay cuts, and new high-stakes accountability systems dissuaded the next generation of talent from even pursuing a teaching career.
As states finally began to replenish their teaching ranks this past year, they found that teachers were in very short supply. At the same time that states were making cuts to traditional public education, they were enacting huge increases for charter schools and voucher programs. In many instances, districts struggled to hire even the most minimally qualified individuals. Just to ensure warm bodies in the classroom, districts resorted to desperate measures—billboard advertising; hiring substitutes and college interns on a full-time basis; and seeking district-wide exemptions from teacher-certification requirements. In some districts, these drastic measures were not enough to stop class cancelations and teaching overloads. The teaching demand in California, for instance, is forty percent higher than the supply of individuals seeking teaching credentials this year. Current projections indicate the shortage may get worse before it gets better.
As suggested in this quote, this shortage is also having a toxic interaction with the way public schools, charters, and vouchers have been funded over the past several years. While public school funding has dipped tremendously, charter school and voucher funding has doubled and quadrupled in many instances. More here.
 Motoko Rich, Across Country, A Scramble Is on to Find Teachers, N.Y. Times, Aug. 10, 2015, at A1.
 Noelle M. Ellerson, Am. Ass’n of Sch. Admins, A Cliff Hanger: How America’s Public Schools Continue to Feel the Impact of the Economic Downturn 8 (2010) (sixty-six percent of districts reported cuts to state and local revenues between 2008 and 2009 and eighty percent reported cuts between 2009 and 2010).
 Bruce D. Baker et al., Is School Funding Fair?: A National Report Card 12–13 t.2 (3d ed. 2014); Marguerite Roza, Breaking Down School Budgets, 9 Educ. Next (Summer 2009) (specifying programing costs in public schools).
 Bruce D. Baker et al., Is School Funding Fair? A National Report Card 8 (2015).
 Derek W. Black, The Constitutional Challenge to Teacher Tenure, 104 Cal. L. Rev. X (forthcoming 2016) (describing new teacher evaluation systems and changes to hiring, firing, and tenure policies); Exec. Office of the President, Investing in Our Future: Returning Teachers to the Classroom (2012) [hereinafter Investing in Our Future], (reporting a loss of 300,000 teachers); Marjorie A. Suckow & Roxann L. Purdue, Cal. Comm’n on Teacher Credentialing, Teacher Supply in California: A Report to the Legislature Annual Report 2013–2014 16 (2015) (finding a 55% drop in the number of persons pursuing and completing education degrees in California).
 See, e.g., Kristen A. Graham, Looking for a Few Thousand Substitute Teachers, The Inquirer Daily News, Sept. 1, 2015, http://articles.philly.com/2015-09-01/news/66074823_1_retired-teachers-subs-philadelphia-teachers; State of Cal. Comm. on Teacher Credentialing, District Intern Credentials 3 (2015) (permitting interns to teach after 120 hours of training or six credit hours of course work); Andrea Eger & Nour Habib, Crisis Hits Oklahoma Classrooms with Teacher Shortage, Quality Concerns, Tulsa World (Aug. 16, 2015) (in a month and a half, the Oklahoma Department of Education received 526 requests for teacher certification exemptions).
 Eger & Habib, supra note 6; Rebecca Klein, Kansas Underfunded Education and Cut Tenure. Now It Can’t Find Enough Teachers to Fill Classrooms, Huff. Post, July 31, 2015 (reporting school district started year with uncertified teachers and had to use substitutes).
 Rich, supra note 1 (state issued 15,000 teaching credentials, which was 6,500 short of the open teaching positions).
 See Title II Higher Education Act, Data Tools, https://title2.ed.gov/Public/DataTools/Tables.aspx (last visited Nov. 23, 2015) (finding a sharp drop in the number of students pursuing education degrees); Suckow &Purdue, supra note 5.
Wednesday, April 20, 2016
The California Court of Appeals today affirmed the dismissal of a complaint that the state's education finance system violated the state constitution's fundamental right to an education. In Campaign for Quality Education v. California, the plaintiffs argued that article IX of the California constitution required the state to adequately fund education and that the state should be compelled to do so under court supervision. The complaint, brought by a coalition of non-profit organizations and guardians ad litem, alleged that California’s education funding scheme "fail[ed] to ensure that all public school children have the opportunity to become educationally proficient according to current legislatively-mandated academic standards," and that the legislature ignored a constitutional duty to provide an education of "some quality" to public schoolchildren. The appellate court concluded that article IX's text did not impose a judicially enforceable duty to provide an education of “some quality” nor did it require the state to maintain a certain standard of educational quality expressly or implicitly. The court, citing similar litigation in Illinois, also deferred to the the legislature and the political process to resolve educational finance issues. The court also held that the constitution did not provide for a minimal level of education expenditures. A copy of the case is here.
Kristi Bowman and her Education Law Seminar students at Michigan State College of law are hosting a conference on Friday, April 22 titled “Education, Law, and Detroit.” The day-long event seeks to unpack the roots of the current crisis in public education in Detroit and to explore how legal reform can impact financial stability, governance, and achievement in Detroit’s public schools. Speakers include researchers from various disciplines, legislators, and members of the Detroit education community.
The full program is as follows:
Tuesday, April 19, 2016
The North Carolina Supreme Court has overturned a 2013 law that repealed teacher tenure, holding that the repeal violated the Contract Clause of the United States Constitution. For over forty years, North Carolina's teachers were tenured under the Career Status Law, which set the rules for employing, retaining, and firing of public school teachers. In 2013, North Carolina's General Assembly passed a law that revoked the Career Status Law, allowing school boards to decide not to renew a teacher’s contract for any reason except for a few reasons otherwise prohibited by state law. The North Carolina Association of Educators, Inc. and a handful of tenured teachers challenged the law, arguing that the law was a taking because it applied retroactively to previously tenured teachers and prospectively to probationary teachers who were already on track to tenured status. The state supreme court found that the Career Status Law was an implied term of the teachers' employment contracts upon which they relied in accepting lower pay for the anticipated benefits of job security. That security was removed by revoking the Career Status Law and replacing it with a new system that allowed local school boards and teachers to enter into annual term contracts. The court noted that the State's justification for the passing the law, to alleviate difficulties in dismissing ineffective teachers, was unsupported by any evidence that such a problem existed. The court concluded that the State could not show that it had a legitimate purpose, or that if it were legitimate, retroactively ending teacher tenure was nevertheless an unnecessary and unreasonable step to achieve that purpose. The case, North Carolina Association of Educators, Inc. (NCAE) v. North Carolina, No. 228A15 (N.C. April 15, 2016), is available here.
Gavin Grimm Secures Monumental Victory for LGBTQ Community for Equal Access to Bathrooms and Facilities
Gavin Grimm just secured an enormous victory for himself, and the entire LGBTQ community, in his fight to gain equal access to the restrooms and other facilities at his public school in Gloucester, Virginia. After losing before his school board and a federal district court, he has now won in the Fourth Circuit Court of Appeals. For those who do not follow this blog or the issue in general, equal access to facilities for transgender students has been a topic of hot debate at the local and state level across the country. See here and here. Regardless, this was a case of first impression and reached a result that emphatically secures rights for students in the southeast and mid-Atlantic states, and will likely have an impact on other circuits as they take up similar cases.
For the non-lawyers looking for clear answers, the opinion in G.G. v. Gloucestor Country may appear confusing, as it includes some technical procedural and analytical issues. I offer this simplified explanation of the case. First, Title IX, a federal statute, prohibits discrimination based on sex in schools. Second, Title IX does not specifically address gender identity, but the U.S. Department of Education has interpreted the statute to transgender individuals: “When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity.” Thus, the key issues in the case were whether the meaning of "sex" in the statute was ambiguous and, if so, whether the Department's interpretation of the term was reasonable.
In a 2-1 decision, the Fourth Circuit held that while "sex" clearly refers to males and females, how Congress intended that term to apply to intersex or transgender students is not clear. When confronted with such an ambiguity, a court should defer to an agency's reasonable interpretation. Thus, that is exactly what the Fourth Circuit did, ruling in favor of Gavin Grimm. The case is now on its way back to the district court, which must now apply the correct standard and determine what remedy to afford Mr. Grimm.
For those legal scholars looking for more, the full opinion is here. Or see below for the most pertinent discussion by the court:
Navigating the lines between the Establishment and Free Exercise of Religion Clauses of the First Amendment is one of the toughest jobs a school has. It becomes even more difficult when free speech rights come into play, as schools can easily misdiagnose free speech issues as religion issues. While the state might distance itself from religion, it cannot use that as an excuse to squelch speech of a religious nature. By the same token, it cannot squelch speech unfavorable to religion unless the speech is objectionable on neutral grounds, such as material and substantial disruption. A new case out of Antelope Valley School District in California brings these issues to the fore with an interesting set of facts. Last week, the Freedom From Religion Foundation and The Antelope Valley Freethinkers, along with a local plaintiff, sued the school district for its refusal to put students on notice of scholarships that Foundation and the Freethinkers were going to make available to students in the district. The plaintiffs argue that the district's refusal was viewpoint discrimination prohibited by the First Amendment. I also have some sneaking suspicion that the Foundation and Freethinker's decision to offer a scholarship was a strategic one in response to the fact that another scholarship was already being offered in the district to students of religious faith. The scholarships called on plaintiffs to write an essay in response to prompts.
The first scholarship's prompt is as follows:
A freethinker is someone who develops opinions based on science and reason in contrast to faith and dogma. Write from a personal perspective encounters you’ve had when you object to or raise logical- or evidencebased challenges to statements of faith or dogma within your family, your school, or the Antelope Valley at large. Perhaps you’ve been ridiculed, harassed, or punished for speaking up against religion in the classroom, at school events, in government, or within your family. Perhaps you’ve been successful in convincing others of your position. Discuss the effects on you and those around you as you’ve dealt with these encounters.
The second scholarship included two prompts:
“Young, bold and nonbelieving: Challenges of being a nonbeliever of color.” Write from personal perspective about experiences or challenges you face, as a nonbeliever in a religious family or community, and minority within the freethought community. Are there obstacles discouraging diversity within the movement? What do you think could be done to make freethought and nonbelief more attractive to America's nonwhite communities? Include at least one paragraph about why you are a nonbeliever.
“Why I’m Good Without God: Challenges of being a young nonbeliever” Write from personal perspective about your experiences or challenges in the face of persistent stereotypes that atheists and other nonbelievers are not moral. Explain how you're “good without God,” why religion is not necessary for morality and may even be counterproductive. What can you or others do to counter negative stereotypes about nonbelievers? Include at least one paragraph about why you are a nonbeliever.
According to the complaint:
Deputy Superintendent Foster called Dionne on May 19 to explain that the District was rejecting the [Foundation's] scholarship because the wording of the essay prompt would upset parents.
Dionne took notes on the conversation: “In a phone conversation yesterday, [Foster] said he couldn't approve the scholarship the way it was worded because it would upset some parents. In particular, he cited the following sentence as particularly objectionable: ‘Perhaps you’ve been ridiculed, harassed, or punished for speaking up against religion in the classroom, at school events, in government, or within your family.’”
Dionne offered to reword the prompt, but Foster told Dionne by email on May 21, “We simply do not have the time to ‘word smith’ language that might be acceptable to the district and yet meet the intent of your organization. If you wish toconsider a pursuit of this matter – I would invite this potential dialogue early next spring, when we would have time to consider alternate language.”
The scholarship Dionne had submitted was not due until July 1, 2014. FFRF sent the District a letter on July 8, 2014 objecting to the District’s censorship of AVF’s scholarship and asking that the District approve and distribute the scholarship opportunity. FFRF did not receive a response and sent a follow up letter on October 7, 2014. Dionne emailed Foster on September 8, 2014 and again on September 23, 2014 asking to meet about revisions to the scholarship. Foster told Dionne on September 29 that he had moved to another position, and his replacement, Greg Nehen, would be contacting Dionne soon about the scholarship. Nehen never contacted Dionne.
Dionne emailed another copy of the AVF scholarship to the District on November 17, 2014. In a December 10, 2014 the District’s General Counsel Bridget L. Cook, responded to FFRF’s July 8 and October 7 follow up letters and Dionne’s second request. Cook stated, “since the District is a limited public forum, we reserve the right to determine what information we allow to be disseminated in our schools.” Cook explained that the District was rejecting AVF’s scholarship because, “The Antelope Freethinker's initial proposed scholarship essay prompt appears to promote anti-religious expression. Even if the phrase in question is removed, the prompt still contains an aggressive undertone towards religion.”
FFRF Co-President Dan Barker sent the District a letter on March 2, 2015 requesting that FFRF’s annual high school essay contest be advertised to the District’s students as it regularly did for other organizations’ scholarships. On April 23, 2015 Cook responded to FFRF’s request: “the District will not be distributing this scholarship information to students” because “[y]our Foundation’s proposed scholarship essay prompts appear to promote anti-religious expression and contain argumentative undertones toward religion.” Cook claimed that the District was a “limited public forum” which “reserve[d] the right to determine what information we allow to be disseminated in our schools." Cook cited Board Policy 6142.2 as stating, “Staff shall not endorse, encourage, or solicit religious or anti-religious expression or activities among students.”
Get the full complaint here.
Genevieve Siegel-Hawley's new book, When the Fences Come Down: Twenty-First-Century Lessons from Metropolitan School Desegregation. It includes an afterword with Gary Orfield. The promotional materials offer this summary of the book:
How we provide equal educational opportunity to an increasingly diverse, highly urbanized student population is one of the central concerns facing our nation. As Genevieve Siegel-Hawley argues in this thought-provoking book, within our metropolitan areas we are currently allowing a labyrinthine system of school-district boundaries to divide students--and opportunities--along racial and economic lines. Rather than confronting these realities, though, most contemporary educational policies focus on improving schools by raising academic standards, holding teachers and students accountable through test performance, and promoting private-sector competition. Siegel-Hawley takes us into the heart of the metropolitan South to explore what happens when communities instead focus squarely on overcoming the educational divide between city and suburb.
Based on evidence from metropolitan school desegregation efforts in Richmond, Virginia; Louisville, Kentucky; Charlotte-Mecklenburg, North Carolina; and Chattanooga, Tennessee, between 1990 and 2010, Siegel-Hawley uses quantitative methods and innovative mapping tools both to underscore the damages wrought by school-district boundary lines and to raise awareness about communities that have sought to counteract them. She shows that city-suburban school desegregation policy is related to clear, measurable progress on both school and housing desegregation. Revisiting educational policies that in many cases were abruptly halted--or never begun--this book will spur an open conversation about the creation of the healthy, integrated schools and communities critical to our multiracial future.
Others also offer these reviews:
"When the Fences Come Down is the book that I myself would have written about the housing-school linkage, but Genevieve Siegel-Hawley has done it so much better than I could have. She masterfully combines a comprehensive review of scholarly literature about the housing-school nexus with case studies that highlight the key value of county-wide school districts covering both a central city and its suburbs in promoting racial and economic integration."
--David Rusk, Founding President, Building One America, and author, Cities without Suburbs
"Professor Siegel-Hawley's book is a direct challenge to current education "reformers" who think we can close the achievement gap by keeping low income children in separate, segregated schools. She uses real life examples to demonstrate how state and local leaders can work together to make housing and school integration a reality."
--Philip Tegeler, National Coalition on School Diversity
"Genevieve Siegel-Hawley uses the experience of four southern metropolitan areas to evaluate regional approaches to school desegregation and how they relate to changing patterns in housing segregation. This book contributes significantly to an area clearly in need of further research--regional approaches to school desegregation."
--Thomas Luce, Institute on Metropolitan Opportunity, University of Minnesota Law School
"When the Fences Come Down is a timely and well-considered contribution to the literature on desegregation in American schools. It promises to reframe the discourse on the topic so that educators and policymakers can look broader than a school and more acutely than the entire nation and instead settle their focus on a more appropriate unit of analysis--a region. Genevieve Siegel-Hawley looks squarely at issues that have heretofore been identified as important but have not received the scrutiny they merit as factors that may help us fully understand the conflicted legacy of Brown v. Board. Each chapter is rich with data, subtlety, and complex problems and solutions."
--Jeffrey S. Brooks, Monash University
Monday, April 18, 2016
California Court of Appeal Deals Legal Assault on Teacher Tenure a Major Blow, Laying Bare Its Shallow Assumptions
Last week, the California Court of Appeals reversed the trial court that sent shockwaves through the nation when it ruled that California's tenure and seniority statutes were unconstitutional in 2014 in Vergara v. State. As detailed here, the plaintiffs' and trial court's reasoning were riddled with numerous problematic assumptions about the causes of ineffective teaching and the disproportionate number of uncertified and low quality teachers in predominantly poor and minority schools. The Court of Appeals was nicer in its assessment, but reached the same conclusion. It wrote:
NPR is embarking on a three week tour of school funding. The stories will range from social science and policy to first person accounts from schools across the country. This morning was just a primer of the days to come:
Over the next three weeks, the NPR Ed Team will unveil a vast collection of "School Money" stories told in collaboration with station reporters across the country. Our goal: To give voice to this school-funding imbalance and to explain what happens when many of America's poorest students also attend its poorest schools.
Here's one cause for alarm: The achievement gap between this nation's wealthiest and poorest students is growing dramatically, not shrinking.
We'll begin each week with a question to guide our coverage. For this, our first week:
"How do we pay for our schools?"
NPR's has also created a website with loads of data and interactive tools to give the average person a sense of how schools are funding nationally and locally. See here.
Thursday, April 14, 2016
Minnesota is now the third state to entertain the theory that teacher tenure and seniority protections violate students' state constitutional right to education. Unable to locate the actual complaint, I have had to rely on the initial news reports of the claims, but three points seem pretty clear. First, the case is modeled on the lawsuits from California and New York and is being funded/coordinated by the same policy and media advocates. Second, according to the Star Tribune, it claims that "Minnesota laws protect teachers who should no longer be in classrooms, thus preventing thousands of students from getting a high-quality education." Or as one of the plaintiffs' attorneys in the case states, “This is a conversation about students’ fundamental right to an education and the laws that get in the way of that right.” Third, the lawsuit attributes achievement gaps between students to tenure. “When we look throughout the country at places where there are harmful teacher employment statutes and significant achievement gaps, Minnesota was one of the first states that popped up as a place that could use this kind of help,” said Ralia Polechronis, executive director of Partnership for Educational Justice.
From what I can tell, it also falls victim to all the same simplistic assumptions about teacher quality and equal educational opportunities. Unless plaintiffs unearthed new data and trends in Minnesota, the plaintiffs have no basis to believe that teacher tenure actually has a negative causal effect on educational opportunity. As detailed in The Constitutional Challenge to Teacher Tenure, 104 California Law Review 79 (2016), numerous different factors affect teacher quality and educational opportunity. Prior plaintiffs may marshaled almost no evidence that tenure has any causal effect on the quality of teachers who choose to teach and stay in a particular school, much less evidence that tenure is a significant factor in the quality of education a school offers. If tenure does not have a significant causal effect, it cannot support a constitutional claim. It is not enough to argue that tenure is bad policy. Good or bad, policies of this sort fall within the discretion of the legislature.
This from The Campaign for Educational Equity:
The 2016-17 New York State budget has now been enacted by the legislature and signed into law by the governor. This budget increases state aid to education by approximately $1.35 billion, which will provide an average increase of 4% in foundation aid and a 5.9% increase in overall school aid for the state's school districts. Although Governor Andrew Cuomo has boasted that "this is the best [budget] plan the state has produced...in decades literally," in percentage terms the increase is basically the same as last year's. Moreover, this budget does not rival the 14% increase in foundation aid and 9% increase in overall education aid that the legislature enacted for 2007-08, immediately following the final court decision in the Campaign for Fiscal Equity (CFE) case.
Bright spots in the budget include a substantial commitment to converting struggling schools into community schools that provide important health, academic, and social supports to students and their families. The foundation-aid increase includes $100 million earmarked for school districts to spend on community schools, and, there is an additional categorical allocation of $75 million for expanding community schools in districts with struggling or persistently struggling schools. The budget also finally does away with the notorious "gap elimination adjustment" that, since 2010, has provided a rhetorical justification for the state to reduce educational spending below constitutionally required amounts. Plaintiffs in the pending NYSER v. State of New York litigation are continuing to press for a court ruling that would prohibit the state from ever reinstating the GEA or any similar device in the future.
This year's increase is well below the $2.4 billion in additional state aid that the Regents had recommended. And it is not sufficient to remedy the state's ongoing violation of the requirements of Article XI, §1 (the education article of the state constitution), and does not fulfill the clear directives of the state's highest court in the CFE litigation. The state's on-going noncompliance means that the fundamental educational resource deficiencies created by years of budget cuts, the pressures of additional unfunded state mandates, the escalation of health, pension, and other costs will continue to undermine the educational opportunities of vast numbers of the state's three million public school students. The state's ongoing underfunding of its constitutional requirement disproportionately affects students from low-income households and communities and students of color.
The state also continues to maintain a "supermajority" tax cap that prohibits school districts outside of New York City from increasing local property tax rates by more than 2% or the last year's increase in the consumer price index, whichever is less, without the approval of 60% of the district's voters. This year the cap allowed increases of essentially 0%. The foundation formula is premised on an expectation that local property taxes will be funding a share of the school district's budget, in accordance with local property wealth. Since, in many cases, the property tax cap will prohibit the district from raising a fair share of needed revenues from local taxes, the shortfall between the available resources and the amounts needed to provide students the opportunity for a sound basic education will be even greater than is indicated by the continuing shortfall in state aid. It should be noted that an attempt to extend the property tax cap to New York City this year was defeated.
Major Violations of Constitutional Requirements
Among the major violations of constitutional requirements that the 2016-17 state budget perpetuates are (1) a continuing deferral of full funding of the amounts needed to meet constitutional sound basic education requirements; (2) a revival of the infamous "shares agreement" that was banned by the courts in CFE; and (3) a failure to provide full funding for universal prekindergarten services.
- Continued Deferral of Full Foundation Funding
In CFE v. State of New York, the Court of Appeals directed the state to create a system to provide full funding for the "actual cost" of ensuring all students the opportunity for a sound basic education by the 2010-11 school year. Six years past this deadline, the state continues to flout this requirement. In 2007, the legislature adopted a foundation funding formula that was based on the amount that the state education department had calculated to be the actual cost of a sound basic education. Although the state has never denied that the validity of this formula for calculating the amounts that are needed to provide the constitutionally required opportunity for a sound basic education, each year since 2009-10, the state has deferred the date for full implementation of the foundation funding amounts.
For 2016-17, even with the $1.35 billion in additional funding that the state appropriated, total foundation funding will still be approximately $4 billion below the amount the state legislature itself had determined to be necessary to provide all students the opportunity for a sound basic education.
Reversion to the Infamous "Shares Agreement"
In its CFE decisions, the Court of Appeals repeatedly specified that the state's funding system must "align funding with need" (CFE II, 100 N.Y. 2d. at 929), that resources must be "calibrated to student need" (id. at 929), and that the amount of state aid provided must "bear a perceptible relation to the needs of City students" (Id. at 930; CFE III, 8 N.Y.3d at 21 (2006)). Instead of adhering to the foundation formula, the state has reverted to the infamous "three men in the room" decision-making process in which the governor and the two legislative leaders determine how much funding each school district will receive behind closed doors and on the basis of political deals, rather than student need.
Evidence submitted in the CFE trial showed that, for almost all of the decade preceding the trial, New York City had received precisely 38.86% of the annual increase in state aid under a political "shares agreement." Supreme Court Justice Leland DeGrasse denounced this arrangement, stating that it reflected "an array of manipulations" that did not relate to actual student needs (see CFE v. State of New York 187 Misc. 2d 1, 89 (S. Ct., N.Y. Co, 2001)). Significantly, for the past few years, and now again for 2016-17, New York City's share of the state aid increase will be the same 38.86% or the "fixed percentage share" that the court held to be blatantly unconstitutional in CFE.
- Failure to Fund Prekindergarten Services Appropriately
Two years ago, the governor and the legislature committed to provide access to universal high-quality full-day pre-K services to all four year olds in New York State within a five-year period. Pre-K is one of the specific services that the CFE court deemed to be constitutionally essential, at least for high-need students. The governor proclaimed that the state would provide school districts sufficient funds for this initiative as soon as school districts were ready to expand their programs. However, for 2016-17, the third year of the proposed five-year implementation period, the state again failed to keep that pledge.
For the 2014-15 school year, the legislature appropriated $300 million for New York City and only $40 million for all other school districts in the state. Last year, and now for this year, the state appropriated only those same amounts. This means that students in many upstate districts still cannot be served. Estimates of the number of currently unserved children run as high as 100,000.
The legislature did enact a new $22 million competitive grant program for preschool for three year olds, which will expand opportunities for a small number of these younger students. The manner in which this funding has been appropriated, however, further complicates the already complex and fragmented funding mechanisms that New York State now utilizes for pre-K: there are now seven separate programs through which pre-K is funded, many of which are competitive grants that school districts must research and navigate in order to obtain funding for their students.
Necessary State Action for Achieving Constitutional Compliance
The Campaign for Educational Equity (CEE) will continue to press the governor, the legislature, and the Regents to make significant advances toward constitutional compliance in each of these areas over the coming months, and we will make concrete policy recommendations to help them to do so.
All of these constitutional deficiencies are also being challenged by the plaintiffs in the NYSER litigation that is now pending before the New York State Supreme Court. In that case, the plaintiffs are claiming, based on research and recommendations from CEE, that the governor, the legislature, and the Regents must take the following actions to achieve constitutional compliance:
- Identify the essential resources, services, and supports that must be available to all students to comply with the constitution and to meet statutory and regulatory requirements
- Reduce costs without violating children's constitutional rights by eliminating unnecessary mandates, revamping ineffective requirements, and providing school districts clear guidance on how to maximize cost efficiency and costeffectiveness while safeguarding constitutional educational services;
- Develop and implement an up-to-date methodology to determine the actual costs of providing all students with the essential resources for a sound basic education in a cost-effective manner that properly weighs student needs and concentration-of-poverty factors;
- Revise the state funding formulas to ensure that all schools receive sufficient resources; and
- Create state and local accountability mechanisms for sound basic education and ensure enforcement by the state education department and other entities and the means and capacity to carry out those responsibilities.
Wednesday, April 13, 2016
Fourth Circuit Rejects Deliberate Indifference Suit Based On Disability Harassment; N.H. Supreme Court Reinstates Counselor Who Sued To Protect A Student's Privacy
Fourth Circuit Applies Davis v. Monroe County To Student-on-Student Harassment Claims Based on Disability
The Fourth Circuit recently affirmed a summary judgment finding against a disabled student, S.B., who sued his school board claiming that officials had been deliberately indifferent to bullying incidents against him. The circuit court also affirmed a summary judgment ruling against S.B.'s stepfather's retaliation claim alleging that the stepfather was fired as a teacher and athletic director at the same school for advocating on S.B.'s behalf. The Fourth Circuit found that the district court correctly determined that S.B. has provided no evidence that the school board acted with acted with deliberate indifference about S.B.'s disability to hold it liable for bullying or that his stepfather's advocacy for him was related to an adverse employment action against him. While school officials were aware that S.B. was being bullied and took steps to protect S.B., there was no evidence that the harassment towards S.B. was on account of his disability or that the board failed to act when it should have because of disability discrimination against S.B. Applying the Supreme Court's analysis in Davis v. v. Monroe County Board of Education (1999), a Title IX student-on-student sexual harassment case, the Fourth Circuit held that the school board did not have adequate notice that S.B. was being bullied by other students because of his disability, and thus it was not deliberately indifference to the harassment. The case is SB v. Board of Education of Harford, No. 15-1474 (4th Cir. Apr. 8, 2016).
New Hampshire Supreme Court Reinstates Guidance Counselor Who Was Terminated After Seeking to Protect The Privacy of Student Seeking An Abortion
The New Hampshire Supreme Court ordered the reinstatement of a school guidance counselor who was terminated after she sued the principal of her school when he decided to reveal to a student's parent that the student was seeking an abortion. Farmington guidance counselor Demetria McKaig was told by a 15-year-old student that the student planned to get an abortion without her parents' knowledge. McKaig in turn reported the information to the principal, who announced that he planned to call the student's mother. McKaig, believing that state privacy laws prevented the school from informing the student's mother about the planned abortion, contacted the ACLU and with the organization's help, filed a temporary restraining order (TRO) against the principal in superior court to prevent the principal from contacting the student's mother. The TRO was granted against the principal. McKaig was terminated four months later on the grounds of insubordination, breach of student confidentiality (for reporting the case to the ACLU), and neglect of duties. Ultimately, only the first two grounds were relied on form McKaig's nonrenewal of her contract. The New Hampshire Supreme Court upheld the state board's determination that McKaig was not insubordinate to the principal. The high court then ruled that McKaig's seeking a TRO was justifiable under an emergency exception to the Federal Educational Rights and Privacy Act (FERPA), which was incorporated into the state's education policies by reference. The case is Appeal of Farmington School District, No. 2015-0032 (N.H. 2016).
The Detroit Public Schools announced last week that it is again suing the State of Michigan in a class action suit under Section 1983, this time alleging that the appointment of emergency managers has resulted in financial and academic mismanagement and deteriorating building conditions. This suit follows DPS's suit last year alleging that Michigan Governor Rick Snyder's administration was trying to privatize the school district. The latest suit, Paulding v. Snyder, alleges that the state's failure to adequately fund education and improvements to DPS schools violates the civil rights of the district's 58,000 students. The suit lays much of the blame for DPS's financial problems (the legislature recently passed a bill for $48.7 million in emergency funding to keep the DPS open through the end of the school year) on the Emergency Manager Law. In January, the Detroit Federation of Teachers also sued the state alleging that then-emergency manager Darnell Earley failed to address deteriorating buildings. The Detroit Free Press has posted a copy of the suit here.
Matthew Delmont's book, Why Busing Failed: Race, Media, and the National Resistance to School Desegregation, is now available in paperback. The promotional materials offer this synopsis:
In the decades after the landmark Brown v. Board of Education Supreme Court decision, busing to achieve school desegregation became one of the nation’s most controversial civil rights issues. Why Busing Failed is the first book to examine the pitched battles over busing on a national scale, focusing on cities such as Boston, Chicago, New York, and Pontiac, Michigan. This groundbreaking book shows how school officials, politicians, the courts, and the media gave precedence to the desires of white parents who opposed school desegregation over the civil rights of black students.
This broad and incisive history of busing features a cast of characters that includes national political figures such as then-president Richard Nixon, Chicago mayor Richard J. Daley, and antibusing advocate Louise Day Hicks, as well as some lesser-known activists on both sides of the issue—Boston civil rights leaders Ruth Batson and Ellen Jackson, who opposed segregated schools, and Pontiac housewife and antibusing activist Irene McCabe, black conservative Clay Smothers, and Florida governor Claude Kirk, all supporters of school segregation. Why Busing Failed shows how antibusing parents and politicians ultimately succeeded in preventing full public school desegregation.
Slate.com recently published a nice interview with Delmont. The following two exchanges were particularly insightful:
Jake Blumgart: Throughout the book you quote black activists or politicians who argue that busing is just a nice term for opposition to integrating our public schools. Why did the media fall so hard for the rhetoric of anti-integration activists in the 1960s and 1970s?
Matt Delmont: For two reasons. They had a very limited understanding of what was going on with civil rights in the North. Looking back at their coverage and how reporters talked about history afterward, they consistently thought of civil rights as a Southern story. They just couldn’t believe that school and neighborhood segregation could be intentional in cities like Chicago and Boston.
Desegregation is also really complex to get a handle on. To really get into the nitty-gritty reality of how these schools came to be segregated took a lot of research, more than most reporters or television journalists could do. Most places, especially television, would drop in for a day or two for the story and then fly back out. They were compelled by these anti-busing activists who were able to make really persuasive sound bites and visible protests that resonated powerfully. Anti-busing activists were really savvy in how they framed they story. The pro-busing side, the case they were trying to make, was much more complicated.
When we think of the relationship between TV and civil rights, almost everyone thinks of the 1950s and 1960s and the really positive role television played in bringing Little Rock, Selma, and Montgomery to a national audience. I think that’s largely a true story. Television news really forced Americans to confront what was going on in the Jim Crow South. But that same medium played almost the exact opposite role when it came to school segregation. It framed those anti-busing activists in a very positive light.
What was the nadir of school desegregation after Brown v. Board?
The 1964–1974 period is really what casts the die in terms of what’s possible for school desegregation. The reason I titled the book Why Busing Failed is because when I would tell people I was working on a book about the history of busing, most would shake their heads and say, “It’s too bad that policy failed.” I think after Boston it became very difficult to get people to think seriously about this as a politics that could succeed on a large-scale level. There were a number of school districts that had success with it, in part because they received less attention and things worked on a local level without it exploding the way that Boston did.
When asked about the future of school integration, Delmont's response is similar to the one voiced on this blog over the past two years: surprisingly, integration has returned as part of the national conversation. He pays special homage to Nikole Hannah-Jones' story on This American Life.
Daniel Kiel's response to the question is yes. In his new paper, No Caste Here? Toward a Structural Critique of American Education, Penn State Law Review, Vol. 119 (2015), he offers this perspective:
In his famous dissent in Plessy v. Ferguson, Justice John Marshall Harlan argued that in the United States, there was “no caste here.” Justice Harlan was rejecting the idea that American society operated to assign preordained outcomes to individuals based upon classifications, including racial classifications. This Article questions whether Justice Harlan’s aspirational assertion accurately reflects contemporary American education. Identifying: (1) multiple classification mechanisms, all of which have disproportionate racial effects, and (2) structural legal, political, and practical impediments to reform, the Article argues that the American education system does more to maintain the nation’s historical racial hierarchy than to disrupt it. This is so, the Article suggests, despite popular agreement with the casteless ideal and popular belief that education can provide the opportunity to transcend social class. By building the framework for a broad structural critique, the Article suggests that a failure to acknowledge and address structural flaws will preclude successful comprehensive reform with more equitable outcomes.
Download the full article here on ssrn.