Friday, September 29, 2017
Pennsylvania Supreme Court Makes Momentous Leap Forward for School Funding: Does It Also Signal a New Trend?
On three prior occasions, the Pennsylvania Supreme Court has been asked to consider the possibility that school funding and other inequities in the state violate the state constitutional provision that the General Assembly "provide for the maintenance and support of a thorough and efficient system of public education.” Each time the Supreme Court has said no. The net result for students is one of the most arcane school funding systems in the nation. For a long time, the state did not even have a school funding formula, instead funding schools randomly, inequitably, and inadequately.
Yesterday, in William Penn School District v. Pennsylvania, the court entered a new era and took the position of most other state supreme courts--that it had the authority and duty to determine whether "the General Assembly imposes a classification whereunder distribution of state funds results in widespread deprivations in economically disadvantaged districts of the resources necessary to attain a constitutionally adequate education." It added: "We cannot avoid our responsibility to monitor the General Assembly’s efforts in service of its mandate and to measure those effects against the constitutional imperative, ensuring that non-constitutional considerations never prevail over that mandate."
As momentous as this step is for the children of Pennsylvania, the logic is over 200 years old. The Pennsylvania constitution sets out a specific legislative duty in education. That basic fact implicates the courts as well.
It is settled beyond peradventure that constitutional promises must be kept. Since Marbury v. Madison, 5 U.S. 137 (1803), it has been well-established that the separation of powers in our tripartite system of government typically depends upon judicial review to check acts or omissions by the other branches in derogation of constitutional requirements. That same separation sometimes demands that courts leave matters exclusively to the political branches. Nonetheless, “[t]he idea that any legislature . . . can conclusively determine for the people and for the courts that what it enacts in the form of law, or what it authorizes its agents to do, is consistent with the fundamental law, is in opposition to the theory of our institutions.” Smyth v. Ames, 169 U.S. 466, 527 (1898). Thus, we must be skeptical of calls to abstain from a given constitutional dispute. We hold that this is not a case that requires such abstention.
The decision also serves as an important counterpoint to recent trends among the courts. As I detail in Averting Educational Crises, the Great Recession may have motivated several state supreme courts to give legislatures a pass for the massive education cuts they have imposed over the past decade. There were no direct reversal of prior precedent but a seeming unwillingness to enforce it. This new decision in Pennsylvania, particularly given the negative precedent in the state, may be reason to hope that the troublesome trend of the past decade is nearing a trend. For now, it is too early to project. Regardless, as I emphasize in the article, the ebb and flow of constitutional enforcement is a dangerous game for the judiciary to play--one that will not serve education or the general institutional authority of the courts well in the long run. As I argue here, courts and constitutional enforcement in education are best served by prompting state legislatures to plan for educational crisis--because they will necessarily occur--not by giving states a pass when they do occur.
Thursday, September 28, 2017
The title of this essay is more rhetorical than anything. Laws and courts, not students, shrink or expand free speech rights. Yet, student attitudes about free speech and other constitutional rights certainly have real world impacts and, in some instances, have incidental effects on legal doctrine. A new study by Brookings reveals that college students have a relatively narrow view of free speech rights. Students were asked if the First Amendment protects hate speech and here are their responses:
These opinions are having spillover effects on the policies that universities do and do not adopt. Universities are struggling to balance the interests of free speech against the anti-harassment concerns and student demands that some speakers simply not come to campus.
The Foundation for Individual Rights in Education (FIRE) has made it its business to challenge policies that restrict speech. That business appears to be growing. Two years ago, they filed a lawsuit against my University regarding its policies on free speech zones and the investigation of harassment claims, alleging those policies infringe on free speech rights. Interestingly, that case did not get to the merits. The University changed its policies and the district court dismissed the case as moot. Plaintiffs are now appealing the issue as to whether they are still entitled to an injunction against future actions by the University. This case is not unique. A quick look at FIRE's docket reveals a number of analogous cases have been filed and are pending in several other jurisdictions.
The point of this post is not to analyze the doctrine but to point out students' role in these shifts. This free speech shift reminds me of an article Jason Nance authored a couple of years ago about the increase in suspicionless searches in public schools. His empirical research strongly suggested that schools were regularly violating students' privacy rights.
The Supreme Court defines the scope of students' privacy rights, in part, based upon their reasonable expectations. So what happens when schools violate students' rights so often that they no longer expect privacy? Does that actually shrink their right to privacy? If so, Nance's research is extremely troubling.
In the case of free speech, what happens when students become so unable to countenance opposing points of view that they are actually wounded or harmed by those views? The First Amendment is tougher on this issue than the Fourth, but it warrants consideration because it is true that students have the right to be free from racially, sexually, and other forms of hostile environments. Thus, schools can restrict speech that crosses that line. I strongly defend the existence of that line and am sympathetic toward Universities that enforce it appropriately. Yet, the factual question of when an environment becomes hostile may very well be one that could move based on student attitudes.
Monday, September 25, 2017
Court Rejects Plaintiffs' Bid to Hold Local County Accountable for Its Role in Inadequate and Unequal Education
The North Carolina Court of Appeals affirmed the dismissal of plaintiffs' complaint in Silver v. Halifax County Board of Commissioners. The case involved a claim that the Board's maintenance and operation of three distinct school districts within the county violated students' right to a sound basic education under the state constitution. The claim focused on the fact that the districts were racially identifiable, unequally funded, and qualitative disparate. Moreover, these facts were attributable to local, not state level, decisions.
Plaintiffs argue that as delegates of the state, the local authorities are obligated to provide a constitutionally appropriate education. To the extent their actions deprive plaintiffs of that education, plaintiffs are entitled to relief. The Court of Appeals read precedent far more narrowly, reasoning that prior state supreme court decisions had only directed the state to comply with the constitution. Thus, if plaintiffs have a gripe with the education in Halifax, they should take it up with the state: "the correct avenue for addressing plaintiffs’ concerns in the present case would appear to be through the ongoing litigation in Leandro I and Leandro II [the longstanding school adequacy suit against the state]."
The court, however, seemingly missed two distinctions. The first is causation. While the harms that plaintiffs in Silver suffer may be the same as the harm in Leandro--inadequate education--plaintiffs allege a different cause. To say plaintiffs must nonetheless sue the state is akin to saying that a victim of a car accident cannot sue the driver of the car that hit him because a manufacturing defect may have also existed and superceded the negligence of the driver. There may very well be a superceding defect, but that possibility does not preclude the negligence suit as a prima facie matter. Rather, the case must be litigated to determine the actual causes of the harms.
Second, the court assumes that prior case law placing the constitutional duty on the state means that the duty exclusively rest there. As the dissent in Silver points out, however, those prior decisions did not raise the question of local duties. Thus, there is no reason to infer those prior cases exclude a local duty. Moreover, as I detail in an article on access to middle income peers, some constitutional duties logically flow to local districts. Certain decisions, such as student assignment, are made at the local level and would be impracticable at the state level. The problem is not with state policy, but local implementation. The state may very well be responsible for those local failures. Often it is, but that does not mean this is always the case.
School discipline makes this point even clearer. The state has a constitutional duty to deliver education to students, but it is often the local principal or district that makes the decision to take that education away. Taken to its extreme, the opinion in Silver might suggest that those students should sue the state rather than their district. The reams of lawsuits against local districts reveal they are appropriate defendants.
Wednesday, September 20, 2017
Parents Involved v. Seattle Schools is back in the news again, although for different reasons. This time involves a judicial nominee’s interpretation of the case. Earlier this month, President Trump nominated Minnesota Supreme Court Justice David Stras to the Eighth Circuit Court of Appeals. Thus far, Senator Franken is exercising his right under traditional senate rules regarding home-state senators to block Stras’ appointment. One of the topics of conversation is Stras’ approach to civil rights issues, including an essay he wrote on Parents Involved v. Seattle Schools.
Parents Involved is the most recent and potentially last decision our Supreme Court will ever decide on school integration. As such, the holding in Parents Involved may be the final door through which all future efforts toward integrated schools must past. It is, in effect, the book end to Brown v. Board of Education. Brown began as a challenge to the intentional segregation of students by race. In Parents Involved, the school districts had not engaged in intentional segregation. Rather, they had more recently taken race into account to try to eliminate school segregation that stemmed from housing patterns. The question was whether they could do so.
Although involving very different factual circumstances, both cases establish basic and wide ranging principles of school integration law. And for that reason, both cases also implicate a struggle over the fundamental vision of equality in schools and attempt to articulate a vision to an audience far broader than the lawyers. To be clear, Parents Involved is no Brown v. Board of Education, but it is no ordinary case either. It requires the careful attention of jurists, education leaders, and communities.
So what exactly did the Court hold? The most popular answer among law students is that the Court held that the voluntary integration plans in the case were unconstitutional. They are correct on that score, but the real question is why they are unconstitutional. Most students assume that the Court refused to find a compelling interest to pursue integration. That is not true. The Court held that the plans were not narrowly tailored.
Five Justices found that the districts had a compelling interest to pursue diversity and integration. If they did not have a compelling interest, there would have been no reason to move to the second question of narrow tailoring.
Justice Kennedy is the swing vote on both points. Justice Kennedy was emphatic that school districts have a compelling interest in pursuing integrated schools, but they were not careful enough in doing so. Four justices agreed with him that schools have justifications for integrating.
Four different justices agree that the school districts’ methods were flawed. All told, five votes support every position that Justice Kennedy took and no more than four votes support any other position on any other issue. In short, there is no way to get around the fact that his opinion represents the holding of the court.
All three Courts of Appeals that have taken up the issue, along with U.S. Departments of Education and Justice, agree that Justice Kennedy’s opinion is controlling.
This uniform judgment, particularly on a case of such importance, is what makes David Stras’ prior essay on Parents Involved curious. He wrote “many in the media and blogosphere are putting way too much emphasis on Justice Kennedy’s separate opinion in these cases.” First, he reasons that there was not “that much distance between the [Chief Justice Robert’s opinion striking down the integration plans] and Justice Kennedy on most of the important issues in this case.” Second, “Justice Kennedy’s opinion is only controlling to the extent that it differs from” certain parts of Roberts’ opinion. He then offers his third and main point: commentators inappropriately “assume the constitutionality of race-conscious alternatives on the basis solely of Justice Kennedy’s separate opinion.” He goes so far as to call this assumption “especially dangerous.”
Stras’ perspective is curious because it overlooks key details in the Court’s opinions and does so with a skepticism of school integration. His point appears to be to minimize the importance of Kennedy’s crucial decision, rather than accept its’ import: racial diversity and integration are compelling interests and states are free to pursue them under a number of different circumstances.
Kennedy’s own words negate Stras’ argument that there is not much distance between the plurality opinion and Kennedy’s. Justice Kennedy indicates that he is perplexed that the plurality would seemingly bar the consideration of race in all contexts and require districts to ignore de facto resegregation in schools. Thus, Kennedy writes the plurality is “too dismissive of the legitimate government interest” school districts have in pursuing integration and he “cannot endorse” the plurality's opinion, which he calls “profoundly mistaken.” He writes that “diversity . . . is a compelling educational goal a school district may pursue,” as is “avoiding racial isolation.” The plurality, in contrast, writes that the only compelling interests are remedying past discrimination and pursuing diversity in higher education. In short, the difference between Kennedy and the plurality could not be further on the key issue of whether a district can pursue voluntary integration.
Stras’s second point, arguing that there was not much controlling analysis in Justice Kennedy’s opinion, is wrong if one carefully reads the case. Stras’ essay may miss nuanced points because he over-interprets the plurality opinion by Chief Justice Roberts (the parts that Kennedy did not join) and under-interprets Justice Kennedy’s opinion.
The plurality opinion is held together by a single precise phrase: “individual racial classifications.” On first read, one might not notice that the plurality uses this phrase, as its opinion is otherwise broad and sweeping. But the reason the plurality uses this phrase is that Justice Kennedy uses that phrase. Justice Kennedy is willing to strike down the desegregation plans in Parents Involved not because they consider race, but because they rely on individual racial classifications. Had they pursued other race conscious means to integrate, Kennedy’s own opinion indicates he likely would not have struck down the plans. He would have agreed with the dissenters and, in doing so, those dissenters would have become the majority with five votes. Thus, the distinction between individual race classification and general race classification is central to the holding and rationale of the case. The entire case turns on Justice Kennedy’s articulation of this line and his judgment that the plans had crossed it.
To be fair, Stras acknowledges that Justice Kennedy’s opinion is controlling in most respects, but that only leads Stras to his third point that following Justice Kennedy’s in all respects is dangerous. Following Justice Kennedy’s opinion might seem dangerous if Stras missed the nuanced distinctions regarding individual racial classifications. This type of error on such an important issue is one that some would argue indicates that Stras is not careful enough to be on the Eighth Circuit.
Or it might be that Stras thinks Justice Kennedy’s opinion is dangerous because Stras simply disagrees, as a matter of substance, with Justice Kennedy and is stretching to read Justice Kennedy’s opinion as narrowly as he can. It is hard to say what drove Stras’ essay, but if it is the latter, those who are generally committed to civil rights are understandably wary of his nomination.
Thursday, September 14, 2017
When State Discretion Turns Against State Superintendents of Education; Another Flaw of the Every Student Succeeds Act
In Abandoning the Federal Role in Education: The Every Student Succeeds Act, I detail the numerous ways in which the Act eliminates federal leadership in education and leaves states to implement almost any sort of accountability system they can dream up. The shift in power is so significant that Act does not, as a practical matter, demand accountable. Instead, it demands the appearance of accountability. This, I argue, allows states to manipulate the system.
The article did not consider the possibility of in-fighting within state bureaucracies. The paper, for the most part, speaks of the "state" as a monolithic unit. It focuses on the worst case scenario in which the legislature, state department of education, and powerful school districts are all in favor of an accountability system that covers up their failures. Not all states, however, will fit this framework. Recent events in Alabama suggest that, once one moves beyond that framework, curious disagreements can happen at the state level.
Edweek reports that
[Michael] Sentance was hired by the [Alabama state] board in August of last year to replace longtime Superintendent Tommy Bice who retired after a years-long battle over the expansion of charter schools and a dispute between the state and local officials over how to rank the state's districts and schools.
. . . .
Sentance quickly ran into political turmoil as he traversed the mostly rural, economically deprived, ethnically diverse and politically conservative state to gather thoughts on what the components of the state's ESSA plan should be. Meanwhile, the state's department began to take over Montgomery Public Schools, one of the largest districts in the state, a process Sentance said would bring stability, autonomy and school choice, but which parents and school officials called unfair.
He sided with district superintendents in a debate over whether the state should keep or get rid of its A-F letter grades of schools' performance.
But in an evaluation sprung on him by the state board last month, district superintendents and board members took issue with his leadership style and policymaking.
"I do not take this situation lightly, and as President of the State Board of Education, I will ask the Board to accept his resignation," Ivey said in a statement. "Over the past two years, Alabama has experienced far too many changes in state government. As with previous changes in leadership positions, we will use the pending resignation of the state superintendent as an opportunity to move forward and begin a new chapter in public education.
The article also indicates that the national average tenure for state superintendents of education is barely two years. As a result, there is no continuity between the development, submission, and implementation of ESSA plans.
The lesson I take from this story is the possibility that the ESSA may have made some state superintendents' jobs a lot harder. Under NCLB, there was far less flexibility. Beneath the surface, a state superintendent was able to game the state's results, but the metrics and methods of the accountability system were set by federal law. Putting aside the question of whether NCLB was a normatively good law, it set clear parameters for state superintendents. They knew what their job was and had legal cover if legislators or other state political actors criticized them.
The ESSA, in contrast, offers states and their superintendents a universe of options. It is almost entirely up to them how they approach school improvement, ranking, accountability, and quality. As a result, there is very little cover for superintendents who might want to do what they think is best for schools and students, but in the process might make the state look "bad." If a state board or state legislature wants to manipulate its accountability system and a state superintendent does not, the superintendent can easily find herself as the odd person out.
If these respects, the ESSA accomplishes two distinct and problematic devolutions of power. First, it cedes power to states, which I demonstrate is highly problematic here. Second, even if state power is not inherently problematic, the ESSA incentivizes power struggles and instability at the state level.
The first was the specific intent of the Act. The second is likely an unintended negative consequence.
Tuesday, September 12, 2017
Bigger Pies, Better Resource Allocation, or Information? Three Futures for Education Rights Litigation By Chris Elmendorf & Darien Shanske
Education is special in the eyes of the law. State constitutions rarely require the government to spend money on anything, let alone to spend it well. Yet virtually every state constitution provides for a system of free public schools, and many courts have treated state governments as having a legally enforceable duty of care with respect to education.
But what exactly does this duty of care entail? One might expect this question to be reasonably well settled, as public-interest lawyers have been litigating education rights cases since the early 1970s. It is not. Two competing visions of the duty of care are playing out today in cases across the country. One holds that the state’s primary responsibility is to provide an ample fiscal “pie” for local school districts. Funding arrangements must ensure that all districts can afford to pay for decent facilities and programs. This vision motivates many of the claims that were filed in response to school-funding cutbacks during the Great Recession. The other vision holds that the state’s primary duty is to allocate efficiently whatever funds it appropriates for education. Informed by conservative critiques of public-sector bloat and interest-group politics, this vision calls on courts to redirect wasteful spending and unfetter local school administrators, but without touching the “political” question of how much to spend. The better-allocation vision undergirds a recent and exhaustively detailed trial court ruling in Connecticut, as well as challenges to teacher-tenure and seniority rules now pending in Minnesota, New York, and New Jersey.
Conservative opponents of bigger-pie litigation have long argued that the empirical evidence of the effect of school spending on student outcomes is too shaky to warrant judicial intervention. Liberal critics of the new teacher-tenure lawsuits have started making precisely analogous arguments in better-allocation cases, with no apparent sense of irony. But no one has asked whether states themselves might bear constitutional responsibility for the lack of reliable information about likely effects of plaintiff-sought reforms.
In a forthcoming law review article, we pose and answer this question, developing a new, information-centric vision for education rights litigation. Under our account, the states’ primary responsibility today is to structure their educational systems so that researchers and policymakers can figure out which interventions or reforms would actually improve the constitutional performance of the school system. Courts uniformly agree that the constitutional function of public schools is to prepare children for a lifetime of productive participation in economic, political, and civic life. But researchers know very little about the effects of educational reforms on adult outcomes—and the states bear much of the blame for this.
As our article explains, states exercise enormous control over the production of knowledge about education, especially about long-run effects. This control is wielded through the architecture of administrative data systems; through the rules for assigning students, programs, and funding to schools; through the manner in which educational reforms are implemented; and through the terms on which the state provides access to administrative data.
States already possess constitutionally urgent information about the outcomes that schoolchildren realize as adults. This information is scattered across tax, voting, health, welfare, and criminal justice agencies. But, for the most part, state record-keeping systems have not been designed to enable linkage of educational and other records—and record-linkage is necessary to understand the long-run impact of educational reforms. Some states have actually banned the use of critical administrative datasets for research purposes. Likewise, in rolling out educational reforms, states rarely consider whether the rollout will enable credible tests of the reform’s effects. (Typically this requires well-defined “treatment” and “control” groups, which are similar to one another on average.)
Judicial recognition of a state duty of care with respect to the production of knowledge about education wouldn’t turn children into lab rats. States would still have to protect student records from privacy-compromising disclosures, and state officials, not researchers, would continue to set priorities.
But states would no longer be free to ignore how their own decisions affect what can be learned about the long-run effects of the state’s educational policies and programs. At a minimum, states would have to issue and periodically update a plan that identifies barriers to learning about how the state’s educational objectives can be achieved, and that explains what the state intends to do about it. Arbitrary barriers, such as flat prohibitions on the linkage of educational and other administrative records, would be vulnerable to constitutional attack. And in “bigger pie” and “better allocation” litigation, courts would consider not only whether the plaintiffs’ evidence is strong enough to order statewide reforms, but also whether the difficulty of learning about the effects of spending levels or allocative constraints without the cooperation of the state warrants a test of the plaintiff-sought remedy, which would be implemented temporarily in a randomly selected subset of schools or school districts.
Our informational gloss on the state’s duty of care with respect to education offers a way forward in the many states whose courts have, on separation-of-powers grounds, declined wade into the Stygian swamp of funding and allocative disputes. Courts can address barriers to the production of knowledge about education without touching large-scale questions about how much to spend on education and how to spend it. Whatever else the states may owe to disadvantaged children, at least the states must make it possible to learn whether their efforts to better educate those children are doing any good.
Thursday, September 7, 2017
In case readers missed it in the recent flurry of news about the Deferred Action for Childhood Arrivals (DACA) program, here's the link to UC Davis professor Rose Villazor's op ed in the New York Times, What Do Dreamers Do Now?. The Times also ran its education issue this weekend, featuring an article on the resegregation of American schools in The Resegregation of Jefferson County. Blog editor Derek Black discussed the court order involved in his post this summer, Why Schools Still Can't Put Segregation Behind Them.
Minnesota Court of Appeals Rejects Constitutional Challenge to Teacher Tenure, But Did It Focus on the Wrong Reasons?
Earlier this week in Forslund v. Minnesota, the Minnesota Court of Appeals upheld the dismissal of plaintiffs’ challenge to the teacher tenure statutes in the state. As in Vergara v. California, the Forslund plaintiffs had argued that teacher tenure statutes violate their right to education under the state constitution because they keep ineffective teachers in the classroom. The Minnesota Court of Appeals held that plaintiffs’ claim was non-justiciable. More specifically, the court reasoned that considering plaintiffs’ claim on the merits would require the court to adopt qualitative standards regarding what amounts to an adequate education and ineffective teaching. Judgments regarding those standards, according to the court, were reserved to the legislature, which had yet to set those standards.
In reaching its decision, the court relied heavily on another recent court of appeals case, Cruz-Guzman v. State. In Cruz-Guzman, the court had rejected, as non-justiciable, plaintiffs claim that school segregation violated their right to education. The Minnesota Supreme Court has since granted certiorari in Cruz-Guzman. Before the Supreme Court, education law scholars and the Education Law Center point out in an amicus brief that the court of appeals wrongly decided Cruz-Guzman. High courts routinely adjudicate educational adequacy and equality claims. The Minnesota Court of Appeals refusal to do so in Cruz-Guzman marks it as an outlier. Moreover, Minnesota Supreme Court precedent in Skeen v. State recognized that these types of claims are justiciable in Minnesota as well.
The Court of Appeals in Forsland does identify some potential statutory standards for assessing plaintiffs’ claims, but reasons that they are insufficient. While the court correctly indicates that those statutes do not definitively resolve plaintiffs’ claim, they do provide baselines for the court to rely on. Rather than justiciability, the problem seems to be an unwillingness of this court to engage statutory and constitutional interpretation. But that is the exact type of inquiry that other courts have undertaken.
Putting those justiciability critiques to the side, the court of appeals does deserve some credit. In a few instances, it skirts close to the merits of the case and hints at what I believe is the fatal flaw in teacher tenure challenges: “ineffective teachers will remain in the education system even if the teacher-tenure statutes are held unconstitutional” and “Appellants do not identify what percentage of ineffective teachers would demonstrate an unconstitutional burden on children’s right to an adequate education.”
As I explain in The Constitutional Challenge to Teacher Tenure,
First, plaintiffs lack evidence to demonstrate that tenure is causally connected to ineffective teaching. Ineffective teaching might persist with or without tenure. For instance, labor market forces, segregation, school funding, and school leadership significantly contribute to ineffective teaching. No evidence suggests that tenure supersedes these factors. Moreover, even if eliminating tenure allowed administrators to more easily remove ineffective teachers, eliminating tenure could also produce indirect effects that might undermine the teaching profession overall. If so, the net result of eliminating tenure could be negative, and tenure would not play the causal role that plaintiffs assume.
Second, even if tenure causes ineffective teaching, plaintiffs have not demonstrated that the number of ineffective teachers that tenure protects rises to the level of a substantial and systematic educational deprivation. For instance, one out of a student’s ten teachers may be ineffective, but that teacher does not necessarily undermine the student’s overall educational opportunity to the extent necessary for a court to deem the student’s education inadequate. Even if inadequate, plaintiffs may need to show systematic repetition of the problem. Otherwise, random local variation, rather than state policy, would be the cause of the inadequacy. . .
Third, ignoring these and other serious causal questions, plaintiffs rely on generalized social science about the effects of quality teachers on student outcomes. This generalized research does not address the effects of tenure on student outcomes. Even if it did, generalized evidence of this sort is insufficient to establish the specific state level causation that courts have required in school funding cases.
Yet, on their face, teacher tenure challenges present plausible and justiciable claims. If plaintiffs state plausible and justiciable claims, rules of civil procedure in many states provide them the right to attempt to make their claim in court, even if plaintiffs are probably wrong. Therein lies the quandary in teacher tenure challenges. When they present claims that will almost certainly fail when we dig into the facts, should courts be required to expend their resources on the case? As a matter of practicality, that seems like a bad idea. But given that plaintiffs dispute the facts, some state rules of procedure would allow them to move forward anyway.
The one saving grace for dismissing these cases is that the particular remedy plaintiffs ask for in these cases raise serious separation of powers concerns. As I explain,
Plaintiffs identify tenure as a singular flaw in state law and its elimination as a singular solution. No prior litigation to enforce the right to education has ever narrowed its focus so far, and for good reason. The details of educational policy, including solutions to constitutional violations, rest within the discretion of legislatures. Where more than one solution to a constitutional violation is possible or reasonable, constitutions vest legislatures with the discretion to choose among them.
The potential solutions to ineffective teaching and teacher removal are multifaceted, placing them within the domain of the legislature and making them ill-suited to judicial prerogative. Moreover, plaintiffs assume that some other better alternative to a tenure system exists, but current research and litigation indicate serious practical and constitutional due process flaws in the alternatives. None of the foregoing is to minimize the problem of ineffective teaching. Ineffective teaching demands a solution, but presuming that eliminating tenure through constitutional litigation is a solution, much less the best among many competing possibilities, is dangerous.
Read my full analysis of teacher tenure challenges here.
Tuesday, September 5, 2017
Two articles posted to ssrn.com examine the recent criticism of Title IX procedures for the accused in campus sexual assault investigations. Details are below.
Excerpt from Prof. Buzuvis's abstract: This Article examines the recent spate of disciplined-student cases in an effort to harmonize Title IX compliance with the procedural rights of students accused of sexual assault. The Article argues that neither the fact of litigation by disciplined students nor the examples of their occasional success undermines Title IX and its application to sexual assault. Such litigation is not evidence of a problem with Title IX or a reason to withdraw universities’ responsibility to engage a prompt and equitable response to sexual assault.
Adapted from the author's abstract: College campuses are a site of intractable clash between advocates fighting gender violence and proponents of students’ due process rights – or so the popular press, legal journals, and some recent law suits claim. In fact, these two camps share much, including common ideological commitments to education access, investment in school discipline systems’ actual and perceived legitimacy, and benefit under a rapidly developing legal regime. Despite assumptions to the contrary, federal school sexual assault law provides accused students with procedural rights unavailable elsewhere in federal law for students accused of any other form of misconduct. One might think, then, that advocates for student due process would celebrate the expanded procedural rights available in gender violence disciplinary hearings. Despite these commonalities, critics and advocates maintain a narrative of warring factions, explained in large part by rape exceptionalism and the dominance of criminal law in the public imagination regarding responses to rape and other sexualized harms. This Article maps out the two movements’ overlooked common ground in order to demonstrate the great loss to students that results from the warring factions narrative.
Removing Confederate statues is news again, which reminds me of a high school sports schedule that I saw while traveling in Oklahoma last fall. The schedule was for an Oklahoma high school sports team called the Savages, illustrated with the expected imagery of a Native American face and an arrowhead. As thousands of students start their public education this fall, they will enter schools where mascot names also are considered as slurs for their identity. What matters is the present meaning of these symbols, mascots, and names, where children are educated. In Montgomery, Alabama, students continue to be educated in places named after men who would not have recognized most of the current students as human. Not content with refusing the change the names, the state later preserved Confederate school names into law under the guise of historical preservation, even though many of the Civil War-era school names occurred during the same periods that Confederate statues were erected to resist desegregation and against the wishes of at least one CSA general. While I am often told how bored and resentful Americans are with "identity politics," some of us are content to saddle schoolchildren with those identities. As we take down monuments that no longer reflect our values, let us also revisit the names of the places where our schoolchildren attend each day, when those names neither honor those values nor the children inside.
Last week, in Henry v. S.G., the Supreme Court of Georgia placed a significant dent in the logic of zero tolerance discipline. The case involved a fight between two high school students. In typical fashion, Locust Grove High School automatically suspended both students. After all, there was a video of the fight and both students were involved. "The [school] hearing officer found S.G. guilty of violating the rules with which she was charged 'for being involved in a fight on the school grounds.'”
The problem is that the video strongly indicates that one of the students was the victim. S.G. was chased down by another student and then tried to avoid the fight, going so far as to hold her hands up and walk away. But after she walked away, the other student lunged at her and the fight ensued.
The Georgia Supreme Court found that being a participant to a fight is not enough alone to justify an expulsion. The Court hung its analysis on the fact that a Georgia statute grants individuals the right to use self-defense and that the state board of education has also previously recognized self-defense as an affirmative defense in discipline proceedings. Readers might recall a similar case in Florida involving a student who "stood her ground" after exiting the school bus.
The troubling part of these cases is how heavily they rest on these statutory rights of self defense. In the absence of these statutes, a school might theoretically determine that self-defense is not tolerated. Significant precedent regarding school's discretion would support the schools.
As I argue in Ending Zero Tolerance, some zero tolerance policies are constitutionally irrational and should be struck down on that basis. Of course, when a statutory rationale exists, avoiding constitutional questions is appropriate. One might, however, read these statutory cases as implicitly bolstering the irrationality of zero tolerance. These state legislatures have recognized the impropriety of punishing those who may very well be victims. It is not that the state wants people to fight back, but that punishing them under these circumstances defies logic. The aggressor and the defender are simply not comparable in terms of culpability (assuming the defender does not use the occasion to overreact).
The Minnesota Supreme Court took a step toward this approach last year when it held that a student's intent in a weapons case matters. The student had accidentally left a knife in his backpack that he used for cutting twine on the farm over the weekend. The Court held that this accidental possession of a weapon did not amount to a "willful violation" of school rules.
Together, these cases confirm two points emphasized in my book. First, students seeking to challenge expulsions and suspension generally stand a better chance in state courts than federal courts. Unlike federal courts, these state cases involve courts taking the issues very seriously and trying to reach a decision that respects student rights. Second, courts can and must play a role in student discipline cases. They are the last line of defense for students. Many schools are still willing to hand out what the most extreme forms of punishment that, without courts, will go unchecked.