Friday, September 30, 2016

Nevada's Supreme Court Declares Voucher Program Unconstitutional

The Education Law Center offered this summary yesterday:

Education Law Center welcomes the Nevada Supreme Court decision in Lopez v. Schwartz firmly declaring the state's Education Savings Account (ESA) voucher program unconstitutional and permanently blocking its implementation.

The Court's ruling makes clear that the Nevada Legislature violated a constitutional prohibition against the use of public education funding for any purpose other than the operation of the public schools. The ESA voucher program would have diverted funds from the public schools for private education expenditures.

This decision strikes at the heart of the ESA voucher program, which was designed to remove significant amounts of funding from public school budgets to pay for private school tuition and other expenses, even for the wealthy. The court's sweeping ruling permanently blocks the program from being implemented in the future.

"The Court confirmed that the parent plaintiffs' claims were correct - the state constitution expressly directs that funds appropriated by the Legislature for public education be used for that purpose and that purpose alone," said David G. Sciarra, ELC Executive Director, and, along with ELC attorney Jessica Levin, a member of the pro bono legal team representing Nevada parents and children in the voucher lawsuit.

ELC is a partner in Educate Nevada Now (ENN), a Nevada campaign in support of public education founded by the Rogers Foundation. ENN and the Rogers Foundation provided crucial support in the voucher lawsuit. With implementation of the voucher program now blocked, ELC will continue to work with ENN and the Rogers Foundation to improve the educational experiences of the half million children in Nevada's public schools.

For more information about Lopez v. Schwartz, please visit these ELC web pages.

While these cases challenging the use and misuse of public education funds have been muddled over the years, I get the sense that recent courts have been slightly more willing to consider seriously the problem of using funds that state constitutional clauses commit to public schools for vouchers and charters.  Recall last year that the Washington Supreme Court struck down a the state's charter statute because of the conflicts it created in regard to the states constitutional obligations in regard to traditional public schools.  Unfortunately, courts have been less willing to seriously consider the constitutional problems that arise when states simply underfund public schools as a general principles.  See here.

Get the recent Nevada Supreme Court decision here: Download 16-30306


September 30, 2016 in Charters and Vouchers | Permalink | Comments (0)

Thursday, September 29, 2016

U.S. Supreme Court to Weigh Level of Benefit Required by Special Education Law by Mark Walsh

At Education Week's School Law Blog, Mark Walsh covers the U.S. Supreme Court's cert grant today in Endrew F. v. Douglas County School District RE-1 (No. 15-827), in which the Court may resolve a circuit split on the issue of what level of educational benefit must a child receive under his or her individualized education program, or IEP, for a school district to have provided a free appropriate public education under the Individuals with Disabilities Education Act? Walsh's article is below:

The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled last year in the case of a Colorado child with autism that because the child's public school IEP had provided him with "some educational benefit," the Douglas County district had provided a "free, appropriate public education" under the IDEA. The 10th Circuit court thus rejected a private school reimbursement for the parents of the boy identified as Endrew F. after the parents had pulled him from public school amid the dispute over his 5th grade IEP.

In an August 2015 decision, the 10th Circuit court panel acknowledged that several other federal courts of appeals have adopted a higher standard that requires an IEP to result in a "meaningful educational benefit." But the 10th Circuit, agreeing with a lower court in Endrew F.'s case, said that a key 1982 Supreme Court precedent on special education, Board of Education of the Hendrick Hudson Central School District v. Rowley, merely requires an IEP to provide "some educational benefit." 

"The courts of appeals are in disarray over the level of educational benefit that school districts must confer on children with disabilities to provide them with a free appropriate public education under the IDEA," says the appeal filed on behalf of Endrew F. and his parents by his Denver lawyers and the Supreme Court Litigation Clinic at Stanford Law School. "This court should use this case—which cleanly presents the legal issue on a well-developed set of facts—to resolve the conflict over this important question."

In May, the Supreme Court invited the U.S. solicitor general to file a brief expressing the views of the Obama administration. On Aug. 18, Acting Solicitor General Ian H. Gershengorn filed a brief that urged the justices to take up the appeal.

"This court should grant certiorari and overturn the 10th Circuit's erroneous holding that states must provide children with disabilities educational benefits that are 'merely ... more than de minimis' in order to comply with the IDEA," the brief states. "The 10th Circuit's approach is not consistent with the text, structure, or purpose of the IDEA; it conflicts with important aspects of this court's decision in ... Rowley, and it has the effect of depriving children with disabilities of the benefits Congress has granted them by law."

Lawyers for the Douglas County district argued in briefs, including one filed in response to the solicitor general's recommendation to grant review, that the asserted split among the federal appeals courts is "shallow" and that only the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, "has consistently applied a purportedly more demanding 'meaningful benefit' standard."

"The government contends that the IDEA demands something 'more robust'" than the "some benefit" standard, says the school district brief. "The question is whether a state has satisfied its substantive obligations if the IEP it offers provides a child more than a de minimis educational benefit. Under Rowley the answer is yes."

Despite the district's arguments, the Supreme Court on Sept. 29 granted review, one of eight cases the justices added to their docket just before the formal start of their new term on Oct. 3.

The Endrew F. case is likely to be argued sometime early next year.

September 29, 2016 in Cases, Special Education | Permalink | Comments (0)

Has School Funding Litigation Had a Positive Effect on Teachers and Their Salaries?

Wallet Hub recently ranked the best and worst states to be a teacher.  The states with the lowest cost adjusted salaries are:

  1. Hawaii — $34,063
  2. South Dakota — $41,000
  3. Maine — $43,792
  4. West Virginia — $44,337
  5. Arizona — $46,029

Business Insider pointed out that "the two lowest-paying states happen to be on opposite ends of the cost-of-living spectrum: While Hawaii is notoriously expensive, South Dakota often ranks as one of the cheaper places to live in America."

It is also worth filtering these states through the lens of school finance litigation.  New Jersey ranks as the best place to teach and, incidentally, has had the most effective school finance litigation in the nation.  Illinois and Virginia, however, rank as the 3rd and 6th best states and yet have had some of the most miserable school finance results, with courts never acting to enforce their constitutions in any respect.  The same could be said of Pennsylvania, which ranked 12.

At the bottom of the ranking is a more consistent list of states that have not experienced wins in school finance litigation or where courts have recently refused to enforce earlier decisions.  Looking at the bottom and top of the list together, one might posit that the presence of school finance litigation and victories alone do not lead to good teaching environments, but the absence of litigation victories make poor environments more likely.  Running that complicated analysis is beyond the scope of this short essay, but another more likely possibility is that most courts have simply mismanaged the issue of teachers in the context of school finance litigation. Thus, winning or loosing a school finance case has relatively little effect on the issues that matter the most in teaching.

In Taking Teacher Quality Seriously, I argue:

Although access to quality teachers is one of the most important aspects of a quality education, explicit concern with teacher quality too often has been conspicuously absent from past [court decisions] over the right to education. Instead, past [court decisions have] focused more on the broader question of funding. Though that litigation has narrowed gross funding gaps between schools in many states, it has not been enough to change what matters most: access to quality teachers.

This Article proposes that courts ensure access to quality teaching rather than the more amorphous right to adequate educational opportunities. The recent constitutional challenge to tenure suggests a theoretical step in this direction, but the focus on teacher tenure alone is misplaced. Eliminating tenure, without addressing more important fundamental challenges for the teaching profession, may just make matters worse. Thus, this Article argues for a broader intervention strategy that focuses on whether states equally distribute existing quality teachers and whether states take the various steps necessary to ensure the supply of quality teachers.

A more detailed discussion of the key issues involved in improving teaching quality is available here.


September 29, 2016 in School Funding, Teachers | Permalink | Comments (0)

Monday, September 26, 2016

Reuters: Supreme Court May Wait To Decide Transgender School Bathroom Cases

Lawrence Hurly reported for Reuters yesterday that the U.S. Supreme Court may be reluctant to take up  Gloucester Co. Sch. Bd. v. G.G., the case of 17-year-old transgender student Gavin Grimm, who was barred by his school from using the the boys’ restroom at school, despite him having a state ID that identifies him as male. This upcoming school year, Grimm will have to use a separate single-stall restroom. On August 3, the Supreme Court granted an emergency stay recalling the mandate of the Fourth Circuit Court of Appeals that would have allowed Grimm to use a bathroom congruent with his gender identity. The stay reinstated the the Eastern District of Virginia's June 2016 preliminary injunction order denying Grimm's request to use the boys’ restroom. Hurly predicts that the short-handed Supreme Court will be cautious about granting certiorari, particularly because the decision could end in a 4-4 deadlock and because the Fourth Circuit's ruling was the first decision of its kind in the federal circuits. Hurly's article is here.

September 26, 2016 in Cases, News | Permalink | Comments (0)

Friday, September 23, 2016

Is Discipline Reform Heating Up in Connecticut?

The issue of discipline reform is beginning to gain traction in Connecticut and WNPR in Connecticut put together a nice hour-long show on school discipline.  My opinion is slightly biased since I was able to participate, but I was joined by a lot of great people who add real depth to the issues.  The guests include:

Download or listen to the show here.

September 23, 2016 in Discipline | Permalink | Comments (0)

Wednesday, September 21, 2016

First Circuit Holds That Voting District Does Not Have To Be Redrawn In "Prison Gerrymandering" Case

The U.S. Circuit Court of Appeals for the First Circuit ruled Tuesday that a city did not have to redraw its district lines for school committee and city council seats when one ward of the city included  prisoners in a state correctional institution, many of whom are barred from voting. In overturning a federal district court ruling earlier this year holding that Cranston, R.I.'s inclusion of a prison population in a voting district violated the Equal Protection Clause, the First Circuit instead relied on the Supreme Court's decision in Evenwel v. Abbott (2016), which held that the "one person, one vote" principle allows a state to design its legislative districts based on total population. The First Circuit case arose when plaintiffs represented by the American Civil Liberties Union sued the City of Cranston when it decided to count the more than three thousand inmates at the state Adult Correctional Institution in Cranston's Ward 6. The inmates accounted for a quarter of Ward 6’s total population even though under state law, the prisoners were actually residents of their home counties for most other legal purposes, including voting, for those serving a non-felony sentence. The plaintiffs contended that including the prison population inflated Ward 6 constituents' voting power to the level as the other wards even though Ward 6 had fewer residents who had a political interest in local elections. The First Circuit rejected those arguments, noting the that the Supreme Court has deferred to state legislative decisions that included non-voters, such as transients or persons denied the vote, as part of districts'  population "so long as the apportionment scheme does not involve invidious discrimination." The case is Davidson v. City of Cranston, No. 16-1692 (1st. Cir. Sept. 21, 2016).

September 21, 2016 in Cases | Permalink | Comments (0)

New York Trial Court Dismisses Charges That State Underfunded Small City Schools to the Tune of $1.1 Billion

On Monday, a New York trial court ruled in favor of the state in what has been called the Small Cities School Funding litigation.  The plaintiffs’ claim centered on a couple of key facts.  First, New York’s highest court previously held that the state was obligated to provide students with a sound basic education and that adequate funding was part of that duty.  Thus, the court directed the state to reform its funding system and devise a system reasonably calculated to achieve that end. 

Second, one of the ways of doing so was to engage in fact based analysis of the cost of meeting student need.  The method the state settled on was a model schools approach that looked at what the most economically efficient and successful schools were spending on education.  From this, the state could identify a base cost for education and then apply additional weights to account for variances in local costs and demographics. Third, in in 2007-08, the state adopted a budget based on this method.  Fourth, in 2009, the state froze the budget and enacted new cuts.  Fifth, since then, glaring deficiencies in educational quality have risen in the district.

The premise behind plaintiffs’ theory, as I see it, is clear.  If the 2007-08 budget was adequate, subsequent reductions necessarily raise the possibility of a constitutional violation.  If the 2007-08 budget only met the most minimal level of adequacy, a reduction would be a clear constitutional violation.  If the 2007-08 budget exceeded minimal adequacy, a reduction, depending on its size, might also violate the constitution.  According to plaintiffs’, the reduction in the eight plaintiff districts amounted to 1.1 billion over five years.  At that size, it would seem altogether likely that the funding had dipped below adequate.  Plaintiffs', of course, introduced weeks of evidence to demonstrate this point at the local level.  In particular, they sought to show low outcomes, glaring deficiencies in the essential resources  previously outlined by higher courts, and a lack of funding caused both the input and output deficiencies.

The trial court decision, however, frames plaintiffs’ claims differently, indicating that plaintiffs’ position was that the state is prohibited from reducing its budget once it is enacted.  I suppose one could state it that way, but this ignores the context in which plaintiffs’ claims arose.  The issue was not simply whether the state could reduce or freeze its budget but whether a budget that comes in well under the state’s own estimation of a rational and adequate budget is unconstitutional.  In other words, can the state fund education at level that it, in effect, has admitted is below adequacy.  Moreover, implicit admissions aside, plaintiffs sought to affirmatively show that educational inputs and outputs were producing a constitutional violations (regardless of what budget the state did or did not adopt in 2007 and beyond).

Another way of viewing the case is through burdens of proof.  Generally speaking, the burden of proof is on plaintiffs to demonstrate a constitutional violation.  This case, however, offers an excellent example of when the burden of proof might more appropriately rest on the state.  As I detail elsewhere, school finance violations appear to have run rampant during and after the recession.  Part of the problem is that states believed or knew they could get away with it.  They could under-fund education for years and, worse case scenario, plaintiffs would be tasked with a number of difficult evidentiary burdens that would take even more years to sort out.  Even when plaintiffs establish their case, courts have not forced states to retroactively fill budget gaps that they create.  It is enough to fix them moving forward. 

As a result, state legislatures may have little incentive to actually comply with constitutional obligation in regard to education.  In my article Averting Educational Crisis, I argue that, among other things, courts should begin adopting bright line prospective rules and obligations so that states clearly know what actions they cannot take.  This would also justify courts stepping in sooner and more clearly when states default on their obligations.  I also argue that “courts must prompt states to improve the structure of their education decision-making process and planning.”  One of those key processes is an empirically informed basis for school budgets.  A model schools approach, as in the Smalls Schools litigation, is a good example.  The key, however, is that when the state acts contrary to its own processes and knowledge about funding, that action should be prima facie evidence of a constitutional violation.  Here, the trial court treated it as functionally irrelevant.

Download O'Connor Ruling

September 21, 2016 in School Funding | Permalink | Comments (0)

Tuesday, September 20, 2016

Hilbert on Using State Constitutional Law to Reanimate Brown and Challenge School Segregation

Professor Jim Hilbert (Mitchell Hamline) has posted Restoring the Promise of Brown: Using State Constitutional Law to Challenge School Segregation on SSRN that discusses how constitutional claims can reanimate Brown and address school segregation. The abstract is below:

Despite over six decades of litigation, both state and federal court strategies have largely failed to address inequalities and segregation in America’s schools. More than sixty years after Brown v. Board of Education, our schools are still deeply unequal, and school segregation has generally been increasing over the past several decades. In both academic and social outcomes, students in these segregated schools lag far behind their peers.

This article examines the viability of using state constitutional law to address school segregation. For more than forty years, state courts have played a major role and have had varied success in addressing issues of educational inequality under school finance and educational adequacy theories. A handful of cases have used state constitutional law to challenge school segregation, including a brand new case, Cruz-Guzman v. State of Minnesota, which restarts the discussion on how best to restore the original promise of Brown.

Federal courts long ago departed sharply from the initial promise of the Brown decision and have spent the last few decades undermining desegregation. While hailed as one of the Supreme Court’s greatest accomplishments, the iconic Brown decision has been largely dismantled. Yet the goals of Brown remain a priority.Educational adequacy cases targeting school segregation in some respects are a combination of the best of federal and state courts. Such potential cases represent the next logical step in addressing inequality in our schools, combining the many advantages of state court litigation with the original promise of Brown.

September 20, 2016 in Scholarship | Permalink | Comments (0)

Building a Better Teacher

Mark Paige's new book, Building a Better Teacher: Understanding Value-Added Models in the Law of Teacher Evaluation, is now available here.  The promotional materials offer this description:

Mark Paige takes an in-depth look at the interaction of Value Added Models (VAMs) and the law of teacher evaluation. It notes that the hasty adoption of VAMs in evaluation and employment law actually complicates efforts to improve teacher quality, especially at the local level. In brief, VAMs’ costs vastly outweigh their benefits. The book advocates for a complete removal of VAMs in high-stakes decisions. It sets forth numerous recommendations for administrators and policymakers to enable them to effectively deal with the complications created by VAMs.

The book is not simply a criticism of VAMs. It projects a number of solutions for those seeking to improve teacher evaluation. In particular, it recommends the use of a particular method of collective bargaining (interest based bargaining) as a tool to improve evaluation at the local level and empower local stakeholders. The book serves a cautionary message to policymakers and lawmakers: they should exercise extreme caution - now and in the future - before codifying such high stakes policies like VAMs to avoid significant unintended consequences. Paige notes that VAMs' technical faults contribute to the decline of morale among teachers and have the potential to discourage many from entering the profession -- something that may discourage the best teachers from taking on the toughest teaching assignments. In this light, the questionable "reward" of using VAMs in high-stakes matters is outweighed by the risks. He also comments on the role of courts in abolishing VAMs and educational policy in general. With respect to VAMs, he notes that efforts to abolish their use have had a greater success in state legislatures than courts, but court action has been an important mechanism to activate popular opinion around the issue.

The book is definitely a must read for those closely following the court battles over teacher tenure.  As emphasized here, the overconfident belief in the predicative power of VAMs was at the heart of Vergara v. State, which triggered a national litigation movement against teacher tenure.  Vergara, as well as newer lawsuits in New York and Minnesota, ask courts to declare teacher tenure an unconstitutional impediment to a quality education.  Their assumption is that VAMs can reliably tell us who the worst teachers are and, were it not for tenure laws, districts could remove them and improve education. Unfortunately, neither is true.  

This is not to say, however, that improvements in teacher quality are out of reach.  Quality teaching is central to quality education and we have a long way to go.  Both the opponents of tenure and scholars like myself and Paige would agree on that point.  The disagreement is most often over how we get there.  I would say Paige tries to find the middle ground.

September 20, 2016 in Teachers | Permalink | Comments (0)

Monday, September 19, 2016

Feds Take Action to Address Religious Discrimination in School

Some news outlets have reported a rise in religious based discrimination. According to the Huffington Post, "There have been roughly 100 hate crimes committed against Muslims in the U.S. since the Paris terror attacks in November 2015, according to the group Muslim Advocates. Georgetown University’s Bridge Initiative found that there were more acts of anti-Muslim violence and vandalism in 2015 than in any year since Sept. 11. The Huffington Post has also recorded more than 260 acts of anti-Muslim violence, discrimination and political speech in the United States this year."  Schools have been no exception. 
As part of ongoing efforts to encourage respect for students of all faiths and beliefs, the U.S. Department of Education today shared a series of actions that confront discrimination and promote inclusive school environments.

The steps include a new website on religious discrimination, an updated civil rights complaint form, an expanded survey of America's public schools on religious-based bullying, technical assistance for schools, and recent outreach on confronting religious harassment in education.

"Students of all religions should feel safe, welcome and valued in our nation's schools," said Assistant Secretary for Civil Rights Catherine E. Lhamon. "We will continue to work with schools and communities to stop discrimination and harassment so that all students have an equal opportunity to participate in school no matter who they are, where they come from or which faith, if any, they subscribe to."

Continue reading

September 19, 2016 in Bullying and Harassment | Permalink | Comments (0)

Wednesday, September 14, 2016

Court Declares Connecticut Education System Violates State Constitution by Molly Hunter

On September 7, Superior Court Judge Thomas Moukawser issued his post-trial decision, in Connecticut Coalition for Justice in Education Funding (CCJEF) v. Rell, finding that the state was not fulfilling its duty under the state constitution to provide children with a fair opportunity for a high school education, and ordering the state to submit remedial proposals within 180 days.

The court articulated a constitutional standard that requires the state to provide funding and resources to meet student need. The court wrote that "the state must at least deploy in its schools resources and standards" substantially rational and connected to teaching children and "things known to meet children's needs."

The court concluded that many of the state's education policies are irrational. "For instance," the court observed,

the state spends billions of dollars on schools without any binding principle guaranteeing that education aid goes where it's needed. During the recent budget crisis, this left rich schools robbing millions of dollars from poor schools. ... Instead of the state honoring its promise of adequate schools, [it] has left rich school districts to flourish and poor school districts to flounder ... [and] the system cannot work unless the state sticks to an honest formula that delivers funding according to local need.

Despite these statements, however, the court articulated and followed "a low constitutional threshold," based on its understanding of the plurality plus one (4-3) CCJEF remand order from the Connecticut Supreme Court. But, the court appears to have missed much of the supreme court's instruction and failed to fulfill its expectation that the trial court would flesh out the resources needed to meet the supreme court's broad constitutional resource standards.

Continue reading

September 14, 2016 in School Funding | Permalink | Comments (0)

Tuesday, September 13, 2016

ACLU Files Suit against School That Handcuffed a Seven-Year-Old, Hearing Impaired Boy Who Cried Instead of Responding

The Missouri Branch of the American Civil Liberties Union has filed a lawsuit against Kansas City Public Schools in regard to the arrest of a Kalyb Primm Wiley.   At the time, Kalyb was 7 years old, about 50 pounds and 4 feet tall. According to the complaint,

He had committed no crime, had threatened no one, and posed no imminent danger to anyone that necessitated Defendant Craddock to restrain plaintiff in handcuffs.

. . . .

Continue reading

September 13, 2016 in Discipline | Permalink | Comments (0)

Ending Zero Tolerance: The Crisis of Absolute School Discipline By Derek Black

9781479877027_FullBlog editor Derek W. Black's new book, Ending Zero Tolerance, The Crisis of Absolute School Discipline, is now available on Amazon and New York University Press. In the new book, Black challenges the judiciary to check schools' overreliance on severe disciplinary measures. From the book's summary:

In the era of zero tolerance, we are flooded with stories about schools issuing draconian punishments for relatively innocent behavior. One student was suspended for chewing a Pop-Tart into the shape of a gun. Another was expelled for cursing on social media from home. Suspension and expulsion rates have doubled over the past three decades as zero tolerance policies have become the normal response to a host of minor infractions that extend well beyond just drugs and weapons. Students from all demographic groups have suffered, but minority and special needs students have suffered the most. On average, middle and high schools suspend one out of four African American students at least once a year. 

The effects of these policies are devastating.  Just one suspension in the ninth grade doubles the likelihood that a student will drop out. Fifty percent of students who drop out are subsequently unemployed. Eighty percent of prisoners are high school drop outs. The risks associated with suspension and expulsion are so high that, as a practical matter, they amount to educational death penalties, not behavioral correction tools. Most important, punitive discipline policies undermine the quality of education that innocent bystanders receive as well—the exact opposite of what schools intend.  

Ending Zero Tolerance answers the calls of grassroots communities pressing for integration and increased education funding with a complete rethinking of school discipline. Derek Black, a former attorney with the Lawyers’ Committee for Civil Rights Under Law, weaves stories about individual students, lessons from social science, and the outcomes of courts cases to unearth a shockingly irrational system of punishment. While schools and legislatures have proven unable and unwilling to amend their failing policies, Ending Zero Tolerance argues for constitutional protections to check abuses in school discipline and lays out theories by which courts should re-engage to enforce students’ rights and support broader reforms.

September 13, 2016 in Analysis, Discipline | Permalink | Comments (0)

Monday, September 12, 2016

Second Circuit Dismisses Student-Plaintiffs' Suit That Claimed Taxpayer Money Was Diverted To Fund Private Religious Schools

A divided Second Circuit held today that student-plaintiffs in the East Ramapo (N.Y.) School District lacked standing to challenge the alleged diversion of public funds to religious institutions in their district. In Montesa, et al. v. Schwartz, et al., taxpayer and student plaintiffs alleged that school board members of the East Ramapo School District had an under the table agreement to allow Orthodox/Hasidic Jewish parents to invoke the Individuals with Disabilities Education Act to have their children placed in largely Hasidic schools. The parents did this, the plaintiffs claimed, by simply  writing a letter to the school board disagreeing with the placement of their children in the public schools. School board members would then pass a private placement resolution in lieu of an Impartial Hearing under the IDEA and reimburse the parents for the private religious school tuition. One problem with this, the plaintiffs argued, was that the school district would not be entitled to federal or state reimbursement for these students because the settlements occurred before an Impartial Hearing under the IDEA. The plaintiffs alleged that the school board defendants thus diverted funds away from the district's public schools and into Hasidic religious institutions. In today's decision, the Second Circuit held that the student‐plaintiffs lacked standing to assert an Establishment Clause claim because they were  only indirectly affected by the conduct alleged to violate the Establishment Clause. The circuit court, which upheld the district court ruling, found that the students were not directly exposed "to the unconstitutional establishment of religion.” A taxpayer suit on similar grounds is proceeding in federal district court. The opinion is here.

September 12, 2016 in Cases, First Amendment | Permalink | Comments (0)

A School District on the Brink of Collapse: Educational Opportunity at the Intersection of Race, Poverty, and Geography

For the past few years, Pennsylvania's education system has stood at the brink of disaster in some shape, form, or fashion.  First came the state's decision to retreat from its new school funding formula and impose new cuts.  Then came stories of completely upside down budgets, with public schools bleeding money to brick and mortar charter schools. Those were followed with rampant corruption and a federal indictment of a virtual charter school operator.  Mixed in was the story of a Philadelphia girl who fell ill and died on a day when no nurse was present at school due to funding cuts.  This brought national attention on the state's policies.  This past school year did not look much better.  It started with no state education budget.  As late as March, the state was still flirting with finishing the school year in the same position--with no school budget.  Along the way, there were stories of unpaid teachers, shuttered pre-kindergarten programs, extended winter breaks to save money, and the potential collapse of entire school districts.

The Erie School District was one of those districts pushed to the brink.  Its superintendent indicated that the small district might be forced to dissolve itself and allow its students to be subsumed by the much larger neighboring suburban districts if the state did not pass a budget and adopt a more equitable funding formula.  The state passed a budget and tinkered with the funding formula, but neither was substantial enough to change the underlying reality in Erie.  According to NPR, it still is far from having the resources it needs and is considering dissolution:

Erie's schools have been pushed to the brink after six years of deep budget cuts, and he believes the children in the city's district — which predominantly serves students of color — are being systematically shortchanged.

That's in part because urban school districts in Pennsylvania face a particularly brutal logic.

They serve the poorest, most needy students. Yet, when it comes to state funding per pupil, most of them don't make the top of the list.

Even though Erie is one of the most impoverished districts in the state, and has one of the highest percentages of English language learners, the district currently receives less per-pupil funding from the state than hundreds of other districts.

Excluding pension costs, per-pupil spending in Erie is less than it was in 2008-09.

. . . .

The issue in Erie is even more complicated because of Pennsylvania's education funding policies. For most of the past 25 years, the state has distributed money without a rational, student-based formula.

So although Erie is one of the state's most challenged districts, the state sends more money per-pupil from its main pot of cash to most other districts in the county — including wealthier ones, with less pressing needs, that already have an easier time raising local funds.

"The differences between the resources we have in the county compared to in here are just shocking," said Brian Polito, chief financial officer for Erie Public Schools."

Polito used to have a similar job in North East, a rural district in Erie County. Drawing a comparison, he says last year Erie spent $6,000 dollars on its 18 libraries.

"In the school district that I came from, we had three libraries and our budget for library resources was almost $40,000."

It's examples like these that has Millcreek parent Genene Mattern completely supporting the stand that superintendent Jay Badams has taken on closing the city's high schools.

"People need to get mad. People need to get loud, because the more you just sit and let it happen, I think the more they figure, 'well, they're okay with that,'" she says.

The Erie district did receive a modicum of relief in the state budget that recently passed, including a $3.4 million boost in basic education funds, and a one-time $4 million dollar emergency supplement.

But the systemic issues will persist, and Erie's finances are slated to be in the same straits by the end of the school year.

Talk of dissolving Erie's district, however, is causing a lot of uneasiness in surrounding districts.  They are predominantly middle-income and white, while Erie is predominantly poor and minority.  Some of the concerns are more explicitly related to race, while some others hearken back to the facially neutral but coded language that opposed busing during desegregation in the south. The problem, they would say, is not race but the difficulties children will face when they attend something other than a neighborhood school.  NPR also asks: "Would Erie's crisis even be happening if it was a majority white district?"  This question, however, may be best directed at state policy than just local politics.

The unfortunate situation in which Erie's school children find themselves is the sad story of race, poverty, and geography in American schools.  Geography is highly determinate of educational opportunity and probably even more so in most northern locales, where school districts are much smaller.  The smaller we draw district lines, the higher the capacity to wall-in or wall-out particular neighborhoods.  As a practical matter, districts become far more homogeneous than an overall county's or region's demographic population.  In other words, small districts increase racial and socio-economic isolation.  When this isolation is coupled with state policy that largely bases education funding on local property taxes, it produces highly unequal resources between districts.  In other words, the districts become segregated and unequal.  When this occurs, state level funding solutions become politically more difficult.  The education world has been divided by race, class, and resources and there is little incentive for the "haves" to agree to plans that would send more resources to the "have-nots."  In other words, the suburb votes are stacked against urban school districts.

The only apparent solution for districts like Erie is to cut through the structural morass of inequality and blow up the system--to, in effect, say we reject district lines, we reject inequitable funding systems, we reject a system that leaves inner city children to fend for themselves.  We give up, and the state and its suburban school districts must now find a way to integrate us into its flawed system.  No wonder those who control the levers of power are so upset in Erie.  They should be upset in Harrisburg too.

September 12, 2016 in Racial Integration and Diversity, School Funding | Permalink | Comments (0)

Friday, September 9, 2016

NYT Education Issue: An Effective but Exhausting Alternative to High-School Suspensions

In keeping with Derek's post yesterday on the ED's guidance to reduce violent interactions between students and school resource officers, the New York Times' annual education issue has an article by Susan Dominus, An Effective but Exhausting Alternative to High-School Suspensions, focusing on a school that is trying to implement a restorative-practices model of school discipline. The article describes the efforts in Leadership and Public Service High School in Manhattan’s Financial District to reduce its student suspensions (230 in 2013 and in 140 in 2014). Leadership's principal and dean recruited staff who were trained in restorative justice practices and coached teachers on how to use non-punitive language with students, among other efforts. The article is online here.

September 9, 2016 in Discipline, News | Permalink | Comments (0)

Thursday, September 8, 2016

U.S. Department of Education Takes Step to Limit Violent Interactions between Resource Officers and Students

As discussed here and here, this past year has brought too many stores of school resource officers (SRO) acting with excessive levels of force against students.  This morning, the U.S. Department of Education has taken an official step in the attempt to quell these incidents.  The Department released set of guidelines for how schools should hire and use school resource officers. The Department is calling it a rubic that

includes five common-sense action steps that can help ensure that SROs are incorporated responsibly into school learning environments. These action steps are:

1. Create sustainable partnerships and formalize [Memoranda of Understandings (MOUs)] among school districts, local law enforcement agencies, juvenile justice entities, and civil rights and community stakeholders.
2. Ensure that MOUs meet constitutional and statutory civil rights requirements.
3. Recruit and hire effective SROs and school personnel.
4. Keep your SROs and school personnel well trained.
5. Continually evaluate SROs and school personnel, and recognize good performance.

Get the full guidance document and its detailed explanations here.

September 8, 2016 in Discipline | Permalink | Comments (0)

Trial Court Declares Connecticut's School Finance System Unconstitutional; Next Question Is Whether Supreme Court Will Agree

A Connecticut trial court has struck down the state's education system as unconstitutional and ordered the state to fix it within six months.  The judge announced his opinion from the bench.  According to local reports, Judge Thomas Moukawsher indicated that "Beyond a reasonable doubt, Connecticut is defaulting on its constitutional duty to provide adequate public school opportunities because it has no rational, substantial and verifiable plan to distribute money for education aid and school construction."  Although the state Attorney General's Office gave no indications as to its next step, one has to guess that it will appeal.  It is before state supreme courts that school finance litigation has gotten tricky over the past several years.  Trial courts in Texas, North Carolina, and Colorado, to name just a few, have ruled in favor of plaintiffs based on a strong record of inequality and inadequacy.  State supreme courts, however, have been more reluctant to uphold those decisions.  Even when a supreme court has agreed that the state has failed in its constitutional duties, some have questioned the propriety of the remedy ordered by the trial court, reasoning that the nature of the remedy lies in the discretion of the state.  So in North Carolina, the supreme court struck down the trial court's order for the state to expand pre-kindergarten opportunities, even though the state was clearly in violation of the constitution and had yet to devise an effective remedy.

On one hand, the trial court in Connecticut is pushing hard on the remedy by giving the state only six months to come up with a plan, which puts the opinion at risk of being perceived too aggressive on appeal.  On the other hand, the court did not specify what that remedy should be.  Assuming the trial court is correct on the underlying facts, this could be the way to thread the needle between asking for too much from the state and not asking for anything.  This offers the trial court's opinion a better odds of being upheld on appeal, while also keeping the pressure on the state.  Unfortunately, it tells us little about whether the state will do anything.  Washington's Supreme Court has taken analogous action in recent years and largely been ignored by the state legislature.  For more on the recent challenges of winning and defending school finance remedies, see here.


September 8, 2016 in School Funding | Permalink | Comments (0)

Wednesday, September 7, 2016

Third Circuit Affirms Denial Of Qualified Immunity For Teacher Who Allowed Kindergartner To Be Taken From Class By Unauthorized Adult

The Third Circuit has affirmed a district court’s denial of qualified immunity for a schoolteacher who allowed a kindergartner to leave his class with an adult who failed to identify herself and who later sexually abused the student. In L.R. v. Philadelphia School District, No. 14-4640 (3rd Cir. Sept. 7, 2016), a teacher in the Philadelphia School District allowed a kindergarten student (called “Jane” in the opinion) to leave his classroom with an adult who failed to identify herself. The adult sexually assaulted the child later that day. In the early hours of the next morning, a sanitation worker found the child in a playground after hearing her cries. The child’s parent sued the teacher, who claimed qualified immunity. The Third Circuit acknowledged that teachers are often shielded by the doctrine of qualified immunity, but that this case was different because state action created the danger to the plaintiff. First, the court applied a state-created danger exception to the general rule that states have no duty under the due process clause to protect its citizens from private harm. The court noted that this was not simply a case of the school official’s failure to intervene to prevent an unauthorized person from removing a child from school. It was instead a school official allowing a stranger to remove the child from a safe place—the kindergarten class—to an unsafe one:

The setting here is a typical kindergarten classroom. Children in this setting are closely supervised by their teacher. Their freedom of movement is restricted. Indeed, they are not likely to use the bathroom without permission, much less wander unattended from the classroom. In the classroom, the teacher acts as the gatekeeper for very young children who are unable to make reasoned decisions about when and with whom to leave the classroom. Viewed in this light, Jane was safe in her classroom unless and until her teacher, Littlejohn, permitted her to leave.

The court also found that “the risk of harm in releasing a five-year-old child to an unidentified, unverified adult is “so obvious” as to rise to the level of deliberate indifference,” the appropriate standard when an official is not under intense time pressure to make a decision with limited facts. In this case, the teacher asked the adult for identification and documentation that she was authorized to remove Jane, but nevertheless allowed Jane to be taken without the requested verification. The circuit court then turned to whether Jane’s right to be free from “unjustified intrusions on personal security” was clearly established at the time of the teacher’s actions. The court found that sufficiently analogous cases should have placed school officials on notice that it was unlawful to take a helpless child out of a safe environment and expose her to obvious danger by allowing her to go with an unknown person. The case is here.

September 7, 2016 in Cases | Permalink | Comments (0)

The Perverse Disincentive of School Improvement: Fund Termination

A group of public school parents has filed a lawsuit against the New York Education Department and the Budget Division.  The challenge relates to the loss of school improvement funds.  Each year the state, per federal law, is required to identify schools in need of improvement and those that persistently fail over the course of years get access to supplemental funds for two years.  The funds are intended to help those schools improve.

The irony, however, is that nine schools were put on the persistently failing list and received funds for one year and expected to receive them again the second year.  But when the New York Education Department updated its list of failing schools this year, nine schools that were on the list last year were not on it any longer.  As a result, they lost their supplemental funding.  In other words, they improved enough or the money worked well enough that the state terminated the second year of funding.  

According to this New York Times story, the state is sympathetic to these schools' plight, but the parties cannot come to an agreement as to how to fix the problem--hence the lawsuit.  The plaintiffs are well represented by the Education Law Center, so this is certainly a case to watch.

On another note, this unfortunate story reminds me of some of the past perversities of federal desegregation funding.  As long as school remained segregated and under court order to continue efforts to eliminate the vestiges of segregation, it remained eligible to receive federal desegregation funds.  But once a district actually integrated or was deemed "unitary" by a court, it lost its funding.  This lead to a number of ironic desegregation cases, whereby school districts in the later stages of desegregation would side with plaintiffs and argue that they had not eliminated the vestiges of discrimination.  As I discuss here, Title I of the Elementary and Secondary Education Act, to this day, also includes some perverse incentives.  If a state undertook interdistrict desegregation to deconcentrate student poverty, it might very well end up receiving a smaller Title I grant from the federal government.


September 7, 2016 in Federal policy, School Funding | Permalink | Comments (0)