Wednesday, August 31, 2016
A federal district court in Pennsylvania has ordered the School District of Lancaster, PA, to allow older refugee students to attend their local high school. The plaintiffs are six students, who are between 17-21 and who are refugees from Somalia, Sudan, Democratic Republic of Congo, and Burma. They sued the Lancaster district this summer, alleging that the district illegally refused to enroll them at the public McCaskey High School or diverted them to a privately-run alternative school, Phoenix Academy. According to the lawsuit, district employees told the students that they were too old to enroll (not true) or did not have sufficient English proficiency (despite McCaskey having a an international program dedicated to serving transitioning English language learners.) Some of the students' younger siblings were admitted to the district's schools. At Phoenix Academy, the students alleged, they were subject to frequent pat-down searches, restrictions on their dress and activities, and bullying from other students. Moreover, the students alleged that the pace of Phoenix's instruction, which was designed to allow disruptive or older students to earn accelerated credits so that they could graduate faster, was inappropriate for students who had recently arrived in the United States. Phoenix offers no extra curricular programs. While the federal court was taking testimony in the case, an attorney for the Lancaster school district commented that "[i]f [the plaintiffs] don't like the security measures [at Phoenix Academy] then they definitely won't like them at McCaskey, where they have two guards with Tasers and yes, sometimes they have to use them." U.S. District Court Judge Edward G. Smith granted a preliminary injunction ordering the district to allow the students to attend McCaskey, stating that the plaintiffs presented "straightforward legal issues that were ultimately easy to resolve. ... [T]he law is clear: eligible students must be timely enrolled, and efforts to overcome language barriers must be sound and effective." The district is appealing the order.
Earlier this spring, Detroit public school teachers made national news by coordinating what was called a "sick-out." Around 1500 teachers called in sick, which forced 94 of 97 Detroit schools to close for a day. The sick-out was meant as a protest of the financial troubles the district was facing and the prospect that teachers might not be paid in July. Less news-catching was a lawsuit by the District against the teachers who apparently helped orchestrate the sick-out. The District argued that the sick-out was, in effect, a strike, which is prohibited by the Michigan Public Employment Relations Act (PERA). A trial court in Michigan has now ruled against the District, reasoning that the teachers were exercising their free speech rights and that PERA cannot reach their behavior without creating First Amendment conflicts. Because it is a state trial court ruling, I have yet to get the opinion, but the Detroit Free Press offered this summary:
In her ruling, Stephens, a Michigan Court of Claims judge, said the district didn't prove that Conn and Conaway violated PERA.
"Here, the vast majority of the speech attributable to defendants concerns complaints to the state government to rectify educational, financial and structural problems in the Detroit Public School District, and not issues concerning the rights, privileges or conditions of their employment," she said.
"Any injunction based on defendants' exercise of their free speech right to petition their government would run afoul of First Amendment protections."
Stephens said that the district's argument that the defendants were precluded from even saying they approved of work stoppages "goes far beyond the scope of PERA and such an interpretation is offensive to fundamental rights of free speech."
The state picked up the district's legal costs, spending about $320,000, Michigan Department of Treasury spokeswoman Danelle Gittus said Aug. 10.
George Butler III, the main attorney for the school district, and district spokeswoman Chrystal Wilson could not immediately be reached for comment late today.
In the weeks after the lawsuit was filed, most of the 28 defendants, including the Detroit Federation of Teachers union, were dismissed by Stephens or withdrawn by the district, leaving only Conn and Conaway. The judge twice denied the district's request for temporary restraining orders.
Tuesday, August 30, 2016
Mark McAllister (Indiana Tech) has posted an article on SSRN exploring regulating student cell phone searches through an administrative warrant process. The abstract is below.
Rethinking Student Cell Phone Searches by Mark Chase McAllister (Penn State Law Review, 2016)
For K-12 students, this article advocates a middle-ground solution that accounts for the unique privacy interests that apply to all cell phones while preserving the need to control the K-12 learning environment without undue judicial supervision. This article thus proposes that K-12 schools adopt an internal system of checks and balances consisting of a higher-level, independent review of a school official’s desire to search a student cell phone, along with an administrative warrant the supervising official must sign before the search may be carried out.
After weighing the pros and cons of extending Riley to the schoolhouse gates, this article arrives at the simple conclusion that, despite its narrow holding, Riley’s sweeping pronouncements regarding the unique privacy concerns inherent in the modern cell phone demand a rethinking of the law governing student cell phone searches. Riley stated, for example, that the privacy protections owed modern cell phones are even greater than what we enjoy in our homes, the area that has traditionally received the greatest Fourth Amendment protection, thereby implying that cell phone searches, of any kind and in any place, are owed the greatest possible constitutional protection. In addition, although Riley involved searches of arrestees, who have traditionally enjoyed diminished privacy interests, the Court nevertheless found the privacy-related concerns in cell phones weighty enough to require a warrant, notwithstanding arrestees’ reduced expectations of privacy. This exact rationale can be applied to K-12 and college students, who, like arrestees, have also enjoyed reduced Fourth Amendment protections.
This article concludes by proposing heightened Fourth Amendment protections for both K-12 and college cell phone searches. First, this article argues that although college students enjoy reduced expectations of privacy in certain instances, particularly for administrative inspections where campus safety concerns predominate, the justifications for such rulings do not apply to a cell phone’s digital contents.
New Special Education Funding Settlement Highlights Troubling Differences between Federal and State Rights
The U.S. Department of Education and the South Carolina Department of Education have finally reached a settlement in regard to South Carolina’s failure to properly fund special education services. The U.S. Department of Education’s Office of Special Education and Rehabilitative Services found that that South Carolina was underfunding its special education programs to the tune of $51 million in 2010, with continuing shortfalls in subsequent years. The U.S. Department of Education emphasized that:
Under IDEA, a state must make available at least the same amount of financial support for special education and related services for children with disabilities each year as it did in the prior year. The consequence for failing to maintain financial support is a mandatory reduction in a future year’s IDEA allocation by the amount of the shortfall.
“This settlement is a victory for children with disabilities in South Carolina,” said Sue Swenson, Acting Assistant Secretary for the Office of Special Education and Rehabilitative Services. “Our Administration is committed to ensuring that schools have the resources they need to provide necessary supports and services to children with disabilities to ensure that they can leave school ready for college and career. We look forward to working with the South Carolina Department of Education to fully and effectively implement the terms of this agreement.”
Under the agreement, the U.S. Department will leave South Carolina's federal funding in place in exchange for South Carolina "appropriat[ing] additional state funds, above the amount required to maintain financial support under the IDEA, for special education and related services in the amount of $51,336,578." These funds are to be used over the next four years "to implement programs and initiatives focusing on increasing reading proficiency for children with disabilities." Get the full agreement here.
The settlement is a major victory for special education students in South Carolina, but it also begs questions in regard to South Carolina's overall education budget. Under the Elementary and Secondary Education Act, similar maintenance of effort standard apply to general education funding as well. If the state had failed in regarding to maintaining federal education funds, there is a strong chance it did so in regard to other education funds as well. Based on inflation adjusted calculations, South Carolina's education funding in 2014 was still 10 percent below 2008 levels. In other words, the cuts that were imposed during the recession had not been restored once the economy recovered. General maintenance of effort standards, however, are notoriously difficult to enforce and I do not expect forthcoming action on this front. And in fairness to South Carolina, it is not alone. More than half of the states fall into this category.
To put the matter in even more stark relief, the state supreme court declared the state's education funding system unconstitutional in 2014. Since then, however, the state has not taken any significant action to remedy various deficiencies outlined in the court's opinion. In other words, while the federal government has been able to prod the state into action for statutory violations, the court has been unable to do the same for constitutional violations. But again, South Carolina is not alone. A troubling trend has developed whereby states have flaunted their state constitutional obligations. This reality may signal the need to more seriously consider what role the federal government can and should play in ensuring funding equity and adequacy in the future. I hope to post a new paper on this topic in the next week or so.
Monday, August 29, 2016
Jason Nance's forthcoming article, Student Surveillance, Racial Inequalities, and Implicit Racial Bias, Emory Law Journal, is available here on ssrn. His abstract offers this summary:
In the wake of high-profile incidents of school violence, school officials have increased their reliance on a host of surveillance measures to maintain order and control in their schools. Paradoxically, such practices can foster hostile environments that may lead to even more disorder and dysfunction. These practices may also contribute to the so-called “school-to-prison pipeline” by pushing more students out of school and into the juvenile justice system. However, not all students experience the same level of surveillance. This Article presents data on school surveillance practices, including an original empirical analysis of restricted data recently released by the U.S. Department of Education after the shootings at Sandy Hook Elementary School. Paralleling other disturbing trends of inequality in our public school system, these results and other empirical analyses reveal that schools serving primarily students of color are more likely to rely on more intense surveillance measures than other schools. Further, the empirical evidence suggests that these racial disparities may not be justified by legitimate safety concerns. This Article then turns to a discussion of the role that implicit racial bias may have in school officials’ decisions to rely on intense surveillance methods. Finally, it proposes legislation and strategies that federal lawmakers, state lawmakers, and school officials should adopt to counteract the effect of implicit racial bias on school officials’ decisions to implement strict security measures (and other decisions school officials make). Implementing these recommendations will help create better learning environments that benefit students of all races.
In a Rare Case, School District Does Not Use Demographic Change As an Excuse to Give up on Integration
In 1970, the United States brought suit against the Tyler Independent School District in Texas. That lawsuit initiated what would become nearly a half-century desegregation case. Last week, both the United State and the school district agreed that the district had reached unitary status, meaning that it had eliminated the vestiges of discrimination to the extent practicable. The district court then entered an order closing the case.
For those that have read this blog before, you might expect a series of critiques to follow news that a court had relieved a district of its desegregation obligation, but based on the court's description of the facts, this one appears to be the real deal. The court explained that "the number and percentage of Hispanic students enrolled in TISD schools has risen dramatically since 1970, from 0.6% to 37.1% in the 2007-08 school year to 45.7% now." This is normally the type of fact that precedes the conclusion that demographic shifts have overwhelmed a district's desegregation efforts and, thus, it cannot be held accountable for current segregation patters. In fact, this was the exact line of reasoning in Freeman v. Pitts, in which the Court held that DeKalb County, Georgia, no longer needed to pursue integration in student assignments.
The district court in the instant case, however, did not have to go there because
[a] review of the parties’ statistical report, Joint Motion at 6-7, and the recent Compliance Report, reveals that there are few schools in any of the grade-level categories that reflect either a higher or lower percentage of student enrollment by race. None is significant when viewing the TISD enrollment statistics overall. Further, as the parties point out, of the eight categories of enrollment showing a somewhat higher or lower percentage compared to the averages for TISD overall, four of them reflect schools that are proceeding under one or the other of the Court’s two most recent attendance zone modifications approved in conjunction with the construction and opening of new or renovated schools. . . . These coincide with four of the five highest variations from the average, none of which is concerning.
. . .
Here, the enrollment statistics convincingly reveal that TISD has achieved the desegregation goal for student assignments in its schools at all levels. Further, having reviewed the statistical compilations from the last several years of TISD’s Compliance Reports, the Court finds that TISD has maintained this student assignment status and operated as a unitary system during that period.
First, assuming no egregious inequalities were papered over, credit is due the school district for taking steps to maintain integrated schools for an extended period of time, notwithstanding significant demographic changes in the district. Second, that this district had the capacity and commitment to do so begs the question of why the United States Supreme Court and lower courts have been so quick to absolve other districts of their obligations. As I have argued elsewhere, the mere instance of demographic shifts is entirely irrelevant to the question of whether a district has carried out its affirmative obligation under Green v. New Kent County to eliminate the vestiges of discrimination root and branch. The question of whether the district has discharged its duty should always precede the question of demographic shifts. Otherwise, a district acting in less than good faith could just stall in its desegregation efforts in hope that inevitable demographic shifts will eventually relieve it of its duty. Unfortunately, far too many districts seemed to adopt this route over the decades.
Third, demographic shifts raise causal questions, but demographic shifts are not dispositive on those questions. Demographic shifts might be a result of a district's student assignment policies themselves, might account for only a portion of segregation, might have produced segregation only because the district failed to act, or might have been the dominant cause of current segregation. Too often, however, courts have jumped to the last conclusion without giving any serious attention to the other possibilities. In effect, the occurrence of demographic shifts has acted as an affirmative defense for districts, placing the burden of proof on plaintiffs, which, of course, is counter to the doctrine articulated in Keyes v. New Kent County.
Fortunately, the Tyler Independent School District appears to have cut through all these legal questions and loopholes by simply doing the right thing.
Friday, August 26, 2016
EdBuild has released a report of what it calls the most segregated schools in the country. The goal of the study was "[t]o explore how school district borders isolate the neediest students [by] conducted[ing] an analysis of each of these boundaries across the country." It found that
A typical school district border in the United States separates a pair of districts whose student-age poverty rates differ by seven percentage points. The difference between the 50 most segregated neighbors ranges from 34 to 42 percentage points: an average that is more than five times the national mean. Among the 50 pairs, the wealthier school districts have a poverty rate of just 9 percent, while their neighbors average 46 percent— 400 percent higher. This means that wealthier peers enjoy a poverty rate that is less than half the national average; whereas their neighbors enroll over 150 percent more impoverished students than the average US district. The 50 higher-income areas are also far smaller enclaves of wealth– their schools serve 15,000 less students on average. Additionally, the average homes in the wealthier districts are worth $131,000 more than their neighbors’. Because local funds for education are tied to property wealth, high-poverty districts are not able to generate as many funds locally. In fact, even though several of the 50 high-poverty districts tax themselves at a higher rate than their neighbors, they generate $4,500 less per student from local taxes. The 50 most segregating borders are found in only 14 states. Ohio contains nine, more than any other state. Alabama has seven. New York and Pennsylvania each contain six. Twenty-nine borders, almost 60 percent of the top 50, are located in the Rust Belt region. States with countywide school districts, like those in the south and the west, are almost entirely absent from the list.
The five most-segregated were the following:
- Detroit Public Schools - Grosse Pointe Public School System: Difference in School-Age Poverty of 42.7 percentage points
- Birmingham City School District - Vestavia Hills City School District & Mountain Brook City School District Difference in School-Age Poverty of 42.3 & 42.0 percentage points
- Clairton City School District - West Jefferson Hills School District Difference in School-Age Poverty of 41.7 percentage points
- Dayton City School District - Beavercreek City School District & Oakwood City School District Difference in School-Age Poverty of 40.7 & 40.3 percentage points
- Balsz Elementary School District - Scottsdale Unified School District Difference in School-Age Poverty of 40.3 percentage points
The reports concludes that
When the Supreme Court established that desegregation orders could not be enforced across district boundaries, it significantly reduced the possibility of achieving meaningful integration. And because America relies so heavily on local property taxes to raise funds for education, the inability to cross district boundaries institutionalizes income segregation and contributes to vast funding disparities among public schools. In this report, we highlight the worst examples of socioeconomic segregation across school district borders as illustrations of a problem that can be seen all across the country. These divisions are harmful for all students, but especially for those who reside on the wrong side of these borders. There you will find 26 million children living within high-poverty school districts, effectively trapped by impermeable borders, while greater educational opportunities often are being enjoyed by their better-off peers right next door. The fact, too seldom acknowledged, is that district boundaries themselves compound the inequalities that our public schools were intended to conquer. In present day America, we allow invisible lines to determine the fate of our youngest and most vulnerable citizens. While many focus on policies that will bring more resources into these underserved districts, very few question why these lines exist in the first place. Our wealthy are consigning lower-income students to a lesser caste by cordoning off their wealth and hiding behind the notion of “local control”. We’ve created and maintained a system of schools segregated by class and bolstered by arbitrary borders that, in effect, serve as the new status quo for separate but unequal.
Thursday, August 25, 2016
On Tuesday, the U.S. Department of Justice filed a lawsuit against the state of Georgia alleging it unlawfully discriminates against students with disabilities through its GNETS program. GNETS stands for Georgia Network for Educational and Therapeutic Supports. The program, which is over forty years old, consists primarily of separate facilities designated for providing education and supports to students with behavioral disabilities. DOJ contends that the program violates Title II of the Americans with Disabilities Act, which prohibits unnecessary segregation on the basis of disability in the public schools. Tuesday’s filing represents the culmination of both years of investigation by DOJ and over a year of negotiations attempting to settle the matter with the state.
DOJ first put Georgia on notice of the potential for such a suit in July 2015, when it sent a Letter of Findings to Governor Nathan Deal and Attorney General Sam Olens. In that letter, DOJ alleged that the GNETS program created incentives for the placement of students with behavioral disabilities in segregated facilities and that those facilities provide opportunities and services that are not equal to those provided in regular education facilities. DOJ found that approximately two-thirds of students in the GNETS program are educated in separate facilities even though the students would benefit from inclusion in the general education environment. It also found that students in these facilities do not have access to art, music, physical education or other non-core classes, unlike students in non-GNETS programs. In addition, DOJ found many stand-alone GNETS program buildings lacked playgrounds, cafeterias, and central or sufficient air conditioning. Some of the stand-alone GNETS programs are housed in the buildings used to educate black students during Jim Crow era segregation.
In response Georgia closed some GNETS facilities and offered to improve others and review each GNETS student’s individualized education plan, which is the special education plan required for every student receiving special education services. However, as DOJ pointed out in its letter of intent to sue earlier this month, the state and school districts already have a legal obligation to review students’ IEPs. DOJ further concluded that improving segregated facilities demonstrates the state’s apparent unwillingness to dismantle a program of segregation.
Time of course will tell whether DOJ can succeed in largely dismantling the GNETS program. Even if the effort does succeed, the victory will be truly won only if students who would have otherwise found themselves in a segregated GNETS program are not simply segregated into separate classrooms within non-GNETS schools. Georgia’s general and special education funding scheme, as the DOJ suit suggests, incentivizes segregation. Being educated in buildings with playgrounds and adequate air conditioning is a vast improvement over being educated in settings without those basic services, but until the system no longer incentivizes segregation, the risk that students with disabilities will be segregated will remain.
Lawsuit Revisits the Question of Education As a Fundamental Right Under the U.S. Constitution, But Is There More To It Than That?
Plaintiffs in Connecticut have filed a new lawsuit against the state challenging the "inexcusable educational inequity and inadequacy" in its school "that prevent inner-city students from
accessing even minimally acceptable public-school options." The complaint argues that these problems are a result of:
First, Connecticut has instituted a moratorium on new magnet schools (Conn.
Gen. Stat. § 10-264l(b)(1); Public Act No. 09-6, § 22 (Spec. Sess.); Public Act No. 15-177, § 1), despite the fact that a large majority of Connecticut’s magnet schools consistently outperform inner-city traditional district schools.
Second, Connecticut’s arcane and dysfunctional laws governing public charter
schools (Conn. Gen. Stat. §§ 10-66ee(c)-(d), 10-66bb(a), 10-66bb(g)) prevent high-performing charter schools from opening or expanding in the State, despite the fact that Connecticut’s few charter schools consistently outperform inner-city traditional district schools.
Third, Connecticut’s inter-district Open Choice enrollment program (Conn. Gen.
Stat. §§ 10-266aa(c), 10-266aa(e), 10-266aa(f), 10-266aa(g), 10-266aa(h)) penalizes school districts that accept students from inner-city school districts, thus dooming the viability of the very program ostensibly designed to provide Connecticut’s students with quality public-school options.
As a remedy, plaintiffs ask:
for a simple declaration that would have immeasurable benefits for many thousands of children: By forcing Plaintiffs and thousands of other students to attend public schools that it knows are failing, while impeding the availability of viable public educational alternatives through the Anti-Opportunity Laws, Connecticut is violating students’ federal due process and equal protection rights. Connecticut should be required to take any and all steps necessary to ensure that neither Plaintiffs nor any other students within its borders are forced to attend a failing public school.
The case is a hard one to pigeonhole. On the one hand, it attempts what I and others have long advocated for: a reconsideration and overturn of San Antonio v. Rodriguez. As the Connecticut Mirror reports,
Forty-three years have passed since the U.S. Supreme Court narrowly ruled in the landmark San Antonio v. Rodriguez school-funding case that education was not a constitutional right and that the disparate spending on education for students from low-income neighborhoods was not a violation of the equal protection clause of the U.S. Constitution.
"The time has come for the federal courts to recognize a federal constitutional right to some minimal, adequate level of education. We felt Connecticut was a very good place to bring it," said Theodore J. Boutrous, one of the attorneys representing the seven student plaintiffs from low-income families.
Boutrous told reporters during a Wednesday conference call that the Rodriguez decision "left open the possibility that a claim like ours could succeed" since that case focused on school funding disparities while this lawsuit focuses on the limited options students have to leave failing schools.
. . .
Experts observing this case say a lot is at stake.
On the other hand, the case takes a factual angle in making out this claim that sounds a lot like free market thinking in education. Moreover, Students Matter, the group that has lead the constitutional challenge to teacher tenure, is backing the case. As a factual matter, the case would appear to be about student choice. It holds up the interdistrict magnet schools created as a result of the Sheff v. O'Neill litigation, which are designed to further integration, as important models for improving educational opportunities for minority student, but argues those type of magnets are not the only viable option. More charter schools, it argues, could create similar options to escape currently unconstitutional traditional public schools. In this respect, the plaintiffs are trying to, in effect, piggy back off of the success of Sheff.
My initial response is that there is a big gaping hole in this use of Sheff magnets. Sheff magnets are an integrative cure to a segregative injury. It is not clear that charters are a proportional or analogous remedy to anything, nor did I notice any indication that these charters would follow the lead of Sheff magnets. With that said, the complaint follows up its charter school claim with the suggestion that the state expand inter-district magnet opportunities, which is consistent with Sheff.
On the whole, however, these limited opportunities are evidence that the plaintiffs say shows that the state is failing to offer even a minimally adequate education, which Rodriguez indicated might be protected. The big question for me is what the plaintiffs really want. Is it to right the wrong of Rodriguez or to dress up a charter school plea in language that sounds appealing to a lot of civil rights advocates that might otherwise be adverse? I do not know enough about the key players in the case to have a firm opinion, but the prior constitutional challenge to teacher tenure offers some hints. What I am confident of, however, is that danger lurks if issues as weighty as Rodriguez are in the wrong hands.
Wednesday, August 24, 2016
Recent Decisions On IDEA Claim Exhaustion; AR Desegregation Consent Decree Upheld; and CA Education Quality Suit Again Rejected
Third Circuit Holds that Non-IDEA Claims Are Subject to IDEA Exhaustion Requirement
Plaintiffs must exhaust claims that implicate services within the purview of the Individuals with Disabilities Education Act, even if those claims are raised under a non-IDEA statute. Because a student’s complaint that a school board discriminated against him under Section 504 and the Americans with Disabilities Act claims raised educational injuries that implicated IDEA services, the claims raised were held subject to the IDEA exhaustion requirement. The case is S.D. v. Haddon Heights Board of Educ., 15-1804 (3rd Cir. Aug. 18, 2016).
California Appellate Court Again Rejects Education Quality Suit
The California Court of Appeal recently refused to reinstate the claims of the Campaign for Quality Education, a case alleging that California's current educational financing system violated the state constitution. In the appellate opinion in April, 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 appellate court found that the California Constitution did not require the state to provide a certain quality of education. In the this week's opinion, appellate affirmed the trial court's dismissal of the complaint for failure to state a cognizable claim and again cited its decision to "leave the difficult and policy-laden questions associated with educational adequacy and funding to the legislative branch." The latest opinion is Campaign for Quality Education v. California, No. A134423S (Cal. Ct. App. Aug. 22, 2016).
Eighth Circuit Holds That Arkansas School Districts’ Desegregation Consent Decree Duties Did Not End with Repealed Statute
In W.T. Davis v. Cutter Morning Star School, 15-1919 (8th Cir. Aug. 18, 2016), several individual school districts in Arkansas sued to end a desegregation consent decree, arguing that subsequent state legislation invalidated the decree. The case arose under the following facts: part of a 1991 consent decree to desegregate the Garland County, Arkansas school system adopted the Arkansas’ School Choice Act, which included a race-based limitation on students applying to attend a school outside of their resident school district. In independent litigation in 2012, a federal district court held that that provision of the Act violated the Equal Protection Clause. The Arkansas legislature then passed the 2013 School Choice Act, removing the race-based limitation on public school transfers and including a provision preventing a receiving school district from discriminating on the basis of race.
In the recent case, the Eighth Circuit held that because the 2013 Act had a carve-out for pre-existing judicial consent decrees that remedied the effects of past discrimination, the individual school districts could not show that the new law had an actual effect on the target of the decree and thus nothing warranted termination of the entire agreement.
New Corporal Punishment Data Should Remind Us That Zero Tolerance Suspensions and Expulsions Will Not Simply Fade Away
Yesterday, Ed Week reported that 109,000 students were paddled in school in the most recent year's data. These instances of corporal punishment occurred in 21 states and 4,000 schools. "Texas, Alabama, Mississippi, Arkansas, Georgia, Tennessee, and Oklahoma physically disciplined the most students." Poor students, moreover, appeared to be those most at risk. African-Americans were also at heightened risk. While only African Americans were only "22% of overall enrollment in schools using corporal punishment," 38% of students paddled were African American.
In my forthcoming book Ending Zero Tolerance, I make the argument that historical trends in corporal punishment offer an overall warning sign for our most vulnerable student populations: zero tolerance and excessive suspensions and expulsions will not go away simply because the general public turns against them. There will always be holdouts, and those hold outs occur in the very places where help has always been needed the most. And right now, suspension and expulsion has a lot further to go. Our public schools continue to suspend and expell more than three million students a year.
In the book, I explain that in 1997 in Ingraham v. Wright the Supreme Court
held that schools were free to corporally punish students and that schools need not even afford students with any due process prior to paddling them. The Court reached this conclusion notwithstanding the unsettling facts of the case. Speaking of the lead plaintiff, the Court wrote: “Because he was slow to respond to his teacher’s instructions, Ingraham was subjected to more than 20 licks with a paddle while being held over a table in the principal’s office. The paddling was so severe that he suffered a hematoma requiring medical attention and keeping him out of school for several days.” Ingraham’s classmate was regularly paddled for “minor infractions. On two occasions he was struck on his arms, once depriving him of the full use of his arm for a week.”
The Court offered up the possibility that students could sue the teacher or school under state tort law as the reason why it need not intervene. A close examination of the case, however, reveals that the Court simply thought it unwise for courts to become further involved with discipline. Better to let schools and society work it out. In one respect, the Court’s faith in schools and society was not misplaced. In the ensuing years, much of society and the education system came to see corporal punishment as barbaric, rephrasing it as “beating” rather than paddling. With this changed perspective, the number of districts and states that authorized corporal punishment sharply declined. By 2014, over half the states prohibited corporal punishment in schools. In those states that still permit corporal punishment, many school districts or schools prohibit the practice of their own accord. But in another respect, the Court’s faith in society and schools was sadly misplaced.
The reality for actual students in many communities remains relatively unchanged since 1977. Twenty-one states still permit corporal punishment, notwithstanding the social science and national consensus against it. The practice holds on the strongest in those places where it has always been the most troubling. Today, every state in the southeast permits corporal punishment and many schools there frequently impose it. Alabama, Mississippi, and Texas all paddled more than 30,000 students in the 2006–2007 schoolyear. In Mississippi, 7.5 percent of the student population was paddled each year.
The lesson for school suspensions is simple. Even if a national consensus turns against zero tolerance and harsh discipline, the shift will have little effect on the lives of students in many communities. Only judicially enforced rights can bring justice and fairness to these communities. Even if policy could eventually resolve the problem, courts should not ask students to wait on states and schools to respect their rights. Constitutional rights exist to protect citizens against the whims of local, state, and federal majorities. Each unjustifiably imposed suspension or expulsion is a deprivation of a right that demands a response. Each suspension or expulsion represents a potential educational death sentence and second-class citizenship.
Tuesday, August 23, 2016
Recent State Supreme Court Decision Signals that Momentum Continues to Build Against Zero Tolerance Policies by Jason Nance
In re Expulsion of A.D. describes the expulsion of a student in southern Minnesota for accidentally bringing a small pocketknife to school. A school liaison officer found the knife while conducting a random search for controlled substances using a drug-sniffing dog. When the dog alerted the officer to stop at A.D’s locker, he searched it. Although he did not find any controlled substances, he did find a 3-inch folding pocketknife in a purse hanging in the locker.
The principal and officer then called A.D. into the principal’s office for questioning. They asked A.D. if she knew why they had called her into the principal’s office. A.D. responded that she believed it was because she brought a pocketknife to school. She then explained that she had used the pocketknife at her boyfriend’s family farm the previous weekend to cut twine on the hay bales. She also explained that she normally removes the pocketknife from her purse before leaving home, but that day she had forgotten that the knife was in her purse until someone announced that the school was on lock-down. The principal informed A.D. that she believed that A.D. was telling the truth and was fully cooperating with them. Nevertheless, under the school district’s weapons policy, the principal recommended to the superintendent that A.D. be expelled for the rest of the school year. Under Minnesota’s Pupil Fair Dismissal Act, a school district is authorized to suspend or expel a student for a “willful violation of any reasonable school board regulation.” The school district’s weapons policy prohibited a student from possessing a weapon while at school, including all knives and blades.
The Constitutional Challenge to Teacher Tenure Has Failed in California, But Justice Liu Highlights One Problem
The constitutional challenge to tenure in California has ended with a whimper rather than a bang. Vergara v. State captured the national attention when a trial court held two years ago that teacher tenure and seniority statutes violated students constitutional right to education. As detailed here, the opinion was riddle with serious flaws. Thus, it was little surprise that the Court of Appeals overturned the trial court earlier this year. By then, however, the theory had already spread to New York and Minnesota courts and plans were afoot to bring similar claims elsewhere. Given the gravity of the trial court decision and the issues it decided, I was sure the California Supreme Court would have the final word no matter what. Yesterday, proved that theory wrong, as the California Supreme Court denied certiorari and left the Court of Appeals decision in place. Three Justices did dissent, arguing that the Court should have taken the case. To no surprise, Justice Liu--the former law professor and leading education scholar--offered this introductory explanation for why the Court should have taken the case:
This case concerns the constitutionality of California's statutes on teacher tenure, retention, and dismissal. . . . . One of our criteria for review is whether we are being asked "to settle an important question of law." (Cal. Rules of Court, rule 8.500(b)(1).) Under any ordinary understanding of that criterion, our review is warranted in this case. As the trial court observed: "All sides to this litigation agree that competent teachers are a critical, if not the most important, component of success of a child's in-school educational experience. All sides also agree that grossly ineffective teachers substantially undermine the ability of that child to succeed in school." The controversy here is whether the challenged statutes are to blame for the hiring, retention, and placement of grossly ineffective teachers. Because the questions presented have obvious statewide importance, and because they involve a significant legal issue on which the Court of Appeal likely erred, this court should grant review. The trial court found, and the Court of Appeal did not dispute, that the evidence in this case demonstrates serious harms. The nine schoolchildren who brought this action, along with the millions of children whose educational opportunities are affected every day by the challenged statutes, deserve to have their claims heard by this state's highest court.
Justice Liu goes on to distinguish the two different groups of students on whose behalf Vergara was brought:
Monday, August 22, 2016
Federal Court Blocks Department of Education's Transgender Rules, Increasing the Odds of the Supreme Court Taking Up the Issue
A federal district court in the Northern District of Texas just blocked the Obama Administration from enforcing its interpretation that Title IX ensures transgender students the right to use bathroom facilities consistent with their gender. On Sunday, in Texas v. United States, the district court wrote:
The Court finds that Plaintiffs have shown a likelihood of success on the merits because: (1) Defendants bypassed the notice and comment process required by the APA; (2) Title IX and § 106.33’s text is not ambiguous; and (3) Defendants are not entitled to agency deference under Auer v. Robbins, 519 U.S. 452 (1997).
The court further explained:
What Does the New Public Advertising Battle over Charter Schools Tell Us about Overall Education Debates?
Last week, the story was the potential rift between local minority communities and their national and state leaders. This week, the story may be the amount of money being spent to counteract those those national and state level leaders who oppose charter school expansion. The Boston Globe reports:
A new $2.3 million ad boosting the expansion of charter schools in Massachusetts lists the campaign’s top five donors on screen, in accordance with state law. But the singularly bland names, including Strong Economy for Growth and Education Reform Now Advocacy, give no hint of who is writing the checks.
Four of the five donors to the procharter committee are nonprofit groups that do not, under state law, have to disclose their funders, allowing the individuals backing the effort to remain anonymous.
The cloak of secrecy surrounding the financing of what could be the most expensive ballot campaign in state history has frustrated election officials and underscored the proliferation of untraceable money in political races across the country.
. . . .
The ballot campaign known as Question 2 — which would allow for the creation or expansion of up to 12 charter schools per year in low-performing districts — is expected to smash the $15.5 million that was spent, mostly by gambling interests, to defeat a 2014 ballot question that would have repealed the state’s casino law.
This influx of money could be coincidental, but one has to wonder whether it is a response to the charter lobby's sense that things are slipping away.
Friday, August 19, 2016
Massachusetts Locked Over Charter School Expansion, Offering a Glimpse of the Politics Playing Out at the National Level
The national opposition to charters from the NAACP and Black Lives Matter is strengthening the position of those at the local levels who might otherwise fold under pressures to expand charters. At least, that appears to be the case in Massachusetts. As some may recall, an advocacy group filed a novel claim in Massachusetts last year arguing that the state's limitations on the number of and funding for charters violated the state constitution's mandate of a quality education. The theory, in many respects, copied that of the constitutional attack on teacher tenure in California: if there is an education policy you do not like and you think your policy would produce better results, challenge the policy you do not like as an unconstitutional impediment to a quality education. In fact, it worked at the trial level in California. But as I demonstrate here, constitutional education claims require a lot more than this. The challenge to tenure was riddle with factual holes and the Court of Appeals eventually saw through them. But the charter claim in Massachusetts is not even theoretically valid.
The state's obligation is to provide a quality education in its traditional public school system, not create an alternative system of charters for those who want to exit broken schools. To be clear, broken traditional public schools are a constitutional violation, but the notion that courts could mandate charters as the remedy is an enormous stretch. Nonetheless, the threat this litigation posed and, more important, the rhetoric and attention it brought to the issue of charters appeared to turn the political tide. Numerous leaders in the state, including the governor, were voicing support for a change to charter laws in the state shortly after the lawsuit. Quite honestly, I thought a new charter law was a foregone conclusion a earlier this year.
The current story out of Boston suggests the pendulum is already swinging back. Democratic leaders are standing stronger against charter expansion. And given that this particular change being debated will disproportionately fall on minority schools and communities, their views at both the local and national level are sure to loom large. But as my posts the past two days show, the differences in opinion between local and national opinions can run deep. The interesting question in Massachusetts is the possibility that differences in opinion between state leaders and local communities may also run deep.
Thursday, August 18, 2016
Birmingham's Continued Defense for Pepper Spraying Students Shows Why Courts Are the Last Vestige of Hope for So Many Students
Last year, in a challenge to the use of pepper spray on students, the federal district court in J.W. v. Birmingham Bd. of Educ., 143 F. Supp. 3d 1118 (N.D. Ala. 2015), wrote:
The court was profoundly disturbed by some of the testimony it heard at trial. The defendant S.R.O.s uniformly displayed a cavalier attitude toward the use of Freeze +P—in a display of both poor taste and judgment, one defendant joked that Freeze +P is a potent nasal decongestant for individuals with sinus problems. Equally disturbing, the trial revealed that the defendant S.R.O.s believe that deploying Freeze +P is the standard response even for the non-threatening infraction that is universal to all teenagers—i.e. backtalking and challenging authority. Frankly, the defendant S.R.O.s' own testimony left the court with the impression that they simply do not believe spraying a student with Freeze +P is a big deal, in spite of their own expert's testimony that Freeze +P inflicts “severe pain.” The court also heard testimony that indicated several of the officers spraystudents with Freeze +P because it is easier than more hands-on approaches, even though those approaches cause students less pain than Freeze +P. Ultimately, the court believes that it was unnecessary for the defendant S.R.O.s to spray most if not all of the plaintiffs. Unfortunately for some of the plaintiffs, behavior that is unnecessary and disturbing is not automatically unconstitutional.
The court ruled in favor of the students and issued an injunction to prevent future abuses. Quite honestly, I thought the case was over at that point. The story, however, is back in the news. The defendants appealed the case to the 11th Circuit Court of Appeals and yesterday defended their position in oral argument. I have yet to get the transcripts of oral argument, but the brief argued that the district court seeks to control “(1) [school resource officer] duties; (2) SROs’ use of Spray; (3) SRO training; (4) and SROs’ decontamination of students that have been sprayed,” even though it is “the power of the City of Birmingham’s elected government to control the BPD” through the police chief."
In my new book Ending Zero Tolerance, I spend the first half of the book laying bare the irrationality and ineffectiveness of harsh discipline and policing in schools. I acknowledge the importance of new state and federal policies designed to limit certain egregious problems, but critique many of them as too slow coming and too narrow in scope to fix an endemic problem. In the end, I emphasize that constitution stands as the only constant final red line against abuses and irrationality in school discipline, particularly for the most marginalized students. While advocates must continue to press for policy reform, courts must play an important role as well. If there were any doubt in courts' role, it ought be vanquished by the fact that Birmingham for years had been spraying its students with pepper spray for minor misbehavior in the first instance and, second, that Birmingham is audacious enough to demand discretion to carry out similar actions in the future.
This story also confirms another major premise of the book: no matter how much progress we may make in certain cities and states, there will always be a number of hold-outs. In these hold-outs locations, students cannot turn to the political process. They can only hope that the institution designed to protect against the tyranny of the majority--courts--will step forward.
Wednesday, August 17, 2016
Making Sense of African American Support for Charters: Affirmative Support or a Rational Response to Derelict States?
I rarely come back to a subject on consecutive days, but the headline of story this morning and the fact that so much was left unsaid in my post yesterday offers a compelling occasion. This morning, Keli Goff penned an article titled "NAACP Calls for Charter School Ban, Leaves Black Parents and Children Behind." The story led with the statement that "Groups that want to be the voice of people of color have to listen to all people of color, not just those reciting one party’s platform and talking points." Later she cites data that "that 65 percent or more of black parents in Louisiana, New Jersey, and Tennessee support charter schools—and that 70 percent of black voters believe in some from of educational choice for parents."
I cannot quibble with her basic factual points. They were at the thrust of my article yesterday and my conclusion that the "charter school gig" was far from up. What bears more discussion, however, is why so many families and communities want them. Is it the intrinsic merit of charter schools? Is it distrust of the traditional system? Or is it that existing opportunities are so deficient that they feel forced to accept consolation prizes like charter schools or vouchers?
No one motivation or answer fits all situations. No doubt, there are many excellent charter schools out there and the hope that one can secure a seat in one of those schools can be enough to drive politics. On top of that, the charter industry has a lot of incentive to oversell those success stories. The large majority of charters, however, do not fall in the success story category and a large chunk of families are not motivated by a lottery ticket mentality when it comes to their own children, although some surely succumb to it.
Tuesday, August 16, 2016
At its recent national convention, the NAACP passed a resolution calling for a moratorium on charter schools. At roughly the same time, Black Lives Matter issued its policy agenda for the nation, which also included a moratorium on charter schools. The NAACP offered this justification for its position:
- “Charter schools have contributed to the increased segregation rather than diverse integration of our public school system.”
- “Weak oversight of charter schools puts students and communities at risk of harm, public funds at risk of being wasted, and further erodes local control of public education.”
- " [R]esearchers have warned that charter school expansions in low-income communities mirror predatory lending practices that led to the sub-prime mortgage disaster, putting schools and communities impacted by these practices at great risk of loss and harm…”
This turn of events is worth special note because the African American community's initial support for charters was a driving force for their adoption. Without state level support and the local demand of African American communities, I would imagine that charter school expansion and enrollment would be only a fraction of its current levels. But now that we have so many charters, I wonder if these new positions really have the capacity to reverse the tide.