Monday, October 31, 2016
Over 20 percent of all California charter schools have enrollment policies that violate state and federal law, according to the report "Unequal Access," released in August by the ACLU of Southern California (ACLU SoCal) and Public Advocates of San Francisco. Charter schools in other states use some of the same enrollment policies.
Among the violations cited in "Unequal Access" are admission requirements that violate the California Charter Schools Act, which requires charters to "admit all pupils who wish to attend," regardless of academic performance, English proficiency, immigration status or other factors.
"We hope this report brings to light practices that prevent charter schools from fulfilling their obligations to all students who seek access," said Victor Leung, a staff attorney with the ACLU SoCal. "The report should make it clear to all California charter school authorizers and operators that they cannot cherry pick the students they enroll."
The study examined policies at most charter schools across the state and found that at least 253 violated students' rights by:
- Denying enrollment to students who do not have strong grades or test scores;
- Expelling students who do not maintain strong grades;
- Denying enrollment to students who fail to meet a minimum level of English proficiency;
- Selecting students based on onerous, pre-enrollment requirements, such as essays or interviews;
- Discouraging or precluding immigrant students from attending by requiring information about pupils' or parents' immigration status;
- Requiring parents to volunteer or donate money to the school.
"The idea behind charters was never to create private academies with public funds," said John Affeldt, managing attorney at Public Advocates. "Charter schools, like regular public schools, need to be open to all students. Admission requirements and processes that limit access or discourage certain kinds of students have no place in the public school system."
While the report is the first of its kind to be based on a broad survey of charter admission policies, concerns about these illegal policies surfaced earlier. In 2013, Public Safety Academy in San Bernardino ran into trouble after the school sent letters to 23 students whose grade-point averages had fallen below a 2.0 in one semester. The letter advised them to enroll in another school. Officials at the charter school changed their policy after being contacted by the ACLU SoCal.
In 2014, Public Advocates released a report documenting the charter practice of requiring parents to volunteer "service hours." The report led to new guidance from the California Department of Education, explaining that requirements for volunteer hours are illegal. But the "Unequal Access" report shows the practice still continues in some schools.
In addition to the survey, the report provides recommendations to charter schools, charter-authorizing bodies and the California Department of Education to address the violations.
Tuesday, October 25, 2016
Blog editor Derek W. Black (South Carolina) discussed his book, Ending Zero Tolerance, last week on PBS's Tavis Smiley Show. In Ending Zero Tolerance, Professor Black argues for constitutional protections to check abuses in school discipline and proposes theories for courts to re-engage to enforce students’ rights and support broader reforms. In Ending Zero Tolerance, Professor Black uses stories about individual students, research, and case law to unearth the irrationality of some school systems' disciplinary policies -- and what courts can do to change that. Professor Black's video interview with Tavis Smiley is available here.
Friday, October 21, 2016
Courts Dividing Over Transgender Students' Rights, Creating Problems of Authority and Predicatability
Earlier this summer, a federal district court judge in Texas rejected that the Department of Education's position that Title IX protects transgender students' access to bathrooms consistent with their gender identity. That opinion was in contrast to the Fourth Circuit Court of Appeals, which had upheld the Department's interpretation in Grimm v. Glouchester this past spring. This week the divide and stakes only deepened. This week the district court judge in Texas issued another opinion to clarify or expand his first one. He indicated that his injunction against the Department prevented it from enforcing its Title IX position not only in regard to the school district in question, not only in the state of Texas, but nationwide.
Interestingly, a federal magistrate judge in Illinois decided a case this week in which some students had tried to block other transgender students' access to restrooms consistent with their gender identity. They had argued that such access would infringe on the privacy rights of other students. The magistrate judge rejected this challenge, siding instead with the rights of transgender students and the Department of Education's position.
The various cases, particularly the nationwide injunction by the Texas court, raise serious issues of jurisdiction, conflicts, and enforce ability. If the Fourth Circuit, which covers South Carolina up through West Virginia and Maryland, has sided with the Department's position, can a Texas court enjoin the Department from carrying out that position? One would think not. Circuit splits happen all the time and one circuit does not impose its will on another. On the other hand, I imagine the court could hold the Department in contempt for violating its court order, even though that order might be beyond the trial court's authority. This problem explains why the Department of Justice immediately appealed the order yesterday and presumably the case might have some sort of expedited appealed. On the merits, such an appeal might be hard to expedite, but a court could deal with jurisdictional questions more easily through a temporary stay or other measures.
Thursday, October 20, 2016
The ACLU of California has released a new report titled The Right To Remain a Student: How California School Policies Fail to Protect and Serve. The report begins:
Over the past two decades, police officers in the United States have increasingly displaced school administrators as disciplinarians, responding to minor offenses and conduct violations that pose no direct threat to personal safety. This increase in student-police interactions has funneled thousands of students into the school-to-prison pipeline and created adverse legal consequences for school districts. The Right to Remain a Student: How California School Policies Fail to Protect and Serve details these consequences and describes the current state of school district policies in California that pertain to police on campus. Additionally, it shares model policies that both promote school safety and protect student rights. These model policies are designed to ensure that school staff will manage police encounters safely and equitably for all students—no matter their race, class, disability status, gender, or where they go to school.
- Many districts have conflicting, vague, or absent law enforcement policies that provide little to no meaningful guidance to school staff on when to call police to campus or how to interact with police.
- Most school districts give staff complete discretion to call police to address student misbehaviors that should be handled by school staff such as administrators or counselors, including: a. General school rule violations (62% of districts give staff discretion), b. Bullying and harassment (60.7% of districts give staff discretion), c. School disruption (57.4% of districts give staff discretion), and d. Vandalism (66.7% of districts give staff discretion or even require reporting to police).
- Very few schools (4% or less in each category) have policies limiting police contact for rule-breaking or minor offenses.
- California school districts provide inadequate guidance to school staff on what they should do when police officers question students on campus. a. Of school districts statewide, 70.9% allow police officers to interview students immediately upon demand, stating that staff “shall not hinder or delay” interrogations. b. Less than 1% provide that an adult (not a police officer) must be present to make sure the student’s civil rights are observed during police questioning. c. Only 1.3% of districts have a police ensuring that staff or police advise students of their constitutional right to remain silent.
- California school districts similarly do not protect students who are arrested or removed from campus by police. a. Of California school districts, 30% have no barriers to police removing a student from campus and 8% provide no guidance whatsoever about police officers removing students from campus. b. Only 18.3% of California school districts require a school administrator to ascertain the reason the officer must remove the student from school. c. Only 5.6% of school districts maintain any procedures governing the enforcement of arrest warrants on campus.
A key thesis of the report is the need to distinguish between every day misbehavior of students and other behavior that may actually justify police involvement. As I emphasize in the book Ending Zero Tolerance, many schools do not even distinguish between these types of behavior in their own suspension and expulsion policies, which has also caused a dramatic increase in school exclusion. In other words, it is hard to preach lessons to law enforcement when schools are not even following those lessons themselves.
Thursday, October 13, 2016
Study Finds That Harsh School Discipline Costs Nation $35 Billion, Showing Connection to Much Larger Education and Social Issues
Yesterday, the Civil Rights Project released a new report, The High Cost of Harsh Discipline and Its Disparate Impact. The study attempts to quantify the cost of harsh school discipline through the dropouts and social costs it produces. It looks closely at California and Florida to create a baseline of costs and then extrapolates them nationwide. The abstract explains:
School suspension rates have been rising since the early 1970s, especially for children of color. One body of research has demonstrated that suspension from school is harmful to students, as it increases the risk of retention and school dropout. Another has demonstrated that school dropouts impose huge social costs on their states and localities, due to lost wages and taxes, increased crime, higher welfare costs, and poorer health. Although it is estimated that reducing school suspension rates in Texas would save the state up to $1 billion in social costs, only one study to date has linked these two bodies of research. The current study addresses some of the limitations of that study by (1) estimating a stronger causal model of the effects suspension has on dropping out of school, (2) calculating a more comprehensive set of the social costs associated with dropping out, and (3) estimating the cost of school suspensions in Florida and California, and for the U.S. as a whole. The results show that suspensions in 10th grade alone produced more than 67,000 dropouts in the U.S. and generated social costs to the nation of more than $35 billion. These results are undoubtedly conservative, since the California and U.S. estimates were limited to 10th-grade students, while the Florida estimates were limited to 9th-grade students. Thus, they did not capture the effects of suspensions in earlier grades.
The study is reminiscent of (albeit distinct from) a 2013 report by law enforcement officials titled I'm the Guy You Pay Later. That report emphasized that a
10-year investment in preschool will produce over 2 million additional high school graduates. And if we can reduce the number of young people who commit felonies and the number who are incarcerated by 10 percent each – roughly half the reduction achieved by the Chicago Child-Parent Center program – we can reduce the number of individuals who are locked up by 200,000 each year. The resulting savings – $75 billion over the 10-year investment – could pay the federal costs of the preschool program.
Together, these two studies further the core thesis of my book, Ending Zero Tolerance, which is that school quality and discipline are inextricably intertwined. A primary solution to school quality failures is improving the school discipline system (which means taking approaches that are the opposite of zero tolerance) and a primary solution to school discipline is improving school quality and services. The back-end payoffs are enormous. Unfortunately, the dominant narratives treat these issues as separate and distinct.
Wednesday, October 12, 2016
Last year, advocates filed a lawsuit in Massachusetts that attempted to use the state education clause and school finance precedent to declare a cap on charter schools unconstitutional. The theory was that many current schools were so bad that they deprived students of a quality education. Since quality charter schools were down the road and could be expanded, the remedy was to grant students the access to more charter schools, which would require lifting the statutory cap on them. The theory, in many respects, resembled the strategy of the constitutional challenge to teacher tenure in California.
Last week, the trial court in Massachusetts dismissed the charter case. The court reasoned that the education clause does not create an individual right to education and, thus, does not create an individual right to demand access to other school opportunities and facilities. Rather, the education clause creates a duty on the part of the state to create a constitutionally adequate education system. Exactly how it does that is a matter of legislative policy and discretion, to which courts should defer. Plaintiffs' attempt to have the court insert their legislative preferences for those of the state is misguided.
I would generally agree with this basic rationale and certainly agree that plaintiffs' claims were a misguided use of the education clause. Their claim was really policy advocacy masquerading and constitutional analysis. With that said, I would caution the need for a little more nuance in dismissing such cases.
First, as I outline here, the notion of an education duty with no corresponding education right is highly problematic. If the state has a duty, it should be to someone or some group. While the Massachusetts trial court is correct that this does not mean that each individual student can demand individualized education, the constitution should require that the state create policies that ensure that the educational needs of individual students and students as a whole are met. If a policy is consistently denying students education, they should be able to challenge it and receive some sort of remedy. The duty-right distinction in other cases has been used as subterfuge to release the state from doing anything. Since there is no right, court can reason there is no basis for compelling the state to undertake its duty. The idea that this court might be adding support for that argument is worrying.
Second, the problem is particularly acute in school discipline and school finance cases. In discipline cases, some courts have used the duty-right distinction to flatly reject plaintiffs attempts to rely on their state's education clause to challenge suspension and expulsion. As a result, states can operate discipline systems that I argue here and here are entirely inconsistent with their duty to deliver equal and adequate education opportunities. In addition, in the traditional school finance case, there are numerous examples of states simply refusing to implement the remedies that courts have ordered. South Carolina, Kansas, and Washington immediately come to mind as examples in the past year. James Ryan and I have separately argued that when the state refuses to carry out its duty to implement a remedy to constitutional violations, it is within courts' power and responsibility to grant students immediate relief. This might be in the form of the right to exit their current public school and enroll in another public school. In other words, it should be beyond the state's discretion to force a student to remain in a school that the state refuses to bring up to constitutional standards. To be clear, however, this is not to say that caps on charters or student assignment statutes are unconstitutional or that students or their attorneys have the right to dictate where they should go to school. The point is simply that if the conditions in a particular school are unconstitutional, the state owes the students a remedy. If states, after the opportunity to do so, refuse to implement a remedy, courts can and should exercise injunctive relief on behalf of students.
For those less interested in doctrinal nuances, the trial court holding got it right: the cap on charter schools does not present a constitutional problem. Nonetheless, the initial lawsuit was enough to help get the issue of eliminating the cap on the ballot this November. So voters will get the final say. Recent polls indicate voters are against lifting the cap.
Tuesday, October 11, 2016
My forthcoming article Abandoning the Federal Role in Education: The Every Student Succeeds Act, California Law Review (2017), is available on ssrn. I offer this summary in the abstract:
Congress recently passed the Every Student Succeeds Act (ESSA), redefining the role of the federal government in education. The ESSA attempted to appease popular sentiment against the No Child Left Behind Act’s (NCLB) overreliance on standardized testing and punitive sanctions. But in overturning those aspects of NCLB, Congress failed to devise a system that was any better. Congress simply stripped the federal government of regulatory power and vastly expanded state discretion. For the first time in fifty years, the federal government now lacks the ability to prompt improvements in student achievement or to demand equal resources for low-income students. Thus, the ESSA rests on a bold premise: states will abandon their historical tendencies by voluntarily providing low-income students with equal educational opportunities.
Although the ESSA remains committed to equality on its face, it does the opposite in practice. First, the ESSA affords states wide latitude on student performance, accountability, and school reform. Wide state discretion opens the door to fifty disparate state systems, none of which guarantee equality. Second, the ESSA directly weakens two existing equity standards and leaves untouched a loophole that exempts eighty percent of school expenditures from equity analysis. Third, the ESSA leaves federal funding flat, eliminating the possibility that additional resources will offset the inequalities that the foregoing provisions permit. These changes to federal education law are so out of character that they beg the question of why the federal government is even involved in education at all.
Although Congress is unlikely to repeal the ESSA just months after passing it, it is set to expire by its own terms after four years. This Article proposes that Congress cure the ESSA’s flaws by increasing the federal investment in education to: 1) create the leverage needed for states to accept federal prohibitions on unequal funding practices; and 2) meet the outstanding needs of low-income students.
Monday, October 10, 2016
CALL FOR PAPERS
Children’s Legal Rights Journal
Submission Details. We invite you to submit articles that address any of the prominent and current issues that impact children. Articles should be received by December 1, 2016. Submissions should be previously unpublished pieces based on original work. All submissions should be between 15 and 60 pages (doublespaced) and in Bluebook format.
About the CLRJ. The Children’s Legal Rights Journal is a national journal sponsored by Loyola University Chicago School of Law in cooperation with the National Association of Counsel for Children. We publish articles on a variety of children’s legal issues and we are the only journal in the country specifically addressing legal needs of children.
Contact Information. All submissions and questions can be sent directly to CHILDLRJ@LUC.EDU. Please do not hesitate to contact us with any questions. You can also contact CLRJ via mail and facsimile:
Erika C. Weaver
25 E. Pearson, 11th Floor
Chicago, IL 60611
Tuesday, October 4, 2016
Last fall, teacher shortages swept states across the nation and caught the attention of major media outlets. Linda Darling-Hammond, Leib Sutcher, and Desiree Carver-Thomas's new essay in Huffington Post reminds us that the shortages are far from over. This fall is bringing a spate of stories similar to last year. As they write:
After years of layoffs during the fiscal recession, an upturn in the economy has allowed districts to begin hiring again. The problem is that many districts cannot find qualified teachers to fill the new positions. . . .
Teacher shortages were the topic of a recent gubernatorial debate in Indiana, with the Democratic challenger blaming the policies of the former governor for current shortages, while his Republican opponent pointed to a national crisis as a source of Indiana’s woes. With more than 40 states, plus the District of Columbia, reporting severe shortages in special education, math, and science, and states reporting the hiring of substitutes and individuals without credentials by the thousands, a national shortage seems plausible. Last spring, Indiana Governor Pence (now a vice-presidential candidate) signed into law a major scholarship bill subsidizing the preparation of prospective teachers in an effort to boost supply.
Two weeks ago, the Learning Policy Institute (LPI) released a report on teacher supply and demand that examines the data behind these shortages. We set out to understand the sources of these difficulties and what might be done to resolve them.
They also offer a set of solutions:
- Creating competitive, equitable compensation packages that allow teachers to make a reasonable living across all kinds of communities.
- Enhancing the supply of qualified teachers for high-need fields and locations through targeted training subsidies and high-retention pathways.
- Improving teacher retention, especially in hard-to-staff schools, through improved mentoring, induction, working conditions, and career development.
- Developing a national teacher supply market that can facilitate getting and keeping teachers in the places they are needed over the course of their careers.
To my relief, these solutions are very similar to those I pose in Taking Teacher Quality Seriously. The problem, I point out, is that past reforms have been premised on silver bullet solutions. Courts, moreover, have often encouraged this type of thinking. The needs of our students, teachers, and their learning environments are too complex for singular solutions.