Tuesday, February 28, 2017

How States Can Better Promote Fairness for Transgender Athletes by Jonathon Reynolds

Mack Beggs, 17, won the Texas state girls’ wrestling title on Saturday culminating in an undefeated season for the young man. Unfortunately, this was not the division Beggs wanted to compete in – a sentiment shared by his competitors and other members of the community. Beggs was born female, but according to the Star-Telegram, his parents recall Beggs identifying as male as early as age 3. After a long wait, Beggs was finally able to begin transitioning a little more than a year ago with the use of testosterone therapy. Naturally, the treatment has promoted substantial growth in muscle mass and physical strength.

There was overwhelming community support behind Beggs’s desire to wrestle in the boys’ division, but the University Interscholastic League, the state’s governing body for public school athletics, prohibits gender integrated athletics. The Dallas Morning News reports that in 2016, 95% of Texas Superintendents voted in favor of amending the UIL’s constitution to require student athletes compete as the gender identified on their birth certificate.

The expansion of sex-separated teams in public school wrestling has been a recent development. I was on a wrestling team in Tennessee from 2005-2008, and I had the opportunity to wrestle several females over that course of time.  My female opponents were never conclusively less capable than the male opponents. Importantly, these opponents were females both on their birth certificate and in identity. Mack Beggs is not. Beggs testosterone therapy and male identity create actual differences between him and his female competitors. Since we have allowed female wrestlers to compete with males as a matter of practice before sex-separated teams, why not allow them to compete now? 

 It’s likely the UIL policy was promulgated to protect female competitors from competitors labeled male on their birth certificate, but incidentally the policy has created a situation where female competitors are forced to wrestle a male. Beggs may not be male according to his birth certificate, but according to his strength, muscle mass, and undefeated season – many would concede that Beggs is male, thus creating the problem the UIL wanted to avoid.

Under the Obama administration’s policy guidance, Beggs likely could have filed an administrative complaint with the Office for Civil Rights, alleging discrimination under Title IX.  The Trump administration, however, recently reversed that policy position.  The Supreme Court will presumably pick sides later this year in its pending case, Grimm v. Glouchester County, which addresses transgender students’ access to bathrooms consistent with their gender.

But even if the Court sides with the new administration and concludes that sex discrimination only means biological sex or the sex indicated on one’s birth certificate, the UIL can still find a workable solution.  If the UIL’s real concern is male domination of the female wresting division, it could adopt a policy whereby females can compete in the male league, but still prohibit males from competing in the female league.

While this sex-based inequity would certainly present a prima facie case of discrimination, it would likely pass judicial scrutiny. In order to survive scrutiny, the state must show an important government interest for the discrimination and that the chosen means are substantially related.  The important interest would be an effort to redress past discrimination against females.  The means would be substantially related to this interest by maximizing opportunity for females. The minimal effect this policy change would have on males further increases the likelihood of surviving scrutiny.

On the other hand, the current justifications for prohibiting girls from competing on boy’s teams are marginal at best. Common arguments for sex-separated athletics focus on safety of the female competitor, but sex is not determinative of the risk you take in a sport—particularly in wrestling. When your competitors are determined by weight division, the organizational structure precludes a situation where a male’s natural difference in size imposes greater risk on his female opponent. Even if the average male within a given weight class is stronger than the average female, it is two individual students who take the mat, not students who represent the mean characteristics of their sex. A 6’3, 140 lbs., male with relatively little muscle mass may face off against a 5’7, 140 lbs. female who is all muscle. Or an overweight and weak 5’4, 170 lbs., male may face off against a lean 5’10, 170 lbs. female. I have seen these types of match-ups on the mat before, and they were no different than had two males of those characteristics competed.

This policy is not far from the preferred one that the National College Athletics Associate already uses. The NCAA policy requires students similarly situated to Beggs compete in the male league. Under NCAA policy, transgender female-to-male students who undergo testosterone treatment therapy like Beggs must compete in the men’s league. Conversely, male-to-female athletes cannot compete on a women’s team without at least one year of testosterone suppression therapy. For transgender students who do not receive hormone therapy, female-to-male students are allowed to compete on men’s or women’s teams while male-to-female students are barred from women’s teams. These policies appropriately accommodate transgender athletes while balancing the interest in safety of the competitors. Under the NCAA policy, a girl – not a boy - may have actually won the girls’ state title, and Mack Beggs could have won the boys’ tournament.

Jonathon Reynolds is a law student at the University of South Carolina.

February 28, 2017 in Gender | Permalink | Comments (0)

Monday, February 27, 2017

Basic Due Process As a Limit on School-Based Arrests and Citations

Meredith Simons' student note in the Duke Law Journal makes an excellent point that, on its face, should have been obvious to scholars and courts for some time: if due process applies when a school suspends or expels a student, it should also apply when a school asks an officer to arrest a student or give a student a citation.  So much past scholarship has focused on whether the officer is subject to reasonable suspicion or probable cause standard that it has missed what was in front of our eyes the whole time: Goss v. Lopez's due process analysis. That Simons' went back to the basics and rethought the legal structure of student arrests and citations is a testament to fresh eyes and doing first things first.

Her abstract offers this summary:

There are two primary ways that schools can funnel children into the “school-to-prison pipeline.” The first is by simply removing children from school via expulsions and suspensions, which increase students’ chances of dropping out and getting in trouble with the law. The Supreme Court, recognizing the serious consequences of being forced out of school, has held that expulsions and long-term suspensions constitute deprivations of students’ property interest in their educations and liberty interest in their reputations. Thus, schools seeking to expel or suspend students must provide them with basic due process protections. But schools can also refer students directly to the justice system by having police officers arrest students or issue citations at school. Under current law, these students are not entitled to any due process protections at the point of arrest or referral.

This Note argues that the absence of due process protections for students who are arrested or referred to the justice system at school is incompatible with the Supreme Court’s procedural due process jurisprudence in general and its decision in Goss v. Lopez in particular. The same property and liberty interests that the Court identified as worthy of protection in Goss are implicated by in-school arrests and referrals. Therefore, school administrators who intend to have a child arrested or referred to the justice system should be required to provide students with oral notice of the accusation against them and an opportunity to respond. After an arrest or referral, the school should provide students and their parents with written notice of the arrest or referral and the rationale for the action. These measures will not unduly burden administrators or schools, but they will provide meaningful protections for students. 

Get the full article here.

February 27, 2017 in Discipline | Permalink | Comments (0)

Still Waiting for a Transgender Superman by Jonathan Glater

Now that the Trump Administration has explicitly disavowed guidance to schools on treatment of transgender students, it is worthwhile to revisit exactly what lawyers for the Justice Department and the Education Department wrote way, way back, last May, in a now-distant era.

Last year’s guidance – which is accessible on the Web site of the Education Department – addressed the meaning of the nondiscrimination language contained in Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq.  The law states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

This kind of nondiscrimination language in other contexts, most notably employment, has been interpreted by courts as prohibiting differential treatment based on gender identity.  (The law includes several exceptions for specific institutions and organizations, like the Boy Scouts.)

If the prohibition has this same meaning in education, then it bars schools, colleges and universities receiving federal money from treating transgender students and other students of the same gender identity differently.  For example, to require a transgender student to use a locker room, rest room, or other school facility designated for use by students of a different gender identity would run afoul of Title IX. 

Now, I mentioned that courts have found gender identity-based discrimination to constitute sex discrimination “in other contexts,” and that is because the cases cited by the two departments in the guidance did not involve Title IX – with one exception.  As discussed in more detail earlier in another post, the Supreme Court will hear oral argument next month in Gloucester County School Board v. G.G., and that case is the exception.

Gloucester County does not directly or expressly raise the question of the meaning of the nondiscrimination language in Title IX, although the Court could resolve that issue for practical purposes.  Rather, the Court ostensibly will rule on the extent to which the Obama Administration’s guidance should benefit from judicial deference, as it did in the opinion of a federal court of appeal.  The Fourth Circuit cited the guidance in issuing an injunction requiring that a transgender boy be allowed to use the boys’ restroom at his school.

The question of deference is an interesting one, given that the guidance was not the product of formal notice and comment proceedings.  Perhaps that is the reason that Sean Spicer, the White House’s press secretary, spoke about the Trump Administration’s view of the guidance as he did.  In responding to questions from reporters about the Administration’s policy, Spicer spoke of “several areas of concern, both legal and procedural,” involving the guidance.  He did not offer further detail on what those areas were.

Significantly, the Obama Administration’s guidance did not and does not “add requirements to applicable law, but provide[d] information and examples to inform recipients” of Federal funds about how the two departments will evaluate “whether covered entities are complying with their legal obligations.”  So the obligation of schools to respect the rights of their students has not changed from whatever it was before.

But the likelihood of a federal effort to protect those rights has.

February 27, 2017 in Gender | Permalink | Comments (0)

Friday, February 24, 2017

Washington Charter Schools Back on Trial

Two years ago, in League of Women Voters v. State, the Washington Supreme Court declared the state's charter school law unconstitutional.  The court reasoned that the state constitution requires the state to create and fund “a general and uniform system of public schools," and “the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools.”  Because charters schools are not "common schools" and yet receive common school funds, the court found the statute unconstitutional.

The Washington legislature has since passed new charter school legislation and plaintiffs sued again.  Last week, a Washington trial court rejected their claims.

Plaintiffs raise very similar claims as in the first litigation: a) that the statute violates the constitutions general and uniform requirement (along with its funding scheme); b) that the charter law improperly delegates the authority to charter schools and deprives the Superintendent of Public Instruction’s of power.

The King County Superior Court concluded that charter schools can fall within the "the general and uniform system of public schools" and, thus, the act was permissible.  The court's support for this conclusion was largely premised on the notion that charters are public schools and credits from them are transferable to traditional public schools.  

This, however, should be largely beside the point.  It may answer the question of whether charters are public schools, but it does not answer whether they common schools or part of a general and uniform system.  To be fair, a California appellate court followed a rationale similar to this trial court several years ago in upholding a California charter statute.  But that line of reasoning would appear to be inconsistent with the Washington Supreme Court's holding in League of Women Voters.


A more compelling argument in support of the charter law is simply that it need not comply with the general and uniform provision.  According to the Seattle Times, the new charter schools are funded out of lottery proceeds, which would eliminate one of the major problems from the prior statute.  This fix aside, however, a major concern moving forward would be the fungibility of money.  Regardless of where the money comes from, the typical trend in other states has been to drain money from the traditional public school budget as more money goes into other education programs like charters and vouchers.

My contention has long been that the charter statute faces a far more fundamental problem regarding supervision that cannot be mooted.  The Washington constitution creates the Superintendent of Public Instruction and vest specific supervisory powers in that office.  In other words, the Superintendent is a constitutional officer that neither the legislature nor the voters can mess with, save a constitutional amendment.  In so far as the Washington legislation attempts to establish a charter school system outside the supervisory authority of the Superintendent, it is inherently and diametrically at odds with the state constitution.

February 24, 2017 in Charters and Vouchers | Permalink | Comments (0)

Thursday, February 23, 2017

Civil Rights Rollbacks, the Federal Role in Education, and the Need for Judicial Intervention: An Interview with Jennifer Berkshire

Jennifer Berkshire was nice enough to talk with me the the future of civil rights enforcement under this new administration, as well as several of the ideas I raise in Ending Zero Tolerance.  Her questions consistently go to the heart of the matter.  I am sure many of you follow her work more than mine, but I highly recommend it.  Her pieces go deeper than mine--more in the vein of investigative journalism at times.  She also has a great podcast series.  

Her interview with opens:

Jennifer Berkshire: The Trump Administration has just rescinded guidelines to schools banning discrimination against transgender students. There’s a lot of speculation about just how the joint letter from Secretary of Education Betsy DeVos and Attorney General Jeff Sessions actually was. But you seem unconvinced by the portrayals of DeVos as a fierce protector of civil rights.

Derek Black: The stream of bad news over the past few months has been steady. The Trump transition team said the administration would scale back the civil rights work in education. At her confirmation hearing, Betsy DeVos was reluctant to take an affirmative stance on enforcing students’ disability rights. Since taking the post, she has remarked that she could not *think of any* current pressing civil rights issues where the federal government has a role to play; things like racial segregation and exclusion of females were things of the past in her opinion.

Now reports are coming out that Gail Heriot is likely to be the next head of the Department’s Office for Civil Rights. Heroit has been critical of the Office’s aggressive civil rights stance in recent years. With these individuals in place, it is hard to imagine much good happening at the federal level. Even if they do not rescind other Department positions on integration, school discipline, English Language Learners, and school resources, they are very unlikely to enforce existing regulations and policy guidance. Disparate impact enforcement, for instance, will be non-existent. Rather than take on traditional civil rights concerns, I would expect they will identify fringe issues to pursue.

Berkshire: OK—forget about *much good happening at the federal level.* Is there anything we can feel hopeful about? That was only the first question of our interview and I’m not sure how much more of this I can take…

Black: We have been here before. Disparate impact was not enforced during the Bush era either. And it focused on more marginal issues like Boy Scouts of America Equal Access Act. I think we are actually in a better place to weather the storm today than we were last time. The school-to-prison pipeline is a household word now. More districts are voluntarily pursuing integration. California is bringing back bilingual education. And parents are fed up with standardized testing. On a host of issues, there are local advocates and local politicians that are going to do the right thing regardless of what the Department of Education does. No doubt about it, there is a storm coming, but there are a lot of hardworking and committed people on the ground.

Berkshire: You’re the author of a book called Ending Zero Tolerance: The Crisis of Absolute School Discipline that is turning out to be alarmingly prescient.

Black: One of the central premises of the book is that when nobody else will stand up for kids, it has to be the courts. There are numerous systemic instances over the past few decades where schools and states have gone too far. And when they do it is only the courts that are the saving grace, because we have good political times and bad political times, as we are seeing.

Get the full interview here.

February 23, 2017 in Discipline, Federal policy | Permalink | Comments (1)

A New Approach to Exhaustion in Cases Involving Students with Disabilities by Mark Weber

On Wednesday, Feb. 22, 2017, the Supreme Court decided Fry v. Napoleon Community Schools, No. 15-497. The case concerned a student with cerebral palsy who was denied permission to bring her service dog, a goldendoodle named Wonder, to school. The dog aids her by retrieving objects, helping her balance when she uses her walker, and performing other tasks independently of assistance from adults or others. Although she eventually obtained permission to use the dog through an Office for Civil Rights complaint, the child’s parents thought that there might be resentment and difficulty with obtaining full cooperation from the school. They moved her a different school district and sued the original one under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, seeking declaratory relief and damages. The Sixth Circuit affirmed dismissal of the case on the ground that the family had not exhausted the due process hearing procedure available under the Individuals with Disabilities Education Act. The Supreme Court vacated the decision and remanded the case.

Section 1415(l) of 20 U.S.C. provides that IDEA procedures have to be exhausted when an action is filed under the ADA, Section 504, or other laws that “seek[s] relief that is also available” under IDEA. The Court, per Justice Kagan, said IDEA makes relief available for denials of free, appropriate public education (FAPE) and that in determining whether a lawsuit seeks relief for a denial of FAPE, courts should look to the substance (the “gravamen”) of the complaint. The gravamen depends on the framing of the complaint, rather than an inquiry whether the family could have sought relief under IDEA, but the use or failure to use a given label does not matter. The Court said there are possible clues about whether the gravamen is denial of FAPE: whether essentially the same claim could have been brought in a situation where there is no FAPE obligation, as with a suit for access to a public library that lacks ramps, or whether a suit similar to the one brought by the family could have brought by an adult visitor or employee (no exhaustion would be required in a similar case brought by a student against a school district). The opinion also suggested that if the parents initiated proceedings under IDEA, that is an indication that the gravamen of the complaint is a denial of FAPE. Justice Alito (with Justice Thomas) concurred in part and concurred in the judgment. He disagreed about the “clues,” arguing that they did not take full account of the overlap between the disability discrimination laws and IDEA. In particular, the initiation of proceedings under IDEA might be based on parental misunderstanding of the legal rule or a later-abandoned decision about what relief to seek.

I think a large number of observers will welcome what appears to be a thoughtful and more liberal approach to when cases that bypass administrative procedures should be heard by courts. The Court’s approach seems similar in some regards to the liberalization that the Ninth Circuit undertook in Payne v. Peninsula School District, 653 F. 3d 863, 874 (2011). I share the concerns of Justice Alito, though, that the clues that the majority opinion relies on are at best incomplete and may, in the instance of initial filing of proceedings under IDEA, be misleading. In a number of cases, courts have recognized that ADA and Section 504 require school districts to provide services that are greater than those entailed by IDEA’s duty to provide FAPE. The leading example is K.M. v. Tustin Unified School District, a case in which deaf students lost their IDEA claim for communication access real-time captioning but prevailed on their claim under the ADA. To require IDEA exhaustion in a case in which the school district argues and the family concedes that the relief is unavailable under IDEA seems nonsensical, even if the family thought at some point it might succeed under IDEA and filed (and later abandoned) a due process challenge.

The Court explicitly left undecided the issue whether exhaustion would be required when the complaint under the ADA or other laws concerns the denial of FAPE but the specific remedy asked for is compensatory damages beyond reimbursement for actual expenses, damages relief that courts generally agree is not relief available under IDEA. The literal terms of the statute would dictate that exhaustion is not required, but concerns have been raised that litigants should not be able to bypass exhaustion simply by adding an ADA or Section 504 damages claim for emotional distress to their suit.

February 23, 2017 in Special Education | Permalink | Comments (0)

Wednesday, February 22, 2017

Bad News for the Office for Civil Rights and the Students It Serves?

A Chronicle of Higher Education story indicates the likely nominee for the Assistant Secretary for the Office for Civil Rights will be Gail Heroit, who may take the Office in an entirely new direction.  As discussed here and here, the Office has recently done incredible work.  It seems that the task of the new Assistant Secretary is to undo substantial portions of it.  The Chronicle writes:

Leading conservative activists are predicting that the Trump administration will put a prominent critic of the Education Department’s Office for Civil Rights in charge of it, to scale back its efforts.

Although the White House has yet to tip its hand on its pick as the department’s assistant secretary for civil rights, speculation among plugged-in Republicans whose views have influenced other cabinet picks centers on two well-known conservative figures: Gail Heriot and Peter N. Kirsanow. Both Ms. Heriot and Mr. Kirsanow are members of the U.S. Commission on Civil Rights who recently have accused the department of overreach in dealing with sexual assault and the rights of transgender students on college campuses. Both also have been vocal critics of colleges’ consideration of race in admissions and student housing.

Of the two, Ms. Heriot, a professor of law at the University of San Diego, may be most likely to get the nomination. That’s partly because Mr. Kirsanow, a labor lawyer in Cleveland, has a broad background that places him in the running for an array of other federal positions. That Ms. Heriot is a woman also could work in her favor, as the Trump administration might see her sex as giving her a measure of political cover in carrying out one of its top priorities for the civil-rights office — reducing the office’s guidance on Title IX, the federal gender-equity law.

More than 240 activists and college faculty members, nearly all conservative or traditionalist in their views, have joined the National Association of Scholars and six other organizations in sending Trump-administration officials a letter endorsing Ms. Heriot as assistant secretary.

February 22, 2017 in Federal policy | Permalink | Comments (0)

How Student Trust Levels Create Behavioral and Achievement Feedback Loops

A new study by David Yeager et al. demonstrates the close interaction between the level of trust students place in school leaders and how those students actually behave and perform in school.  In the discussion of their findings, they explain: 

Once students’ sense of trust or distrust was formed, it seemed to feed off its consequences, producing perceptions of procedural injustice that caused trust to decline further. Moreover, that decline in trust seemed to increase the likelihood of discipline infractions, creating the very social reality that precipitated it. These feedback loops proceed often hidden from the view of teachers and administrators because they unfold slowly and are partly psychological in nature. But their cumulative effect is a large trust gap by seventh grade that disfavored racial and ethnic minority students. Years later, the drop in trust in the transition to seventh grade and then eighth grade seemed to have lingering consequences, in the form of lower 4-year college enrollment for African Americans.

Trust, it seems, sat “in the middle” between social reality and later behavioral outcomes such as disciplinary infractions and college enrollment. We know this from an intervention in Study 1 that experimentally bolstered African Americans’ sense of trust in the face of sharp criticism of their work in the seventh grade. Because the link between trust and later outcomes depends on a continual feedback loop, an early experience that refuted the plausibility of procedural injustice had long-term effects, presumably through a kind of developmental cascade from trust to engagement and into educational pathways.

African American seventh graders who received wise feedback on an essay—conveying that the teacher believed in their potential to reach a higher standard, thus reassuring students that they would be seen based on their merits rather than through the lens of a negative stereotype about the intellectual ability of their racial group—benefited. . . . Although the objective experience of receiving “wise feedback” was short, the psychological and developmental consequences seemed long-lasting. Adolescents receiving the note were assigned fewer disciplinary infractions later according to official records and, nearly 6 years later, were more likely to attend a 4-year college according to the NSC.

This study, in a very concrete way, substantiates a central thesis of my work in Ending Zero Tolerance and Reforming School Discipline: educational quality and discipline policy are inherently linked.  Zero tolerance and punitive discipline policies break the social bonds between students and their teachers and principals--and not just for the students who are subject to punishment.  As a result, harsh discipline policies actually drive down student achievement.  Macro-level assessments of student achievement across states indicate this; school level regression analysis of student discipline indicates this; student surveys indicate this; and now this new and far-more complex case study indicates this. 


February 22, 2017 in Discipline | Permalink | Comments (0)

Tuesday, February 21, 2017

Education Policy Is Tax Policy and the Real Challenge Is the Latter

Ed Build has released a new report that analyzes the fundamental differences between how local communities tax themselves to fund education.  It asks whether "low-wealth districts—those with low-value property tax bases—[are] forced to tax themselves more heavily than high-wealth districts in order to raise enough funding for their schools" and, "if so, what can be done about it."  The report finds that:

in the strictest sense, property taxation for education is usually regressive. In 11 of 18 states studied, overall education tax rates were found to be lower in school districts where property valuation per household was higher. (The reverse was found in just two states.)

But, it turns out, that’s not the whole story. While property taxes for education are regressive at the system level, things look quite different at the household level. In a plurality of states studied, overall school district tax rates were found to be higher in districts with greater median home values. When the investigation was narrowed to property taxes for education paid specifically by homeowners, the results were a mix of progressive, regressive, and neutral findings: residential property tax rates were not found to be consistently related to district affluence. And neither overall tax rates nor tax rates on residential property were found to be consistently related to local income levels.

It emerges that property taxes for education may be regressive overall, but not usually because they overburden low-income households or low-wealth homeowners. Instead, this problem seems to arise mostly from the taxation of non-residential property, like businesses, factories, and farms. It appears districts often fail to effectively leverage the non-residential property tax base for school funding, and this fact looms larger than any neutral or progressive taxation at the household level.

. . .

When districts do not take appropriate advantage of high-value tax bases, then that money must come from somewhere else—likely, from higher local taxes in districts whose smaller tax bases mean they will struggle to raise enough funding for their schools.

In this way, regressive local taxation for education undermines the fairness of the entire state’s education funding system.

This report is a must read for local policymakers and scholars of school funding.  It reveals that conversations about inequitable and inadequate school funding may be missing the bigger picture.  Fair school funding is not just about funding formulas and identifying student need.  It is about tax policy.  Apparently, our tax policies have built-in biases that we rarely stop to challenge.  

While I had since relegated it to the corners of mind, the report reminds me of a casual conversation with two tax professors about South Carolina's educational adequacy litigation.  In my ignorance, I had not anticipated any deep insights about the litigation, but they immediately explained that the challenge for in arriving at a remedy in the litigation was not agreeing on funding levels for disadvantaged schools and students.  The real challenge was altering current tax structures in the state that the most powerful constituents would resist tooth and nail.  They would resist not because they disagreed with the education agenda but because they wanted to retain the current biases in the tax code.

Get Ed Build's full report here.

February 21, 2017 in School Funding | Permalink | Comments (0)

Monday, February 20, 2017

It’s a Terrible Time to Be Secretary of Education, Especially If You Don’t Understand the Job

Even if Betsy DeVos understood her job, she could not have taken over the Department of Education at a worse time.  The busiest and most complex process that any Secretary of Education will likely see over the next several years is beginning.  States are set to submit their brand new implementation plans for the Every Student Succeeds Act.  They have been operating under No Child Left Behind plans since 2002 and are now transitioning to entirely new schemes.

These plans include lots of moving parts and policy choices within a much larger regulatory structure.  The people who understand those parts just exited the Department of Education building.  New staffers are coming into the building and, as evidenced by the confirmation hearing, their boss does not understand the basic rules that have been in place for decades, much less the new ones.

To make things worse, DeVos just added to the confusion.  On February 10, DeVos sent a letter to states telling them that the timeline for submitting their implementation plans remains in place, but everything else is up in the air.  In November, the Department enacted final regulations outlining what should be in those plans, but DeVos indicates states should not worry about complying with those regulations.  She points to a letter from White House staff and the possibility that Congress might disapprove the regulations.  In such case, "these regulations 'shall have no force or effect.'"  In other words, turn your state plans in on time, but forget the rules. 

This letter creates a host of problems, none of which have anything to do with partisan politics.  White House staff cannot repeal or stay regulations once they become final--certainly not with a memo.  Final regulations can be repealed through the legislative process, but only if the House, Senate, and President act together.  While the House has voted to repeal the regulations, the vote was largely symbolic.  During the Obama administration, the House passed several similar resolutions regarding non-education regulations, but the Senate never acted.  Senator Lamar Alexander has made rumblings about repealing these regulations, but one has to think they are largely rumblings.  Congress recessed last week having taken no action.  Quite simply, the Senate has much bigger fish to fry right now: agency confirmations, a Supreme Court Justice, and repealing the Affordable Healthcare Act.  The last time Congress debated the ACA it led to nearly a decade-long delay in the reauthorization of the Elementary and Secondary Education Act.  In short, my money is on the regulations remaining in effect for some time.

Regardless, repealing the regulations in whole will create a huge vacuum, leaving states with no detailed guidance regarding an entirely new process.  Surgically removing some of the regulations is equally problematic because it requires that someone actually understand the regulatory substance and structure.  Consider, for instance, just one issue like the difference between student proficiency and student growth.  Who is Congress going to ask about regulations that go much deeper than proficiency versus growth?  Besty DeVos? 

If any of the regulations are repealed, the Department will presumably want to replace them.  That takes time--often lots of time.  The Department must go through the notice, comment, and finalization process.  The regulatory vacuum will persist while this drags out.

Even if time were not an issue, new regulations require a sense of where the Every Student Succeeds Act should go.  Betsy DeVos standard line is to let states decide.  But states do not want to decide everything.  They need some sense of the parameters. More important, so does Congress.  While the Every Student Succeeds Act gives states a lot of discretion, Congress did not just pass a 400 page bill so that states would be left with no rules or regulations at all.  Congress could have done that in a page.

The current regulations are the law whether the Secretary likes it or not.  Secretaries may defer enforcement of certain matters on a case by case basis, but Secretaries lack the authority to skip the entire administrative process through letters that repeal or disregard entire regulatory structures.

These problems make the lower level political appointments at the Department more important than ever.  Someone who understands education and administration needs to steer the ship. If someone does not figure this out soon, the Every Student Succeeds Act will be dead on arrival.

As a way of limiting the Secretary’s power, the Act includes a provision that automatically approves state plans if the Secretary does not reject them within 120 days of receiving them.  So if Department’s leadership does not figure out the Act quickly, any state plan that comes through the door will be approved.  If a state wants to rate schools on how often they clean their windows, and punish those who clean too infrequently with mandatory ice cream breaks on Fridays, those plans will set the course for education reform.

February 20, 2017 in ESEA/NCLB, Federal policy | Permalink | Comments (0)

Thursday, February 16, 2017

New Data Reveals the Nuances of Segregation in DC Schools and Opportunities to Address It

The Civil Rights Project has released a new report on school segregation in Washington D.C.  The report is particularly interesting because it reveals the ways in which segregation in D.C. is more nuanced than in other major cities like New York and Los Angles.  White enrollment in the D.C. Public Schools is up over the last two decades and its total school enrollment is relatively steady.  In other words, white flight from DC ended some time ago, and has now reversed to some extent. Likewise, overall "private school enrollment has plummeted in spite of tuition vouchers," although white enrollment in private school remains steady.  Public apartheid schools--those with 99%-100% non-white enrollments--have also  dropped significantly.  Ninety percent of African Americans attended an apartheid school in 1992, but that number dropped to 71% by 2013. Yet, notwithstanding those trends, charter schools have seemingly gone in the other direction.  "The charter schools overall have a less diverse and more segregated enrollment than the public schools."  

To be clear, however, segregation in the public schools remains extremely high and the report focus on missed opportunities that could have achieved significant integration in D.C. The report also contrast D.C. to the surrounding districts, noting that across the river Arlington's schools are predominantly white, while "[t]he relatively small Alexandria district showed positive potential by enrolling a balanced number of each racial group: whites (27%), blacks (33%), and Latinos (32%). The segregation level in the district was the lowest among the six immediate metro districts."

Get the full report here.

February 16, 2017 in Racial Integration and Diversity | Permalink | Comments (0)

Wednesday, February 15, 2017

Three Cheers for Gavin Grimm and His Mother

A new story at the Daily Beast tells Gavin Grimm's story in a way that no other I have seen thus far does.  It is not really about the legal issues, but about the personal journey of Gavin and his mother to stand up.  It is about her evolution and Gavin finding his own mature and civil voice while controversy swirls around them:

“He’s supposed to be thinking about senior skip day,” she told The Daily Beast. “That’s not what he’s thinking about. He’s thinking, ‘I’m going to the Supreme Court so they can discuss my genitals and bathroom use some more.’"

It is a surreal position for a mother to be in, which makes Deirdre’s grace under fire even more otherworldly. The hostility directed at her son used to get under her skin. (“I would hear these nasty comments and it would make me mad and I would want to lash back out at these people,” Deirdre said.)

But now, she’s trying to follow Gavin’s advice: Ignore the blatant opponents of transgender equality and “set a positive example and educate in a positive way” for everyone else instead.

. . .

Taking the high road is a strategy that Deirdre says she learned from Gavin who, at that fateful December 2014 school board meeting, countered his adult critics with a heartfelt plea that could go down in the history books: “I’m just a human. I’m just a boy. Please consider my rights when you make your decision.”

Education law cases pose a different set of ethical and personal issues than most other cases.  A few years ago, a mother told me the story of her daughter's long term suspension from public school and assignment to alternative school.  I told her that the facts, as she relayed them to me, were the ones that I had been imaging for some time.   They did not involve dramatic events, but simply ostracizing a high-achieving student for everyday misbehavior--misbehavior that students cannot really resist because it is part of growing up and being social.  These facts drove to the forefront the irrationality of zero tolerance.  I saw them as a vehicle through which I believed a lower court, and potentially the Supreme Court, could put teeth to a substantive due process review of school discipline.  

I told the mother all of that.  I also told her that filing this lawsuit might not be something she wanted to do.  Her daughter's education was ongoing.  She lived in a small community with a single high school.  Even if she sued the district and won, the remedy might not come for some time.  But at the moment she sued, her child might face subtle and or explicit retaliation. Her daughter would certainly draw a lot of attention, which is not necessarily the best thing for a teenage student. Her educational career might be worse off. Ultimately, the family decided to suffer the injustice quietly and enroll the daughter in another school system.  I never second guessed that.  I simply said I am happy to help whatever they decided.

This is what makes Gavin Grimm's story so courageous.  He and his mother had far more privacy on the line than a suspended or disciplined student, which is the typical type of case we see in court, and they pressed forward anyway.  From what I can tell, they pressed forward with full knowledge.  Gavin Grimm and his mother seem to be standing up because they understand this is about far more than just him.  He is willing to make the type of sacrifice that Oliver Brown, Linda Brown (daughter), and countless others during school desegregation made so that other children might go to integrated schools.  Their sacrifice was real.  As History.com indicates:

After the lawsuits were filed, a number of plaintiffs lost their jobs, as did members of their families, and other plaintiffs had their credit cut off. The retaliation was arguably most severe in South Carolina, where whites burned down the house and church of a particularly energized plaintiff, the Reverend Joseph A. DeLaine, and reportedly fired gunshots at him one night. DeLaine ended up fleeing the state, never to return. Judge Waring was also forced out. Facing death threats, he retired from the bench in 1952 and moved to New York City. 

Three cheers for Gavin Grimm and his mother, Deirdre.



February 15, 2017 in Gender | Permalink | Comments (0)

Tuesday, February 14, 2017

Trans Students' Bathroom Rights: Will DeVos & Sessions Follow Candidate Trump's Common Sense? Not Likely by Diane Klein


The most challenging part of the school day shouldn't be figuring out where to go to the bathroom - or whether one can safely do so anywhere at all.  But thanks to the first act of our new Attorney General, those states that would deprive trans students of safe access to appropriate bathroom facilities will face no objection from a Trump DOE or DOJ.

On Tuesday, February 7, 2017, the Senate confirmed Betsy "But What About The Grizzlies?" DeVos as Secretary of Education; Jeff "Elizabeth Warren and The Ghost of Coretta Scott King Are Bullying Me" Sessions was confirmed and sworn in the next day; and by week's end, the Sessions-led DOJ had reversed course on an important Title IX case relating to the rights of transgender students.

This may be the first (and only!) time I wish Trump's Cabinet would take their lead from candidate Trump's public statements on an issue.  Unfortunately, recent events suggest the opposite: that DeVos and Sessions will be targeting one of our nation's most vulnerable groups, in a needless and cruel policy offered as a sop to the most deplorable, ignorant part of the electorate.

Nearly a year ago, on February 22, 2016, the Charlotte (NC) City Council voted 7-4 to expand an existing nondiscrimination ordinance to cover LGBT people.  The ordinance, which would have gone into effect April 1, 2016, included a provision permitting people to use the bathroom of the gender with which they identify.

On March 23, 2016, North Carolina, in a response that makes the Pearsall Plan look progressive and open-minded, enacted HB2, undoing Charlotte's ordinance, and requiring use of bathrooms corresponding to a person's "biological sex," defined in the bill as "The physical conditions [sic] of being male or female, which is stated on a person's birth certificate."  Under HB2, schools were specifically prohibited from allowing students to use any other bathroom than the one matching birth-certificate sex.  It stated, "Local boards of education shall require every multiple occupancy bathroom or changing facility...designated for student use to be designated for and used only by students based on their biological sex."

HB2 became hugely controversial, and prompted boycotts of North Carolina by various businesses (like PayPal) and organizations.  (For example, the NCAA has pulled its championship games out of the state.)  It was in the context of that business impact that candidate Trump responded to queries about the bill. When, on April 20, 2016, Matt Lauer of the "Today" show asked Trump about the issue, Trump pointed to "the strife and the economic punishment" suffered by North Carolina because of HB2.  He suggested, admittedly vaguely, that the state simply "Leave it the way it is," meaning, presumably, continue to allow transgender Americans to use the bathroom associated with the gender with which they identify.  Should Caitlyn Jenner, one of the best-known trans women in America, visit Trump Tower, he intimated, she could use the restroom of her choice.

While Trump's response was hardly a resounding affirmation of trans rights, he responded as many fair-minded Americans do to this entirely manufactured issue: in essence, who cares what bathroom someone uses?  And what sort of people do care?

A closer look makes clear that the real intent of these "bathroom bills" is not to protect anyone.   Opponents of transgender bathroom access have a long and sordid history of casting trans people as sexual predators instead of what they actually are: the frequent victims of hate crimes, including sexual crimes.  A person who intends to carry out an assault in a restroom will hardly be deterred by the gender marker on the door.  There is obviously something else going on.

That something else is a frontal assault on transgender identity and existence.  While the benefits of such bills are non-existent, the harmful effects on trans kids in school are staggering.  Requiring trans kids in schools to use the bathroom associated with the sex on the student's birth certificate (which generally cannot be changed until adulthood) may not seem like a big deal.  But stigmatizing a child who wishes to present in a gender different from their assigned gender is a way to deter that child from outwardly transitioning at all (in other words, a trans girl identified at birth as a boy will be forced to continue to present as a boy, and use the boys' restroom), on pain of being set up for abuse, or even driven out of school.  A law requiring that bathroom use be dictated by the sex assigned at birth will increase the trans student's discomfort (including physical discomfort) and marginalization at school, inviting state-sanctioned bullying, and even violence - without making anyone safer.

Under a bill like HB2, a trans student presenting in their self-defined gender faces an impossible dilemma in using any school restroom.  Entering the boys' restroom while presenting as a girl, as the law would require of a trans girl, would invite abuse, while using the girls' restroom despite possessing male external genitalia would create a paralyzing fear of discovery.  A trans student who was not "out" to their school and classmates would in fact be required to out him- or herself, in order to avoid breaking the law by using the prohibited bathroom.  It is degrading, humiliating and cruel to draw attention to a student in this way, and force them to choose between outing themselves and breaking the law, and it is hardly better to put teachers or school personnel in a position to police student restroom use.  It is indecent to require teachers to think like child molesters or peeping Toms, more concerned about what is in a student's pants than what's in their head.

A day or so after Trump's reasonable, if uninspiring, remarks, Fox News' Sean Hannity attempted to corral Trump back into the right-wing "state's rights" fold, by re-interpreting Trump's ambiguous comment that "I think that local communities and states should make the decision."  Trump, it's safe to say, was probably unaware that HB2 emerged precisely from a conflict between a community (Charlotte) determined to practice nondiscrimination, and a state legislature that felt otherwise.  Because, again, I just don't think he cares that much.  "If it's bad for business, why do it?," seems to pretty much sum up his view.

With controversy roiling over HB2, the Obama Administration sent out the "Dear Colleague Letter on Transgender Students"  on May 13, 2016.  This guidance document, which went out over the signatures of Catherine Lhamon, Assistant Secretary for Civil Rights (DOE) and Vanita Gupta, Principal Assistant Attorney General for Civil Rights (DOJ), required schools, upon notice from a student, parent, or guardian, to treat students in a way "consistent with the student's gender identity," regardless of the student's sex or gender in previous records.  The letter further stated, "A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns." Crucially, the letter states, "When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity."

These new guidelines were promulgated under Title IX, a 1972 civil rights law that provides, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."  It is sweeping in scope, covering 16,500 local school districts in all 50 states, as well as 7,000 postsecondary institutions. 

Although the "Dear Colleague" letter set new nationwide standards, the substantive policy it imposed was hardly novel.  The Los Angeles Unified School District (LAUSD), the second-largest district in the nation with 640,000 students (more populous than Vermont though only 1/10 the size), implemented a policy protecting the rights of transgender and gender non-conforming students in 2005 (updated in 2011).  This policy, copied by other districts, has operated entirely without incident.

Maybe that's why, when candidate Trump addressed it, he rightly saw it as a non-issue.
But wasting no time, the State of Texas, joined by Arizona, Alabama, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin, filed suit against the government on May 25, 2016, and on July 6, 2016, sought a preliminary injunction against the enforcement of the Dear Colleague letter, taking particular exception to the bathroom rule.  On August 21, 2016, the preliminary injunction was issued by Judge Reed O'Connor of the Northern District of Texas. (Just as in State of Washington v. Trump, the current immigration case arising from Trump's Executive Orders, a federal district court order can apply nationwide.)  Should there have been any doubt about its purpose and scope, the injunction was clarified by Judge O'Connor on October 18, 2016, to apply nationwide, but only to the bathroom and locker room rules: the DOE and DOJ "are simply prevented from using the Guidelines to argue that the definition of 'sex' as it relates to intimate facilities includes gender identity."
Two weeks after Trump's election, on November 23, 2016, the Obama Administration sought a partial stay of the injunction pending appeal, seeking to limit it to the states involved in the litigation. Oral arguments before the Fifth Circuit were scheduled for February 14, 2017.

But on Friday, February 10, 2017, the DOJ quietly withdrew from the case, using language suggesting they may drop the appeal entirely.  That leaves the nationwide injunction in place, even as another case involving the Title IX Dear Colleague letter is set to be heard by the Supreme Court March 28, 2017.  Despite hopeful language from some trans rights groups, without the threat of DOE enforcement, the Dear Colleague letter is more like a dead letter.

On October 28, 2016, just a few weeks after Judge O'Connor clarified his injunction, the U.S. Supreme Court granted cert. in G.G. (Gavin Grimm) v. Gloucester County School Board, another case involving transgender student access to bathrooms.  The Fourth Circuit found in favor of the student, employing Auer deference to the Title IX Dear Colleague letter in interpreting Title IX to cover gender identity, and 34 C.F.R. 106.33, the "comparable facilities" requirement for single-sex school facilities, to require giving trans students access to bathrooms consistent with their gender identity.
Regardless of the outcome of the litigation over the "Dear Colleague" letter, and the posture of the DOJ and DOE under Trump, California's statewide A.B. 1266, in effect since 2014, gives students the right to "use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil's records."  Students in many other states and the District of Columbia also enjoy the protection of general laws prohibiting discrimination against trans students.  Meanwhile, the Gloucester (Virginia) County School Board numbers Arizona, Maine, Mississippi, North Carolina, South Carolina, and West Virginia among its amici opposed to the "Dear Colleague" interpretation of Title IX.

Those of us who care about the civil and human rights of trans students everywhere will be watching both cases attentively, hoping for the best but prepared for the worst from the DeVos DOE and the Sessions DOJ.  The grizzly bears are the least of our worries.
This essay originally appeared on Dorf on Law.

February 14, 2017 in Gender | Permalink | Comments (0)

Monday, February 13, 2017

Only Free Students Can Exercise School Choice

The President of South Africa offered Nelson Mandela his freedom if he would renounce violence and then remain silent upon his release.  Mandela rejected the offer, saying "Only free men can negotiate; prisoners can't enter in contracts.”  The concept of forced and unfair negotiation rings true in today’s education reform debates.  The new Secretary of Education promises to continue that trend. 

Over the past two decades, major education reforms have been forced upon disadvantaged students without the slightest recognition of the enormous power differential between the state and its disadvantaged students.  These students and their families have, time and again, been asked either to accept the deplorable state of their current education or try out some new reform—a reform that would not be aimed at deplorable school conditions. 

Public schools in the United States are demonstrably separate and unequal, and both measures are on the rise.  Take New York, for instance.  A recent report by the Civil Rights Project shows that two-thirds of African American students in New York attend a school that is ninety percent or more non-white.  Another recent study shows that in New York schools with higher levels of concentrated poverty, the state only spend 90 cents for every dollar it spends in other schools.  Nevada is even worse.  It only spends 60 cents on the dollar in schools with higher percentages of low-income students.  And the racial isolation of Latino and African American students in Nevada is among the worst in the nation. 

In the midst of segregation and inequality, education reform continues to demand that these disadvantaged communities make concessions, but state and federal government rarely, if ever, offer integrated or equal schools.  Instead, the state offers charters and vouchers.   New York has been a hotbed for charter school expansion.  Two years ago, Nevada adopted an aggressive voucher plan.   The hypocrisy of these responses is not new.  In the late 1990s, the Ohio Supreme Court declared the state’s funding system constitutionally inadequate.  A large portion of the state’s schools were so poor that the buildings were crumbling around the students.  The air in classrooms was not safe to breath and the floors not safe to walk on.  Elsewhere, schools simply did not offer parts of the curriculum because no one could teach it.  Rather than fix the problem, the state bought off its most segregated and unequal city—Cleveland.  It offered a select few in the city a way out in the form of vouchers.  Tellingly, the overwhelming majority of voucher students wound up in religious schools, but indicated they did not embrace the religion of their school.  They simply had to get out.

The rational choice of families forced to attend segregated and unequal schools is to take the charter school or voucher.  Even if that choice does not lead to better education, they cannot be blamed for trying to escape segregation and inequality.  We should, however, blame the state for putting them in this position.

In the weeks and months ahead, we need not debate the merits of vouchers or charters.  The response to the offer of vouchers and charters should be: give our disadvantage students integrated schools and equal funding and then we can talk about vouchers and charters.  Then we can talk about whether money matters.

The new Secretary of Education, Betsy DeVos, has shown no interest in fundamental education issues like this.  She proposes charters and vouchers, but has said nothing of ensuring equal funding or integration.  The sad truth is that it is not really fair to single DeVos out on this score.  Senators who narrowly secured her nomination are the same ones seeking to reverse the prior Secretary's efforts to ensure equal funding.  If DeVos does not reverse the regulations, these Senators plan to do it themselves by statute.

In one of the most poignant passages written by a court, the New Jersey Supreme offered a rejoinder to segregation, inequality, and the politics of reform aimed at other issues: “[E]ven if not a cure, money will help, and [disadvantaged] students are constitutionally entitled to that help.  If the claim is that additional funding will not enable [poorer students to achieve at higher levels], the constitutional answer is that they are entitled to pass or fail with at least the same amount of money as their competitors.”

In the logic of Nelson Mandela, only students free from segregation and inequality can exercise school choice.  Give them freedom.  Only then can they exercise choice that their more privileged peers already have.  

February 13, 2017 in Charters and Vouchers | Permalink | Comments (0)

Friday, February 10, 2017

Scholarship: Tinker in the Digital Age; Restorative Justice's Transformation in Education

When Words Are the Weapons: Using Tinker, Bell, and Premises Liability to Keep Schools Safe in a Digital Age

Bethany Poppelreiter, a former special education teacher and current law student, writes on "balancing off-campus student speech with the problems it can cause on campus." Part of the article's abstract is below; the article is available on ssrn here.

This Article suggests for the first time that much of the confusion can be eliminated by utilizing a framework for analyzing off-campus student speech based on the well-rooted doctrine of premises liability coupled with relevant portions of Tinker and Bell. This approach calls for an emphasis based on the identity of the speech target. Such an approach not only ensures essential protections to student speech, but also safeguards the institution of education through protecting the most important aspects of the school environment: teachers and students.

Restorative Justice from the Margins to the Center: The Emergence of a New Norm in School Discipline

Thalia Gonzalez has posted an article on the transformation of restorative justice in school discipline. An excerpt of the introduction is below, and the article is available on ssrn here

[I]f restorative justice was once characterized as highly localized and aimed at addressing specific behavioral issues, this construction has transformed. Restorative justice is now understood as a philosophy and practice shown not only to address disproportionality in discipline and dismantle zero tolerance, but as importantly to, “create a climate that promotes healthy relationships, develops social-emotional understanding and skills, increases social and human capital, and enhances teaching and learning.” Thus, the purpose of this Article is two-fold: (1) to characterize how restorative justice has moved from the margins of education policy to the center, and (2) to explore the emergence and cascade of restorative justice though the norm life cycle as understood through the lens of theories of normative change.

February 10, 2017 in Scholarship | Permalink | Comments (0)

Thursday, February 9, 2017

Charter School Law Overview

For those looking for the basics of charter school law or to just pick up CLE credits, there is a good opportunity coming up:

Live CLE Video Broadcast | March 2, 2017
2 HR CLE (3:00 pm - 5:00 pm Eastern)
This course, presented by a nationally recognized education attorney, will provide a comprehensive overview of the laws applicable to charter schools, including general education students, special education students, and discipline.
The course is for charter school administrators and governing board members, school attorneys, parent attorneys, and attorneys in other practice areas who have an interest in school law and school choice. In this seminar, our experienced faculty will walk you through the laws that govern charter schools. Learn how to handle with issues, matters and cases involving charter schools.

Learn more / Register online...
Key topics to be discussed:
• School Choice, Charter Schools and Constitutionality
• Sources of Charter School Law
• Legislative and Case Law Updates
• Complying with Federal Laws
• Special Education and Charter Schools
• Discipline of Special Needs Students
• Avoiding Exclusionary Practices
• Navigating the Application, Approval and Renewal Process
• Accountability Standards
• Funding Sources
Presented by Hope N. Kirsch

Hope N. Kirsch is a 20+ year attorney with the law firm of Kirsch-Goodwin & Kirsch, PLLC, in Scottsdale, Arizona. She represents and advises students and their families throughout the state of Arizona in all school related matters and disputes, including IEPs, due process, discipline, bullying, and restraint and seclusion.

February 9, 2017 in Charters and Vouchers | Permalink | Comments (0)

Greg Little Catches the Education Law Bug

Two years ago, working as pro bono counsel with the Education Law Center, Greg Little led a major litigation effort to force the state of New York to fairly fund education in its small cities.  At the time, Greg was a partner at White and Case.  Greg must have caught the education bug.  He is stepping down from his lofty position at White and Case and joining the Education Law Center to serve as its chief trial counsel.  Good news for education rights.  Bad news for states that fail to honor their constitutional obligations to their students.  I would also imagine that his unique experience will well situate him to secure even more pro bono assistance from law firms.  No one can accuse him of asking for something he was not willing to do himself.  The Education Law Center released this notice yesterday:

Gregory G. Little, a former partner at the international law firm of White & Case, has joined Education Law Center to serve as Chief Trial Counsel. Among the nation's most experienced trial lawyers, Mr. Little will lead ELC's efforts to enforce the education rights of public school children through legal advocacy and litigation.

Mr. Little has served as lead counsel in more than 50 trials in state and federal courts throughout the country and has achieved favorable outcomes in some of the most challenging and high profile commercial disputes in the U.S.

During Mr. Little's 35-year career as a trial lawyer he has represented major companies operating in the financial services, pharmaceutical, automobile, banking, tobacco, energy and utility industries, both from the U.S. and countries across the globe.

In addition to his work in the courtroom and at the negotiating table, Mr. Little has represented his clients in crisis management and has dealt extensively with media outreach in the U.S. and throughout the world. Mr. Little has also served as Senior Trial Counsel for the Securities & Exchange Commission (SEC) and Associate General Counsel for Philip Morris.

Mr. Little will utilize his extensive experience as a litigator and legal strategist to advance ELC's mission of ensuring equal educational opportunity for all public school children. Founded in 1973, ELC is among the most prominent and effective advocates for education equity in the U.S., especially for the millions of public school children at risk from family and community poverty, those who need to learn English, students with disabilities, and students of color.

At White & Case, Mr. Little coordinated the firm's substantial pro bono commitment to ELC, which currently includes serving as lead counsel in the New York "Small Cities" school funding litigation and in a class action lawsuit against the State of Michigan over the special education needs of children poisoned by lead in the drinking water in Flint. He has also served on the ELC Board of Trustees since 2013.

"We are thrilled that Greg is joining ELC as our Chief Trial Counsel," said ELC Executive Director David Sciarra. "Children in New Jersey, Michigan and New York have already benefited from his outstanding legal representation in cases involving egregious violations of their rights to education. Greg will be instrumental as we gear up to defend public education from coming efforts to delegitimize, destabilize and defund our public schools."

"I have been incredibly fortunate throughout my career to be in the right place at the right time, and this is certainly one of those times," said Mr. Little. "Joining ELC as Chief Trial Counsel at a time when public schools are under unprecedented attack is a great honor and I look forward to working with ELC to pursue legal remedies whenever and wherever legislators, governors and/or the Trump Administration attempt to undermine the education rights of our nation's public school students."

February 9, 2017 | Permalink | Comments (0)

Wednesday, February 8, 2017

New Report Focuses on Connection Between Criminal Justice and Education Policies, But the Real Problem is Education Quality

The Economic Policy Institute recently released a new report arguing that criminal justice policy is education policy.  The main thrust of the report is to point out the poor educational outcomes for students who have an incarcerated parent.  Its main findings include:

  • An African American child is six times as likely as a white child to have or have had an incarcerated parent. A growing share of African Americans have been arrested for drug crimes, yet African Americans are no more likely than whites to sell or use drugs.
  • Independent of other social and economic characteristics, children of incarcerated parents are more likely to:
    • drop out of school
    • develop learning disabilities, including attention deficit hyperactivity disorder (ADHD)
    • misbehave in school
    • suffer from migraines, asthma, high cholesterol, depression, anxiety, post-traumatic stress disorder, and homelessness

Those points are almost too obvious.  Of course, students with parents in jail will tend to perform worse than others, just as a students with millionaire parents will tend to graduate high school at much higher rates and go to more expensive colleges. The report acknowledges that the school-to-prison pipeline is a problem, but emphasizes that adult incarceration is making matters worse.  That is surely true, but if legislatures are not willing to fix the direct causes of poor educational outcomes, why would they address these ancillary causes?  And will addressing these ancillary causes substantially alter educational opportunity?

None of this is to disagree with or critique the suggestions in this new report.  They are on target.  But they jump a key point: states need to address problems in schools first.  Those are ultimately the ones that lead to adult incarceration and create a negative feedback loop, not the other way around.  

The source of the education problem is twofold: punitive approaches to school discipline and inadequate educational opportunities in low-income communities.  In fact, these two problems are intertwined.  As I argue here and here, school quality is, in large part, a function of discipline policy.  Until we recognize this connection, school quality will continue to lag and the school-to-prison-pipeline will proceed at full steam.  Everything else obscures the problem and prompts polemic, knee-jerk reactions.


February 8, 2017 in Discipline | Permalink | Comments (0)

Teachers' Bid to Roll Back Attack on Teacher Tenure in Kansas Fails, But the Overall Resistance Remains Strong

In 2014, the Kansas legislature significantly changed teachers' due process and tenure rights.  The new law "amended the Teacher Due Process Act, K.S.A. 72–5436 et seq., to remove many elementary and secondary public school teachers from long-standing statutory protections regarding the termination or nonrenewal of their annual employment contracts."  Of particular note was the elimination of notice to teachers of how they might improve any teaching deficiencies and an opportunity to actually do so.

Rather than directly challenge the substance of the new law, teachers argued that it violated a constitutional rule in the state that prohibits legislation from addressing more than one subject.  The bill stripping teachers of rights was also an appropriations bill.  Thus, teachers argued it violated the one subject rule.  The Kansas Supreme Court disagreed, reasoning that the appropriations related to education as well and, thus, did not violate the one subject rule. Kansas Nat'l Educ. Ass'n v. State, No. 114,135, 2017 WL 242658 (Kan. Jan. 20, 2017):

[The teachers' union] decries the adverse impact it alleges results to its members and public education in general by H.B. 2506's tampering with the Teacher Due Process Act. But the wisdom of the public policy choices reflected in any individual part of a bill is irrelevant to whether the legislation as a whole contains more than one subject. In this instance, H.B. 2506 does not “ ‘embrace[ ] two or more dissimilar and discordant subjects that cannot reasonably be considered as having any legitimate connection with or relationship to each other.’ 

Of course, several other states have attempted to undermine teacher rights and tenure in recent years.  Teachers efforts to resist those changes through litigation have been relatively successful.  See New Jersey, North Carolina.  Courts have also finally begun to turn against those lawsuits that have argued that teacher rights and tenure deprive students of their constitutional right to education. See Minnesota, California.  For more on the overall attack on teacher rights and its fundamental flaws, see here.



February 8, 2017 in Teachers | Permalink | Comments (0)

Tuesday, February 7, 2017

Scholarship on The Failure of Education Federalism and Procedural Due Process Rights of the Accused in Title IX Cases

Kristi Bowman:  The Failure of Education Federalism
Bowman's article uses Michigan's public education system to show the decline in public investment in education and the need for the federal government to "embrace a different model of federalism, cooperative federalism." Bowman writes, "In particular, the judiciary can create a federal floor of educational quality via Substantive Due Process and Equal Protection Clause jurisprudence, especially if it is willing to consider reviewing educational quality claims under a rational basis with bite standard." The article is available for download on ssrn.com here.
Tamara Rice Lave: Ready, Fire, Aim: How Universities are Failing the Constitution in Sexual Assault Cases
The Obama administration's efforts requiring higher ed institutions to take steps to prevent campus sexual misconduct under Title IX is likely to wither regardless of who becomes the new education secretary (see Derek Black's take on the Education Secretary's confirmation hearings here). But the ED may be more willing to explore the area of Tamara Rice Lave explores in her article, Ready, Fire, Aim: How Universities are Failing the Constitution in Sexual Assault Cases. In the article, Lave discusses how institutions may not be adequately protecting students' procedural due process rights and concludes by "considering how universities can more fairly and effectively respond to sexual assault." The article is available here.

February 7, 2017 in Scholarship | Permalink | Comments (0)