Wednesday, November 30, 2016
With the selection of Betsy DeVos as Education Secretary, Donald Trump has made good on his promise to do everything possible to undermine and weaken America's public education system. President-Elect Trump made few promises about his education agenda during the campaign, but what he did promise - $20 billion in federal funding taken from public schools to be used for private and religious school vouchers - foreshadowed his pick of a conservative billionaire who has donated considerable sums to promote charters and vouchers at the expense of the public schools and the children they serve. Ms. DeVos's track record in Michigan provides a clear picture of her priorities as Education Secretary. She and her husband have funded campaigns to increase the number of charter schools, including for-profit charters, especially in high poverty communities such as Detroit and Flint. They have funded this effort despite the fact that Michigan's expansive charter sector is among the least accountable and worst performing in the nation. Ms. DeVos also bankrolled an attempt to bring vouchers to Michigan, but those efforts were stymied due to a constitutional amendment passed in 1971 prohibiting public funding for private schools.
The bottom line is this: the Trump Administration will do nothing to support public education across the country. Instead, federal funding will be used as a carrot, or perhaps a stick, to force states to accelerate the unregulated growth of charters and expand existing voucher programs or enact new ones to facilitate the flow of tax dollars from public schools to private and religious schools and other private providers.
What we can also expect is a wholesale retreat from federal enforcement of civil rights protections for vulnerable student populations, from LGBTQ to ELL students. In short, it is not an exaggeration to call the Trump-DeVos education agenda an all-out assault on our public schools, the centerpiece of which is the diversion of billions of dollars from public education to private spending.
What can the vast majority of Americans who care about public education do?
This is a good time to remind ourselves that public education has always been - and will continue to be - the obligation of the 50 states and the District of Columbia. This obligation is embedded in the guarantee of a public education in state constitutions. It is the states, not the federal government, that control access, quality, governance, student rights and the bulk of funding for their public education systems.
A storm of policy and public relations to promote educational inequity and disparity across the nation will emanate from Washington under the new administration. But if we turn our full attention to the states, we can - and must - energize existing coalitions and campaigns of parents, educators, students and community organizations to protect and defend the public schools. Let's start now to erect state and local firewalls to safeguard our schools.
Here are a few ways we can begin:
1) We must press our congressional delegations to oppose the Trump anti-public education agenda, starting with the DeVos appointment but continuing to block other proposals, from dismantling the Office of Civil Rights (OCR) to diverting Title I funding for vouchers under the guise of "portability."
2) If a state constitution prohibits the use of public funding for other purposes, it's time for advocates and activists to get ready to stand behind it. Some state constitutions contain such prohibitions or have been interpreted by courts to do so. If state law is unclear, it's time to propose a law to "lockbox" and protect public school funding. Most states already underfund their public schools, and what our children don't need is the federal government trying to divert any amount of that funding to private and religious schools.
3) This is the right time to start state-level conversations about rejecting offers of federal funding that come at the price of defunding public education and causing even more inequity and disparity of opportunity for students, especially low-income students, students with disabilities, English language learners and students of color.
4) Legislative campaigns for charter school reform must be reinvigorated. In many states, an overhaul of charter school laws is long overdue to ensure full accountability with regard to student access and school performance, as well as the use of public funds. Segregation of students based on disability, the need to learn English, academic risk or other factors must be fought in statehouses, including moratoriums to prevent funding loss and student segregation resulting from uncontrolled charter growth.
5) We must review state-level student and civil rights protections and develop an agenda to strengthen that critical framework. This must include enhancing anti-discrimination and anti-bullying laws; school discipline reform; open admissions for homeless children, youth in foster care, and un-documented students; and other measures to safeguard the rights of students.
On the one hand, a Trump Administration offers the opportunity to join the many advocates laboring to ensure equal and quality education for all children in their states, often in extremely challenging political environments. On the other hand, Trump's election is a wake-up call about a fundamental, enduring lesson: education equity advances or regresses primarily through state action on funding, essential resources and programs, and students rights. Actions taken by the federal government, even those intended to promote equity in the states, can only go so far. And sometimes those actions impede progress.
Let's not get distracted by "inside the beltway" prognostications or rarefied debates over how bad things may be. Those of us working in the states know what's coming. It's time to renew and redouble efforts to protect public education in our states and communities. Millions of children are depending on us.
David G. Sciarra is Executive Director of the Education Law Center, where he serves as lead counsel in the landmark Abbott v. Burke school funding litigation and directs ELC's advocacy on behalf of the nation's public school children.
Tuesday, November 29, 2016
For those who have taught or taken education law in recent years, you have probably touched on the seesaw history of bilingual education in our schools. The trend of the last two decades has included the banning or limiting of bilingual education and the move toward immersion programs. That shift came to a head in Valeria v. Davis, 307 F.3d 1036 (9th Cir. 2002)--a rather complicated case to teach. More than sixty percent of Californian's had voted to ban bilingual instruction. This prompted a legal challenge, alleging that the ban was discriminatory and motivated by ethnic animus. The court rejected the challenge, reasoning that the motivation behind the legislation was to improve education. The case involved the same political inequality theory that was recently taken up by the U.S. Supreme Court in Schuette v. Coalition to Defend Affirmative Action--the case challenging Michigan's ban on affirmative action.
While Valeria and Schuette turned out poorly for civil rights advocates, they have now secured a win in the court of public opinion. California, by a vote of 73-27 percent, just reversed course again and ended the era of English-only instruction in its public schools. Nuance and problems, however, still loom. First, as NPR explains,
[I]t'll be up to school districts to decide locally whether they want to offer bilingual education or not, based on parents' demand for it. Under the new measure, if at least 20-30 parents want bilingual instruction for their children, their school will have to provide it. Even if only a few parents want it — less than 20 — that could put pressure on schools to make and force school district officials to intervene and come up with an accommodation.
The main change under Proposition 58 is that parents no longer have to sign a waiver in order to enroll their children in a dual language or bilingual classroom. Under English-only policies, teachers were prohibited from making any recommendation on bilingual education, so that could change too.
Second, California has an enormous capacity problem. When it banned bilingual education two decades ago, it helped dry up the pipeline of teachers with the training and skills to offer bilingual instruction. That problem is only further amplified by the fact the general teacher pipeline was also decimated by the recession and state policy in response to it. As I detail in Taking Teacher Quality Seriously and Averting Educational Crises: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education, California, along with a number of other states, have a very big hole to dig themselves out of. In other words, there are not enough qualified teachers to fill basic education spots, much less bilingual education.
Monday, November 28, 2016
Erika Wilson's new article, The New School Segregation, 102 Cornell L. Rev. 139 (2016), is now available on westlaw. She offers this abstract:
The South has a long and sordid history of resisting school desegregation. Yet after a long and vigorous legal fight, by the mid-1980s, schools in the South became among the most desegregated in the country. An important but often underappreciated tool that aided in the fight to desegregate schools in the South was the conventional and strategic use of school district boundary lines. Many school systems in the South deliberately eschewed drawing school district boundary lines around municipalities and instead drew them around counties. The resulting county-based system of school districts allowed for the introduction of school assignment plans that crossed racially and economically segregated municipal boundary lines.
Some affluent and predominantly white suburban municipalities in the South are threatening to reverse this progress. They are doing so by seceding from racially diverse county-based school districts and forming their own predominately white and middle-class school districts. The secessions are grounded in the race-neutral language of localism, or the preference for decentralized governance structures. However, localism in this context is threatening to do what Brown v. Board of Education outlawed: return schools to the days of separate and unequal with the imprimatur of state law.
This Article is the first to examine Southern municipal school district secessions and the localism arguments that their supporters advance to justify them. It argues that localism is being used as a race-neutral proxy to create segregated school systems that are immune from legal challenge. It concludes *140 by introducing a normative framework to evaluate the legitimacy of the localism justification for Southern school district secessions specifically and decentralized public education governance structures more broadly.
Monday, November 14, 2016
Students in Flint, Michigan, recently filed suit in U.S. District Court against the Michigan Department of Education, the Flint and Genesee school districts. They allege that exposure to lead in the school system can exacerbate learning disabilities and warrants a response under the IDEA. Those who followed older research may recall a study a couple of decades ago in Maryland showing that racially disparate lead exposure in the state contributed to long term racially disparate educational outcomes. Kudos to the Education Law Center and the ACLU of Michigan for recognizing the issue in Flint and coming to these students' aid. Gregory Little of the White & Case has also stepped up to provide pro bono services in the case. The press release offers this:
The lawsuit demands that the Michigan Department of Education, Flint Community Schools and the Genesee Intermediate School District take immediate action to ensure that all students who require special education services are identified and provided with the programs and supports they require.
“We know that Flint schools are not currently meeting the needs of special education students, and we know that exposure to lead in drinking water can be highly toxic for children, potentially leading to or exacerbating disabilities” said Jessica Levin, ELC Staff Attorney. “It is imperative that the local district and the State of Michigan make sure students are evaluated and provided with appropriate programs and services, especially now that the number of affected students could grow significantly.”
The lawsuit amply documents the systemic violations of federal law, including the Individuals with Disabilities Education Improvement Act (IDEA), in Flint’s public school system. To remedy this situation and prepare for an expected increase in students requiring services, the plaintiffs ask for screenings and evaluations to identify all students in need of special education services and the provision of those services by sufficient and qualified personnel.
“The lead crisis in Flint has put all children at risk, and the state and local education authorities must take action to ensure the public schools meet their legal mandate of addressing students’ educational needs,” said David G. Sciarra, ELC Executive Director. “It is our privilege and our obligation to represent the families of Flint. We will do all we can to come to a speedy and appropriate resolution of this case.”
For more information about the Flint lawsuit, please read this joint ELC-ACLU of Michigan press release.
Thursday, November 10, 2016
The issue of charter expansion in Massachusetts has raised cutting edge issues over the past year and a half. Initially, plaintiffs filed suit, seeking to use the state education clause to argue that the state was obligated to provide more charters in light of its failure to provide an adequate education in its regular schools. That theory built on much of the flawed thinking in California, where a trial court had struck down teacher tenure as a violation of students fundamental right to education. More recently, the higher courts in California rejected that tenure theory. In Massachusetts, however, the theory regarding charters migrated into the political domain and was offered as leverage against legislators who opposed charter expansion. With no victory there, the issue moved to the voters.
On November 8, 2016, Massachusetts voters roundly rejected the expansion of charters. Initially number showed a large margin of 62-38. The New York Times reported that those favoring expansion had spent $26 million to promote the measure. Opponents spent $15 million. The president of the Massachusetts Teacher Association said it was a victory for public education in general: “We held the line. . . . Money can’t buy our public schools.”
Given the flaws in the litigation claims, one would expect the same result there, although it may be slower coming. These types of suits, however, are becoming more and more prevalent.
Monday, November 7, 2016
Last week's New York Times recognized the contribution of David Seeley, who served as Assistant Education Secretary during President Lyndon Johnson administration. In a June 2016 interview with the website The 74, Seeley described himself as a "soldier" in while working for the Eisenhower administration (1956-59), negotiating school districts' "total massive resistance" to desegregation after Brown v. Board of Education, work that he continued in the Johnson administration. Dr. Seelely wrote an influential book on building community schools, “Education Through Partnership," and taught at CUNY after his career in national and city government. Seeley reflected in the June interview that the work on desegregation is far from over:
We got practically all of [the school districts] to come in with plans, but many made it easy for the “separate but equal” doctrine to be kept alive by leaving integration up to a school’s or individual family’s choice … So we didn’t get much integration going, nor did we convert the Southern people, who I think are still unconverted. They’re right in a resurgence of the old Confederacy today — today, right now, we’re still confronting this. … We’re definitely not past the race problem. Right here in Staten Island, too, it’s gotten worse as a matter of fact.
The NYT obituary is here.
Friday, November 4, 2016
In September, Superior Court Justice Brian Tucker granted most of plaintiffs' motion for summary judgment, in City of Dover v. State, holding that the state's statutory cap on State school funds sent to cities and towns denied Dover adequacy funds to which it was entitled under the State constitution and granting a permanent injunction.
The court noted in its ruling that the State did not oppose plaintiffs' motion for declaratory and injunctive relief, but instead the Senate President and Speaker of the House intervened to oppose the motion. The intervenors argued that plaintiffs lacked standing to bring the case. The court did not agree, explaining that because the Dover plaintiffs argued that the loss of funding impaired their ability to furnish a constitutionally adequate education they had standing to challenge the cap.
The court observed that New Hampshire school children have a constitutional right to an adequate education. Citing New Hampshire Supreme Court precedent in Claremont Sch. Dist. v. Governor (1993), the court explained that the State constitution "imposes a duty on the State to provide a constitutionally adequate education to every child in the public schools in New Hampshire and to guarantee adequate funding." The court also stated that the State Legislature must define a constitutionally adequate education and pay for it, citing Londonderry Sch. Dist. v. State (2006).
A New Hampshire statute provides a definition of a constitutionally adequate education and identifies the annual per pupil funding amount based on the cost of providing that education, including upward adjustments for students with various needs. Despite New Hampshire's cost-based calculation, beginning in fiscal year 2010, State law directed the Department of Education to limit State aid distributions by applying a 15% cap on any increase over the 2009 amount. Dover received less than the cost-based calculation in 2010, and subsequent years.
The next question for the court was under what standard to review the challenged statutory language. Because education is a fundamental right in New Hampshire (Claremont 1997), the court used strict scrutiny to determine whether the cap violated the constitution. When governmental action impinges on a fundamental right, strict judicial scrutiny applies, the court noted. The court did not find the cap "necessary to achieve a compelling interest" and "narrowly tailored" to do so, as strict scrutiny requires.
The court declared the cap unconstitutional and issued a permanent injunction against its use. Plaintiffs will recover the funding lost due to the cap from September 15, 2015, and thereafter. This decision also benefits a handful of other school districts and towns that were similarly shortchanged.
"The court in this case correctly upheld the essential right of students to an education," said David Sciarra, Executive Director of the Education Law Center. "This ruling benefits New Hampshire students and the State itself because better educated students today means a stronger economy and civic discourse in the future."
Education Law Center Press Contact:
Molly A. Hunter
Education Justice, Director
Thursday, November 3, 2016
Kandice Sumner, a public school teacher, breaks down racial and socio-economic inequality in our public schools in this straightforward and experiential-based Ted Talk. The webpage offers this introductory summary:
Why should a good education be exclusive to rich kids? Schools in low-income neighborhoods across the US, specifically in communities of color, lack resources that are standard at wealthier schools — things like musical instruments, new books, healthy school lunches and soccer fields — and this has a real impact on the potential of students. Kandice Sumner sees the disparity every day in her classroom in Boston. In this inspiring talk, she asks us to face facts — and change them.
One of the more interesting themes of her talk is the argument that our education system has never been designed to offer equal or quality opportunities to communities of color and that when it does occur it is random or potentially a result of private philanthropy rather than the education system itself. In one snippet of the conversation, she offered:
If we really, as a country, believe that education is the "great equalizer," then it should be just that: equal and equitable. Until then, there's no democracy in our democratic education.
On a mezzo level: historically speaking, the education of the black and brown child has always depended on the philanthropy of others. And unfortunately, today it still does. If your son or daughter or niece or nephew or neighbor or little Timmy down the street goes to an affluent school, challenge your school committee to adopt an impoverished school or an impoverished classroom. Close the divide by engaging in communication and relationships that matter. When resources are shared, they're not divided; they're multiplied.
You can watch her talk here.
Wednesday, November 2, 2016
The Maryland court case of an elementary school student who was suspended for chewing a Pop-Tart into a gun shape was reportedly settled last week. See this blog's stories here and here. The school's assistant principal suspended the student, then seven years old, for shaping the Pop-Tart into what a teacher interpreted as a gun. He was suspended for two days. According to the Annapolis Patch last week, Anne Arundel County Public Schools have reportedly settled with the student's parents to remove the suspension from their son's record, even though a judge ruled this year that school officials were within their rights to suspend him. The story is here.
New Charter School Controversy Calls Into Question Democratic Accountability and What It Means to Be a Public School
One of Dallas’ oldest and biggest charter schools, A.W. Brown-Fellowship Leadership Academy, is in turmoil. It started out with an enrollment of 200 students more than a decade ago and now has 2,400, with growth each year. Some parents are rethinking the school and its governance. New claims of abuse and/or mistreatment of students have been levied against the school. Parents claim the school is being non-responsive to concerns. The problem appears that even if the parents are correct there is nothing they can do about because of the differences between a charter school and a traditional public school.
Parents also complain of nepotism — namely, that board president Lorenzo Brown and his son serve together. But that’s legal for charter schools in Texas. After all, A.W. Brown school was started by a husband and wife. At one point, both Armond and Paula Brown served on the board and worked as employees, records show. Other family members also worked for the school.
. . . .
If the school were part of a traditional district, parents could elect their board members. But as a public charter school, A.W. Brown’s board appoints its members.
So some parents say they’re voting with their feet. LaTrondra King said her son is on the waiting list at another charter school. “I just want the best for him,” she said.
In Charter Schools, Vouchers, and the Public Good, I raised similar issues in the context of asking what makes a school "public." Does a statute that calls a charter school a public school make it so or are there substantive qualities and characteristics that make a school public? I won't recount that entire discussion here, but I argue that constitutional and democratic accountability, among other things, are a central aspect of what makes a school public.
Public schools’ mission also extends to fostering [particular] values once students are enrolled, including democracy, equality, and tolerance. Public schools pursue these ends not only because they are public values but also because the Constitution mandates as much. This is no small distinction. As state actors, public schools are bound to treat students (and teachers) fairly, which entails, among other things, equality, rationality, and viewpoint neutrality. Moreover, these obligations extend not only to individual students but to groups of students, schools, and districts. Equality offers a touchstone example. From its decision of whether to assign a student to special education classes to its decision of how to fund schools and districts, the state and all its subsidiary public schools must ensure equal treatment of and opportunity for all students.
Any number of private schools might hold these same values, as they are not inherently unique to public schools. But private schools are free to bend, ignore, and modify these values. Likewise, statutes might impose equality obligations on nonpublic schools that receive federal funds or fall within some other statutory classification, but private schools are free to decline federal money or alter their status to avoid falling within the ambit of other statutes. For that matter, legislators can exempt private schools from statutory prohibitions at any time and, in fact, have done so on occasion. In short, those values that make schools public create inviolable rights in public schools, in contrast to nonpublic schools, where those values are gratuitous, to the extent they even exist.
Constitutions and statutes, however, are but one piece of the public schools’ accountability structure. Perhaps more important than legal accountability is their political accountability. From the governor and department of education officials to the school board, superintendent, and principals, public education is democratically accountable. To state it another way, people collectively set the rules for public schools.
Nonpublic schools, in contrast, lack democratic accountability. Many argue that consumer accountability is more effective than democratic accountability, and often they are correct. For instance, consumers of education, as a practical matter, are more likely to affect immediate change in nonpublic schools. But there are important limits and caveats to consumer influence. First, the larger community has little influence on nonpublic schools, whereas everyone has the capacity to influence public schools. Second, even those consumers who can exert influence on private schools may find that it is only as to microlevel issues or those issues that the school is willing to negotiate. The educational direction of nonpublic schools ultimately rests solely in the hands of the private school’s leadership and is not subject to formal checks. Unlike in public schools, consumers cannot unelect the boss or bosses in private schools. Their only option is to go elsewhere.
Finally, schools are public because they represent the democratic will of the people. Schools that represent something other than the will of the people are not public in a substantive sense. While these points might seem obvious, they bear noting because, as suggested previously, they mark the outer limits of the role that dissent can play in public schools. Because public schools operate based on democratic consensus, both the dissenter and consenter must abide by the consensus rules. While nonpublic schools can tolerate relatively high levels of individual action and dissent—as individuals can sort themselves into varying nonpublic schools—a system of public schools risks falling apart because it is predicated on collective action. Thus, a hallmark of public schools, for better or worse, is to compel conformity and limit dissenters’ capacity to overrule the majority.
That article also posits that charter schools, as currently structured, present serious tensions that call into question whether they are, in fact, public schools.
With these broad outlines, the question is whether charter schools are substantively public schools and, if not, what steps are necessary to make them public. Of course, state statutes label them as such, but if labels do not confer substantive status, something more must be said of charters. Implicitly recognizing the distinction between labels and substance, commentators and scholars have struggled with how to characterize charter schools. Although some assert charters are public with no explanation beyond the fact that statutes label them as such, more often scholars characterize them as “quasi-public” or hybrid-public schools. These latter characterizations implicitly acknowledge that important aspects of charter schools distinguish them from public schools. Yet, the fact that they are publicly funded and offer free education cautions against eschewing the public characterization altogether.
At some point, however, variations between charter schools and the essential meaning of a public schools are too significant, and a school is either public or not. If the label quasi-public is accurate, a strong case can be made that charters are not public schools. To call a school quasi-public may be to say it looks and acts like a public school in various respects, but it is not really a public school. For instance, courts label some agreements or understandings between people as “quasi-contracts” and, in doing so, impose contractual responsibilities on the parties, but a “quasi-contract” is a quasicontract and not an actual contract because it lacks some crucial element of a contract.
In practice, charter schools, like quasi-contracts, lack crucial elements of the label to which they aspire. In particular, charters diverge from the public school concept in terms of their student enrollment, oversight, and potentially insular missions. This divergence, in all fairness, is not likely true of all charters, as charters operate in diverse ways, but few states sufficiently regulate charters in the manner necessary to ensure that they, as a group, adhere to key public school characteristics. In effect, those charters that act consistent with public values are effectively doing so on a voluntary basis, just as a private school could.
Read the full article here.
Tuesday, November 1, 2016
For law students, medical students, and doctoral students interested in disability law, the Thomas Jefferson School of Law has launched an annual student writing competition focusing on disability law. The details are below.
Thomas Jefferson School of law is pleased to announce the third Jameson Crane III Disability and the Law Writing Competition. Made possible by the generous gift of Thomas Jefferson School of Law alumnus Jameson Crane III, the Crane Writing Competition seeks to encourage outstanding student scholarship at the intersection of law and medicine, or law and the social sciences. The competition promotes an understanding of these topics, furthers the development of legal rights and protections, and improves the lives of those with disabilities.
The competition is open to currently enrolled law students, medical students, and doctoral candidates in related fields who attend an accredited graduate program of study in the United States. Submitted papers may be on any topic relating to disability law, including legal issues arising with respect to employment, government services and programs, public accommodations, education, higher education, housing, and health care.
Submissions will be judged anonymously by an independent panel of experts. The winner of the competition will receive a $1,500 cash prize and the Thomas Jefferson Law Review (TJLR) will consider the paper for publication under the TJLR’s editorial standards. Two second place winners will each receive a $1,000 cash prize. Preference for these additional winners will be given to submissions from disciplines not represented by the grand prize winner. All submissions must be submitted electronically to: email@example.com. All entries must be received by midnight, Pacific Standard Time, January 15, 2017. Winning submissions will be announced by April 15, 2017.
For further details, visit the competition webpage: http://www.tjsl.edu/cranewritingcompetition. Questions may be directed to Associate Dean and Professor Susan Bisom-Rapp, who will be coordinating the competition: firstname.lastname@example.org.
Yesterday, the Supreme Court heard oral arguments regarding the dispute over whether Ehlena Fry, a 12-year-old Michigan girl with cerebral palsy, can bring her service dog to school. The school had prevented her from doing so and she brought suit. The central issue, however, is narrower than the facts of the case suggest. It is a procedural question regarding whether the student must first exhaust administrative process or could immediately sue the district. The Asociated Press reports that the Court was sympathetic to her case:
Chief Justice John Roberts said it "would be kind of a charade" to force the family through administrative proceedings if they can't ultimately get the relief they want. He noted that the Frys are seeking money damages for the emotional harm Ehlena suffered, not trying to work out a compromise with school officials.
Justice Stephen Breyer said he was concerned about gutting the less formal administrative process prescribed by Congress, but seemed to agree that allowing the lawsuit made sense if exhausting administrative remedies "would be futile."
But Justice Sonia Sotomayor said she was "horribly confused" by Katyal's position because the family could no longer get anything by going through the administrative process, since Ehlena is no longer at the school.
Interestingly, Samuel Bagenstos, a former official in the Justice Department and nationally regarded civil rights and disability scholar, is representing Fry. He argued that the school is demanding a time-consuming administrative process that would have the effect of denying his client the relief she seeks. He also adds that her case involves emotional damages resulting from the way the school handled the issue. On the other side, the district claims that allowing the suit would give the family an "end run" around the statutory process that is designed to encourage parents and educators to resolve their differences outside of court.