Monday, August 15, 2016
First, let me say that that what I have learned about Joseph Kennedy, an assistant football coach at a public high school in Bremerton, Washington, is mostly from second-hand reporting. His story has burned up the the internet and airways with hard line positions on both sides, so much so that finding primary reporting is hard.
Here are what I understand to be the facts. For the past several years, Mr. Kennedy has engaged in religious exercises, apparently before and after games. Before games, he prayed. After games, he prayed and/or offered some sort of religious "inspirational talk" at mid-field. Sometime in the last year, the school district sent him a letter telling him to stop. Kennedy is said to have continued his activities in defiance. It is my understanding that he was fired.
When the Liberty Institute learned of this, it came to his defense indicating it would sue the school district for religious discrimination. Since then, politicians, both local and national, have gotten into the fracas. According to the Seattle Times, forty-seven members of Congress sent a letter in support of Kennedy. He has apparently now filed his lawsuit, giving the story legs again.
Once one cuts through the rhetoric, it seems to be that this case boils down to a few key facts. First, was Kennedy, in fact, leading a prayer before games? The law is clear that the state cannot lead religious exercises or direct others to do so. The assistant football coach is a state actor. Thus, he cannot lead students in a prayer.
Thursday, August 11, 2016
Lawsuit Challenges South Carolina's Disturbing Schools Act, Can It Also Challenge How We Think About Schools Discipline?
Last year, the video footage of a high school female being jerked and flipped out of her desk, thrown to floor, drug across it, and then handcuffed captivated the nation. Its shock value carried it for nearly a week and was also enough to prompt some legislative hearings on the state's Disturbing Schools Act, which was the authority under which the officer purported to act. But alas, nothing came of it. The law remains in place. As is so often the case, these incidents are perceived as aberrational rather than a fundamental aspect of the discipline systems in our schools. Once the story passes, so does the impetus for change.
Yesterday, the ACLU revived the issue and the prospects of change, at least, on the issue of the Disturbing Schools Act. It filed a case in federal district court arguing that the criminal statute authorizing the arrest and punishment of individuals who disturb school violates due process. The Act is so broad that it, in effect, permits law enforcement to arrest students at their discretion for almost anything. With such broad power, students and teachers have no way of know exactly what does or does not violate the law. This, the ACLU argues, violates basic due process and liberty principles.
The story of one of the plaintiffs in the case, Niya Kenny, makes this point clearly. Niya was in the classroom last year when the officer drug the other student to the ground. Niya, understandably shocked by the incident, did what almost every other person under the age of thirty or so does in America when they see something like this: she pulled out her phone and videotaped it. For this, she too was arrested and charged under the Disturbing Schools Act. Regardless of whether school rules prohibit the possession of cellphones, their use during class time, or anything else, the idea that this type of activity could be construed as a crime is surely something I, a law professor, never would have considered. I could only imagine what Niya must have thought when the cuffs went on.
Maybe the most shocking aspect of this story, however, has been those who have defended the expansion of law enforcement inside schools and their use of violence on students over the past year. The response I have gotten is that I do not know how dangerous schools really are and, even if they are not, we should err on the side of caution. It is, after all, our children we are talking about. My position would purportedly leave our children defenseless against marauders and gun-carrying high schoolers.
A few days ago the New York Civil Rights Coalition sent a letter to Moraine Valley Community College to
call your immediate attention, and to request your formal response, to the Chicago Tribune August 4th piece, and in other media, about a college course at Moraine Valley Community College reportedly exclusively for black (African-American) students.
Especially concerning to us are quotes attributed to college publications and officials that explain and seemingly justify the racial restrictions on enrollment in the required college course, “College: Changes, Challenges, Choice.” According to published reports and the Chicago Tribune piece, a catalog of course listings Note specifies that registration to a section of the aforementioned course is “limited to African-American students.” The piece quotes the college’s assistant director of communications, Jessica Crotty, as explaining that the course, which meets for 8 weeks, is required to be taken by students in their first year. The catalog describes the course as one that “provides [the student] an opportunity to assess your purpose for college, assess your study strategies, set college and career goals, examine your values and decision-making skills, and develop an appreciation for diversity.”
In explaining and, arguably, defending racial restrictions on some sections of the course, Ms. Crotty is quoted as saying: “Sometimes we set aside sections for specific populations, including veterans and older students.” (Emphasis added). Ms. Crotty added, and I quote: “Students feel comfortable and are more likely to open up because they’re with other students who are like them.” (Emphasis added),
I find it strange indeed that a course that purports to guide and develop students’ “appreciation for diversity” employs racial separatism and segregation as acceptable and effective means for teaching that “appreciation” for diversity. Most shockingly, I find it incredible and disingenuous on the part of any educational institution and/or higher education official to equate offering courses in racially restrictive ways to that of clustering students in focus groups that are not themselves categories prohibited by law or regulation.
Worse, we are shocked and appalled by the notion that racial segregation can be argued for, much less justified, on the premise that statistical data or “social science evidence” may exist somewhere that allegedly supports the college’s policy and/or practice of restricting or conditioning enrollment in a course of study in any academic program by race or skin color. Such argumentation obscures and defies everything we know about the wrong-headedness of classifying and treating students differently by reason of their “race”, and separating them by race and/or skin color in the academy.
Separation or segregation by race defies state and federal laws, and Supreme Court decisions that prohibit differential treatment of black students or of other students because of their skin color or groupings that are premised and justified by stereotypes about their racial group.
Tell me, please, that these media reports are errant.
Tell me, please, that Moraine Valley Community College is not actually segregating students in academic courses by race and/or skin color, in ways that separate them from their peers of other skin colors and in ways that bar any student from enrolling in a course designated for students of a particular race only.
In explicit terms, it is not sufficient for the college to offer psychobabble rationalizations for reprehensible racial classifications and legally and morally suspect groupings. We find it especially abhorrent for a college to project and invoke the bogus argument that any principled or singular objection to classes and courses for blacks only is itself a manifestation of [whites’ and others’] hostility or racism towards blacks. That’s racial and sheer idiocy. Rather, the grouping of black students in a course designated only for “them” is the practice of racism; it is the same as the college decreeing that sections of a course will be restricted to students who are “white/Caucasian,” and, therein, justified in the guise that students of a certain skin color supposedly feel more comfortable in discussing sensitive matters with peers of ‘”their own kind.”
Classes for “whites only” and/or classes for “blacks only” are one and the same—sheer racism. Such racial restrictions violate every tenet of equal protection under the law, and of academic integrity—notably the open pursuit of knowledge. I need not recount here or remind you what the federal and state laws require and prohibit. Indeed, Moraine Valley Community College’s web site and mission statements make clear that its leadership and trustees are keenly aware of the legal framework and guidelines for avoiding discriminatory policies and practices: “It is the policy of Moraine Valley Community College not to discriminate on the basis of race, color…” or “conduct in its educational programs, activities or employment practices” discrimination based on race, color. Thus, we cannot abide the alibis and excuses offered by any official or spokesperson for a community college for registering students—or barring students’ registering or enrollment to any academic offering—on the basis of any student’s race or skin color.
The mocking of the law and the sheer arrogance implicit in decision-making based on race and skin color “differences” are at hand. Any policy or effort that restricts enrollment to a college course on such objectionable and prohibited racial grounds—is profoundly obvious and disturbing. Such racial discrimination raises troubling and substantial questions about the college’s commitment to state and federal law—indeed to the rule of law—and to its commitment to the open pursuit of knowledge which is a fundamental of the academic experience and mission. To defy the law and regulations and academic principles in such a flagrant fashion suggests the lowering if not outright abandonment of rigorous standards of the college’s accreditation. That is why we are addressing this open letter to the college’s president and to the president of the Higher Learning Commission, the college’s accrediting authority. We are also copying this letter to the Chair of the Board of Trustees, because it is our belief that the trustees share responsibility for upholding the law and for fulfilling the college’s academic mission without compromise with fads and racist shenanigans.
With confidence, we are of the opinion that a self-respecting board of trustees and Higher Learning Commission will promptly recognize and act on their duty to intervene and to correct any violations of law and public policy and to remedy any diminution of academic standards. The imposition of any racial qualification or restriction on any student, of any race, to enroll in any college course because of his/her race or skin color, cannot stand. The objection to such race-based restrictions must by definition take exception to any purported rationalization that the affected or excluded racial group will not contest the racial classification. Likewise, we are not impressed with the argument that the affected minority group or the excluded members of other racial groups may “opt” to enroll in alternate courses that do not have the racial restrictions.
Let us be clear; racial segregation as offered or practiced by a community college is objectionable on legal and educational grounds. That there are some blacks, and whites, who advocate such restrictions on course enrollment, matters not the least bit to us. In our view, racial restrictions and qualifications for a course are improper classifications and are evidence of discrimination per se, in purpose and effect. As my mentor, Dr. Kenneth B. Clark, the social psychologist, observed while he was alive—in objecting to the then fashion of separatist fads that were sweeping some college campuses, commented:
“In 1954 [when the U.S. Supreme Court outlawed enforced segregation in public education] it would have been the consensus in the black and white liberal communities that white racism would have gained its greatest triumph had it been able to persuade its black victims that segregation was not only acceptable but desirable in itself, and that the justification for this separatism was color alone.’
Segregation by race then and today is not acceptable; and it is not desirable.
Higher education leaders should express the strongest opposition and outrage over this latest fad and manifestation of racism—that of stereotyping, steering, and segregating students by their “race” and/or skin color into separate courses and classrooms.
If these reports that I have described to you have any ring of truth to them, we urge you to rethink and remove all racial restrictions and qualifications for course-taking at Moraine Valley Community College, forthwith.
The College President, Sylvia Jenkins, immediately recanted, indicating that the "decision has been made to remove all racial restrictions and qualifications for course-taking at Moraine Valley Community College." If winning were only that easy in other instances.
Wednesday, August 10, 2016
Unequal Access Report: Twenty Percent of California's Charter Schools Have Exclusionary Admissions Policies
The ACLU Foundation of Southern California and the Public Advocates have released Unequal Access: How Some California Charter Schools Illegally Restrict Enrollment. Unequal Access reports that over 20% of California’s charter schools (about 253), have exclusionary admissions policies. At least 22 of those schools have policies that expressly exclude low academic performers, the very set of students who are often cited to justify charter creation. Cribbed from the report’s summary:
Although charter schools may be privately controlled and receive non-government funding, they are part of California’s public education system. The California Constitution requires all students to have equal access to educational opportunity, and the state legislature made this principle clear in the California Charter Schools Act, which plainly requires charter schools to “admit all pupils who wish to attend.” Except for limitations due to space, charter schools may not enact admissions requirements or other barriers to enrollment and must admit all students who apply, just as traditional public schools cannot turn away students.
Our review of California charter schools’ reveal that over 20% have written policies reveals that illegally prevent students from enrolling or remaining at their schools because the policies:
- Deny enrollment to students who do not have strong grades or test scores.
- Expel students who do not maintain strong grades or test scores.
- Deny enrollment to students who do not meet a minimum level of English proficiency.
- Discourage or preclude immigrant students from attending by requiring parents/guardians or
- students to provide Social Security numbers or other citizenship information before enrollment.
- Select students based on onerous pre-enrollment requirements such as student or
- parent/guardian essays or interviews.
- Refuse to enroll students unless their parents/guardians volunteer or donate money to the school.
The report recommends that charter school operators eliminate all exclusionary admission requirements that restrict student enrollment on the above grounds.
On May 19, 2011, F.M., a thirteen-year-old seventh grade student at Cleveland Middle School of Albuquerque Public Schools, generated several fake burps during class, causing several students to laugh. The teacher ordered F.M. to stop, but F.M. ignored her. The teacher then asked F.M. to leave the classroom and sit in the hallway. F.M. complied, but once in the hallway, he continued to disturb the classroom by leaning into the entranceway of the classroom to burp and laugh. At that point, the teacher requested assistance with the student on a school-issued radio. A school resource officer (SRO) appeared in response to her request. Based on what the SRO observed and heard from the teacher, the SRO decided to arrest F.M. for violating N.M. Stat. Ann. § 30-20-13(D), which says that “[n]o person shall willfully interfere with the educational process of any public or private school by committing . . . any act which would disrupt, impair, interfere with or obstruct the lawful mission, processes, procedures or functions of a public or private school.” The SRO conducted a pat-down search on F.M. and found nothing, handcuffed him, put him in a patrol car, drove him to a juvenile detention center, and booked him. The SRO later admitted that F.M. did not pose a flight risk and was not combative, but was cooperative. After the juvenile detention center completed its risk assessment of F.M., it released him to the custody of his mother with no further actions. The school, however, imposed a one-day suspension. F.M. served his suspension and did not return for the remainder of the school year.
F.M.’s mother filed a suit against the SRO on behalf of her son claiming that his Fourth Amendment rights were violated when her son was arrested and handcuffed. She claimed that any reasonable officer should have known that burping was not a criminal offense and that the force used to facilitate the arrest was unnecessary. The United States Court of Appeals for the Tenth Circuit, however, upheld the lower court’s dismissal of the case, awarding the SRO qualified immunity. According to the court, the plaintiff had failed to establish that the SRO violated a constitutional right of F.M.’s that was clearly established at the time of the alleged unlawful activity. The Tenth Circuit based its ruling primarily on its determination that the SRO’s understanding that he had probable cause to arrest F.M. under section 30-20-13(D) was “objectively reasonable—even if mistaken.”
While one could disagree with the majority over whether the SRO violated F.M.’s “clearly established” constitutional right (as one circuit judge on the panel did), to me a larger question remains that the court could not address: why do allow law enforcement officers to become involved in student behavioral matters that do not endanger other members of the school community? This is not to say that we shouldn’t hold students accountable for misbehaving in the classroom. We should. But as I explain here, the consequences of involving a youth in the justice system are severe for both the youth involved and for our nation as a whole. In fact, even an arrest that does not ultimately result in an incarceration can have detrimental, life-altering effects on students. Several empirical studies confirm that just an arrest often leads to lower academic achievement, dropping out of school, and future involvement in the justice system. Furthermore, overly-punitive school environments generally do not lead to positive outcomes, even for those students at the school who do not misbehave. Empirical studies suggest that an overly-punitive school environment can alienate students, destabilize the learning climate, foster more disorder in the long run, and impede academic achievement for all students at the school.
As I explain elsewhere, schools do not have to (and should not) over-rely on SROs, harsh surveillance measures, and exclusionary tactics to maintain safe and orderly learning climates. Rather, there are other evidence-based measures that schools can implement to promote student discipline and safety without putting more students on a pathway from school to prison. But if schools do choose to rely on SROs, it is essential that they enter into memorandums of understandings (MOUs) to ensure that SROs do not involve themselves in routine discipline matters with students, like burping in a classroom.
Monday, August 8, 2016
First Circuit: Good Academic Performance Is Relevant But Not Determinative For Special Education Eligibility
The First Circuit published an opinion last week dealing with the ambiguity of the "need" provision in the Individuals with Disabilities Education Act. The parents of a seventh-grader, called Jane Doe in the opinion, sued the local school district after it decided that Jane did not require special education in reading fluency because she was doing well in school. Jane had received special education services for years to improve her reading skills. Jane's parents argued that the "need inquiry" under the IDEA should determine whether a child needs special education to remediate the underlying disability. The school district argued that the need inquiry should determine whether a child needs special education to benefit from the school curriculum. If the child is doing well academically, the district argued, the child no long qualified for special education services. The case centers around the text of Section 1401(3)(A)(ii) of the IDEA that provides that a child determined to have one of the qualifying disorders under the first prong must also, “by reason thereof,” “need[ ] special education and related services” to be eligible for special education. 20 U.S.C. § 1401(3)(A)(ii). The First Circuit found that "Jane's overall academic performance could potentially be relevant in determining whether she has a reading fluency deficit, the district court erred in relying on such evidence without regard to how it reflects her reading fluency skills." The circuit court vacated and remanded the judgment in favor of the district, holding that the district court weighed Jane's overall academic achievement too heavily when the child's deficiency in reading fluency was sufficient by itself to support eligibility and that the district court afforded excessive deference to the hearing officer's determinations. In a concurrence, Circuit Judge Lipez offered guidance cautioning courts to not solely look at "an absolute standard of educational performance, the satisfaction of which would automatically disqualify a child from eligibility under the need prong." The case is Doe, v. Cape Elizabeth Sch. Dist., No. 15-1155, 2016 WL 4151377 (1st Cir. Aug. 5, 2016).