Tuesday, October 31, 2017
The National Coalition on School Diversity issued this statement:
DeVos Eliminates School Diversity Priorities in New Competitive Grant Program Priorities
On October 13th, the Department of Education published new Proposed Supplemental Priorities and Definitions for Discretionary Grant Programs.
In these new proposed priorities, Secretary DeVos continues to weaken federal support for diverse schools, eliminating supplemental priorities for programs that work to increase racial and socioeconomic diversity in schools while emphasizing school choice. During the Obama Administration, NCSD advocacy played a key role in the promulgation of supplemental priorities for school diversity in 2014, and socioeconomic diversity in 2016.
Comments on the proposed priorities are due November 13th.
NCSD is currently formulating a strong response to the Secretary's latest attack on programmatic support for diverse, equitable schools. We encourage our membership and readers to contact NCSD staff at firstname.lastname@example.org to join our efforts.
New York Appellate Court Says Evidence of Education Deprivations Is There; Trial Court Just Needs to Examine It
A New York appellate court in Maisto v. State has reversed the lower court decision in the "Small Cities" school funding litigation. Litigants had put on extensive evidence of various deprivations in education resources and their connection to student outcomes. In 2016, however, the trial court dismissed the case with rather summary logic. The trial court reasoned that because current funding levels exceeded those previously proposed and sanctioned by the courts in 2006, there was no constitutional violation. As the new appellate decision emphasizes, that logic is extremely misguided. The real question is whether students in the plaintiff districts are receiving a sound basic education, which requires an assessment of inputs and outputs, which the trial court did not do.
This distinction between the validity of the old remedy and the current provision of a sound basic education is key and confirms a curious issue I raise in my casebook, Education Law: Equality, Fairness, and Reform. In the 2006 Campaign for Fiscal Equity decision, New York's highest court had evaluated the differing assessments of the cost of providing an adequate education in New York. A commission had proposed one number, the governor another, and the legislature another. The court ultimately deferred to the state's proposed number, even though it was lower than others, concluding that the state's number was not unreasonable. Readers are often struck by the fact that after all the prior tough decisions in CFE, the court ends the case on a reasonableness standard. In the notes following the case, I try to lead readers to the logic of the reasonableness standard. I ask: "Do the plaintiffs have the right to return to the court if these estimates later prove to be insufficient, or is it enough that the state acted in good faith or within reason?" The logical answer has to be the later.
The reasonable approach in CFE is akin to the approach of school desegregation: the state gets the first shot at a remedy and is permitted to move forward with reasonable remedies, even if the court of experts might prefer others. But this has no bearing at all on plaintiffs ability to bring future cases. Moreover, if those so called "reasonable" remedies do not work, plaintiffs have the right to return to court and establish that fact.
In desegregation, failed prior remedies also provide a basis for less deference toward state remedies in future remedies. In fact, the state's past "good faith" compliance with desegregation is an explicit factor in court's authority to find new violations and enjoin them. The new curious question will be the extent to which New York courts should afford less deference to the state's estimates of an adequate education.
For now, it is worth reviewing what the current court held. It provided a nice overview of the relevant precedent and standards and clear directions to the trial court moving forward:
The Education Article declares that “[t]he [L]egislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated” (N.Y. Const, art XI, § 1). To that end, the Court of Appeals has held that the Education Article “ ‘requires [defendant] to offer all children the opportunity of a sound basic education. Such an education should consist of the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury’. The sound basic education guaranteed by the [NY] Constitution requires [defendant] to provide students with the ‘opportunity for a meaningful high school education, one which prepares them to function productively as civic participants' and ‘compete for jobs that enable them to support themselves'.
To establish a violation of the Education Article, a plaintiff must “establish a causal link between the present funding system and any proven failure to provide a sound basic education to [the affected] school children”. This burden may be met by proof regarding the “ ‘inputs' children receive—teaching, facilities and instrumentalities of learning—and their resulting ‘outputs,’ such as test results and graduation and dropout rates”, and, where inputs and outputs are both deficient, a causal link between the two, which may be established by showing that increased funding would provide better teachers, facilities and instrumentalities of learning that improve student performance. With respect to causation, the Court of Appeals specifically rejected the argument that poor socioeconomic conditions excuse poor outputs or results.
. . . .
In response to the [Campaign for Fiscal Equity] cases, Foundation Aid was enacted to increase school aid funding on a statewide basis by approximately $5 .5 billion annually when fully implemented over a four-year period. Foundation Aid was distributed as originally planned in the 2007–2008 and 2008–2009 budget years; however, aid to education was reduced in the 2009–2010 budget in response to the “largest budget gap ever faced by the State,” which was caused by the global financial crisis. Specifically, Foundation Aid was frozen at then-existing levels and the phase-in period was extended from four years to seven years. In addition, the 2010–2011 state budget introduced a “[g]ap [e]limination [a]djustment” (hereinafter GEA), which reduced formula-based school aid by $1.4 billion in that budget year. The GEA was continued in the 2011–2012 through 2015–2016 budgets, but was not continued in the 2016–2017 or 2017–2018 budgets.
Although a claim based solely upon the allegation that Foundation Aid was reduced is insufficient to state a cause of action for violation of the Education Article, plaintiffs did more than simply put forth that conclusory assertion. Plaintiffs' causes of action—grounded in the assertion that the actual funding levels provided following the CFE cases were insufficient to provide the affected students with a sound basic education—were based on detailed, district-specific allegations of insufficient inputs, deficient outputs and causation. More to the point, plaintiffs' proof at trial, which Supreme Court acknowledged established a prima facie case that defendant failed to fulfill its constitutional obligation, was more than sufficient to require analysis under the CFE II framework on a district-by-district basis. Indeed, by noting that changes in educational funding provided by defendant must still “deliver on its obligation to ensure that schoolchildren are provided the opportunity for a sound basic education”, the court acknowledged that any reductions in funding must pass constitutional muster, which is an inquiry that can be answered only through CFE II analysis.
The next key paragraph in the decision provided:
Thus, Supreme Court erred by proceeding directly to the “remedy” stage set forth in CFE III and affording deference to the Legislature without first applying the framework established in CFE II to determine whether plaintiffs had established a constitutional violation. No deference is due the Legislature when applying the CFE II factors to determine whether there is a violation in the first instance.
On that basis, the Court of Appeals remanding the case to the trial court and was clear that the plaintiffs had already presented extensive evidence on the relevant factual issues to be addressed. Thus, the task is merely for the trial court to apply the law. The Court of Appeals closed with a final directive:
For any district where the court finds that inputs were insufficient, it must determine—on a district-by-district basis—whether plaintiffs have established causation by showing that increased funding can provide inputs that yield better student performance.
Monday, October 30, 2017
This is the subject of my forthcoming paper in Cornell Law Review. In Preferencing Educational Choice: The Constitutional Limits, I make two primary arguments. The first that some states' statutory programs preference choice in relation to public education and that doing so in logically inconsistent with their constitutional duties. The second argument is that the proper frame of analysis for examining the effects of charters and vouchers is at the district level, not the state level. At the district level, advocates can identify effects that likely do amount to violations of state's duty to deliver adequate or equal educational opportunities. The abstract offers this summary:
Rapidly expanding charter and voucher programs are establishing a new education paradigm in which access to traditional public schools is no longer guaranteed. In some areas, charter and voucher programs are on a trajectory to phase out traditional public schools altogether. This Article argues that this trend and its effects violate the constitutional right to public education embedded in all fifty state constitutions.
Importantly, this Article departs from past constitutional arguments against charter and voucher programs. Past arguments have attempted to prohibit such programs entirely and have assumed, with little evidentiary support, that they endanger statewide education systems. Unsurprisingly, litigation and scholarship based on a flawed premise have thus far failed to slow the growth of charter and voucher programs. Without a reframed theory, several recently filed lawsuits are likely to suffer the same fate.
This Article does not challenge the general constitutionality of choice programs. Instead, the Article identifies two limitations that state constitutional rights to education place on choice policy. The first limitation is that states cannot preference private choice programs over public education. This conclusion flows from the fact that most state constitutions mandate public education as a first-order right for their citizens. Thus, while states may establish choice programs, they cannot systematically advantage choice programs over public education. This Article demonstrates that some states have crossed this line.
The second limitation that state constitutions place on choice programs is that their practical effect cannot impede educational opportunities in public schools. Education clauses in state constitutions obligate the state to provide adequate and equitable public schools. Any state policy that deprives students of access to those opportunities is therefore unconstitutional. Often-overlooked district level data reveals that choice programs are reducing public education funding, stratifying opportunity, and intensifying segregation in large urban centers. Each of these effects represents a distinct constitutional violation.
Download the full article here.
Thursday, October 19, 2017
New Federal Court Decision Should Be a Warning to Schools and Police Departments That Arrest Students
Last week, in S.R., v. Kenton County Sheriff's Office, 2017 WL 4545231 (E.D. Ky. Oct. 11, 2017), a U.S. District Court in Kentucky issued a decision that should drastically change schools' and resource officers' thinking in regard to handcuffing students. Students often lose these types of cases and when they win, the facts are so unique or egregious that other schools and officers might distinguish them or write them off. This is not to suggest that the harms the students suffered in Kenton County were minimal. They were handcuffed in painful ways. The kids also represent sympathetic plaintiffs because they were particularly small.
But in other respects, the cases were more run of the mill and suggest a court drawing a line in favor of many students. These were not entirely "innocent" students. The students had engaged in protracted violent behavior--albeit not all that dangerous. And the school officials did not jump straight to handcuffing the kids. They, as well as the officers, had attempted several deescalation techniques and even let some behavior go, so to speak. And the cases did not involve pepper spray, head locks, brute force, or other forms of generally outrageous conduct by officers. In short, they involved handcuffing students whom the school and officers had not found any clear way of calming.
The fact that the court was willing to intervene here, thus, suggests the general problem with handcuffing kids, particularly small ones. The court emphasized that officers simply are not trained to engage in this type of behavior with young children and no one recommends it. Kentucky itself recognizes as much.
Kentucky Board of Education regulations provide that "school personnel may not use physical restraints as 'punishment or discipline,' to 'force compliance or to retaliate,' as 'a routine school safety measure,' or as 'convenience for staff.'” 704 KAR 7:160 § 3(1). The regulation also prohibits school personnel from using "'mechanical restraints' on students at any time." The preamble to the regulation, however, states that the regulation "does not prohibit the lawful exercise of law enforcement duties by sworn law enforcement officers.”
Yet, the details in these sorts of cases will always matter.
The case involves a few different incidents. The first involved an eight-year old boy who was approximately 4 feet tall and weighed 54 pounds. He "had been diagnosed with attention deficit hyperactivity disorder (ADHD) and post-traumatic stress disorder (PTSD)," but he "attended regular classes and, at the time of the incidents in question, had not been identified to school administrators as having any disability." He had engaged in some hitting and kicking incidents toward his teachers. The school's deescalation efforts included holding him in a cradle restraint and locking him in an office. When that did not work, they called the Sheriff's office. By the time Officer Sumner arrived, the student was on the phone talking to his mother. When the officer engaged him, however, things escalated and the student took an elbow swing at the officer.
Sumner said “you're not allowed to swing at me like that.” Sumner handcuffed S.R. behind his back, placing the cuffs on S.R.'s biceps above the elbows. The video shows that S.R.'s arms are pulled tightly behind his back with what appears to be only approximately three or four inches between his elbows. Sumner testified that he checked the handcuffs for tightness and that, since the chain connecting the handcuffs was nearly as long as the width of S.R.'s body, he had no reason to believe it would cause him pain. The video clearly demonstrates, however, that the chain is not nearly as wide as S.R.'s body, and that his arms are extremely taut.
Sumner can be heard stating, “You can do what we've asked you to or you can suffer the consequences.” (Doc. 156 - video). S.R. can be heard saying, “Oh, God. Ow, that hurts.” (Meyer Depo. 136-37). Sumner tells S.R. that: if he wants the handcuffs off, he has to behave and “ask nicely”; “if you want them off, all you have to do is stop kicking”; and “it's up to you if you want them off or not.”
S.R. remained handcuffed for approximately fifteen minutes, crying and squirming, after which Sumner removed the cuffs.
The second student, L.G, was a nine-year old girl who weighed about 56 pounds. "L.G. had been diagnosed with ADHD and she had a 504 plan, but she attended regular classes. The plan did not address any behavioral issues or problems." She also engaging in some hitting and kicking toward adults, as well as blowing snot and attempting to bit. The school attempted deescalation techniques with her as well, including placing her in a calm room. On one occasion when Officer Sumner arrived, he
decided to place her in handcuffs. Despite the handcuffs, L.G. did not calm down and Sumner called for an ambulance because he was concerned for her medical condition.
Paramedic Jerry Mills arrived at the school and went to the calm room. Mills began talking to L.G., and he told Sumner to remove the handcuffs. Mills put his arm around L.G.'s shoulders to comfort her while Sumner removed the handcuffs. Mills hugged L.G. and she hugged him back. Mills sat and talked with L.G. in the ambulance on the way to Children's Hospital. Collins and Sumner followed the ambulance since no parent was available, and Collins waited for about an hour until L.G.'s mother arrived. L.G. was discharged later that morning without any physical injury.
On another occasion, L.G. would not go to her assigned location in the school and ran away from a school employee.
Sumner saw L.G. coming towards him as he stood with his back to the stairway leading to the second floor, and Collins and Craig were telling L.G. to go to the cafeteria.
When L.G. reached Sumner, he told her to go to the cafeteria where she was supposed to be. L.G. tried to push past him, and she dropped to her hands and knees and tried to crawl through his knees. She then pulled up his pants leg and tried to scratch him. L.G began screaming, and Craig was able to move her into the “cub store,” a room where school supplies are sold.
Once inside the cub store, L.G. became physically aggressive, hitting, kicking, and scratching Craig. Sumner pulled L.G. off of Craig and tried to hold her physically for a few minutes, but she continued the same behavior. Sumner told L.G. that if she did not stop, he would handcuff her. L.G. continued to kick and hit, and Sumner placed her in handcuffs, above her elbows behind her back.
Assistant Superintendent Wilkerson contacted L.G.'s mother, who came to school to get her. Her mother testified that when she arrived, L.G. was on her knees and Sumner was holding her arms up behind her above her head. Sumner then removed the handcuffs.
Plaintiffs later filed suit against the Sheriff and Officer Sumner, alleging "(1) Unreasonable Seizure and Excessive Force in violation of the Fourth and Fourteenth Amendments (against all defendants), pursuant to 42 U.S.C. § 1983; (2) Disability Discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 (against Kenton County Sheriff's Office only); and (3) Failure to Accommodate under the ADA (against Kenton County Sheriff's Office only)."
The district court focused on the excessive force and found:
the severity of the “crime” committed by S.R. and L.G. – assault – weighs in their favor. While S.R. kicked a teacher and L.G. tried to and/or did hit a teacher, these are very young children, and their conduct does not call to mind the type of “assault” which would warrant criminal prosecution. Indeed, Sumner testified that “none of what they did was worthy of trying to file a criminal charge.”
The second factor, whether the children posed an immediate threat to themselves or others, weighs in S.R.'s favor. At the time he was handcuffed, S.R. had largely calmed down, Sumner had escorted him to the restroom without incident, and they had returned to the office. While Sumner testified that S.R. swung his elbow towards Sumner, such can hardly be considered a serious physical threat from an unarmed, 54-pound eight-year-old child.
This factor weighs less in favor of L.G., who was engaging in more physical abuse towards her teachers and Sumner.
Nonetheless, the age and stature of these children is highly relevant to this analysis.
Finally, the method of handcuffing that Sumner employed leads this Court to conclude that his actions were unreasonable and constituted excessive force as a matter of law. The video of S.R. shows that his arms were pulled tightly behind him, with only inches between his elbows. While Sumner testified that the chain between the cuffs was as wide as S.R.'s torso, the video belies that assertion. Where a witness's version of the facts “cannot be countenanced based upon what the video shows,” the Court must adopt the video as fact.
Upon being cuffed in this manner, S.R. cried out, “Ow, that hurts.” It was thus immediately apparent that this method – which, it is undisputed, was the same method by which L.G. was cuffed – was causing pain. S.R. was left in this position to cry and squirm for fifteen minutes.
Plaintiff's handcuffing expert, Robert Rail, testified that he does not know of any police instructor in the United States who would allow the elbow cuffing of children such as was used on S.R. and L.G., nor does he know of any program that teaches that method.
Even defendants' handcuffing expert, William A. Payne – who has been conducting handcuffing training for law enforcement for over 20 years –testified that he has never trained law enforcement to use handcuffs above the elbow. He further testified that he was not aware of any law enforcement agency that trains their officers to use such a technique.
. . .
Therefore, under the totality of the circumstances, the Court concludes as a matter of law that Sumner's manner of handcuffing S.R. and L.G. was an unconstitutional seizure and excessive force.
On the question of qualified immunity, however, the court was far more forgiving: "plaintiffs have not shown that it was “clearly established” in 2014 that Sumner's handcuffing of S.R. and L.G. was unconstitutional, and Sumner is thus entitled to qualified immunity." The court also granted the defendants' motion for summary judgment on the ADA claims.
Plaintiffs most significant victory was against the county. The court found that Sheriff "Korzenborn has not implemented any changes in the training of his SROs since these incidents. Given this undisputed testimony, Kenton County is liable as a matter of law for Sumner's unlawful handcuffing of S.R. and L.J."
Wednesday, October 18, 2017
Missouri Schools Suspend Black Students More Than Four Times As Often As Whites, While Disparities Curiously Drop with Other Forms of Punishment
The ACLU of Missouri has released a new report on school discipline and the school to prison pipeline there. The report finds:
The racial discrepancy in school discipline isn’t limited to teens. Our youngest and most vulnerable students in preschool and elementary grades are subject to excessive and harsh punishment. Nationwide, Black preschoolers are 3.6 times more likely to be suspended one or more times than White preschool students. Missouri has the eighth highest expulsion rate for preschoolers. From the very start of their education, the youngest students of color already face an uphill battle to stay in school.
The reality that specific students are punished more frequently and with greater severity is deeply troubling. A recent report from the U.S. Department of Education’s Office for Civil Rights found during the 2013-2014 school year, Black students across the nation are nearly four times as likely to be suspended than White students. During the same school year in Missouri, Black students were 4.5 times more likely to be suspended than White students. In Missouri, students with documented learning or behavioral disabilities under the federal Individuals with Disabilities Education Act (IDEA) were given out-of-school suspensions more than three times as often as non-IDEA students.
Despite making up only 14 percent of the student population in Missouri, Black, non-IDEA students represented about 17 percent of all referrals to law enforcement and 18 percent of all school-related arrests in the 2013-2014 school year.
In-school referrals to law enforcement are not trivial. A 2015 report from the Missouri Juvenile and Family Division found referrals from schools represent 21 percent of all law
referrals in Missouri for youth. Black children account for 26 percent of all referral types in the state. We also found an alarming increase of students in Missouri expelled from school. Between 2011 and 2014, the expulsion rate in Missouri doubled. This resulted in a greater number of expulsions for Black students, who faced expulsion at a higher rate than White students.
Another great concern is Missouri’s continued use of corporal punishment in school. Across the nation, few states continue to use corporal punishment, yet, in Missouri, Black students are almost twice as likely to be hit in school as their White peers.
This disparity between enrollment rates and discipline rates is not reflected among White students, a population in which discipline rates are consistently below enrollment rates.
Disproportionate discipline has both physical and mental consequences for young people. Beyond missed classroom time, when students, particularly younger students, are singled out for discipline, they are taught that they are “bad.” Their peers and educators internalize the same message. Studies show that by the time students move from pre-K to kindergarten, children can identify which of their peers exhibit “problem behaviors.” This perception is consistently shared between peers and teachers, creating a label for specific students that follows them throughout their academic careers.
What I found most interesting, however, may have been the report's data on in-school suspensions. This has traditionally been the most unreliably and difficult data to get. The report found that the in-school suspension rate for African American students received special education services was 26%. For other African Americans it was nearly 19%. Interestingly, however, the racial disparity between African Americans and whites was smaller in regard to in-school suspension and expulsions than it was in regard to suspensions. This raises a few interesting possibilities: 1) that schools are more likely to skip past in-school suspension for African Americans and just suspended them and 2) so as to avoid high expulsion rates, schools may be just handing out more suspensions. Both possibilities could be wrong, but something appears to be occurring with suspensions that is not occurring with other forms of discipline.
The disparity in regard to corporal punishment is also very low, but it is used so infrequently that conclusions may be less reliable there.
Tuesday, October 17, 2017
Michael Heise's forthcoming article in Columbia Law Review, From No Child Left Behind to Every Student Succeeds: Back to a Future for Education Federalism, is available on SSRN. He offers this abstract:
When passed in 2001, the No Child Left Behind Act represented the federal government’s most dramatic foray into the elementary and secondary public school policymaking terrain. While critics emphasized the Act’s overreliance on standardized testing and its reduced school-district and state autonomy, proponents lauded the Act’s goal to close the achievement gap between middle- and upper-middle-class students and students historically ill served by their schools. Whatever structural changes the No Child Left Behind Act achieved, however, were largely undone in 2015 by the Every Student Succeeds Act, which repositioned significant federal education policy control in state governments. From a federalism standpoint, the Every Student Succeeds Act may have reset education federalism boundaries to favor states, far exceeding their position prior to 2001.
While federal elementary and secondary education reform efforts since 2001 may intrigue legal scholars, a focus on educational federalism risks obscuring an even more fundamental development in educational policymaking power: its migration from governments to families, from regulation to markets. Amid a multidecade squabble between federal and state lawmakers over education policy authority, efforts to harness individual autonomy and market forces in the service of increasing children’s educational opportunity and equity have grown. Persistent demands for and increased availability of school voucher programs, charter schools, tax credits programs, and home schooling demonstrate families’ desire for greater agency over decisions about their children’s education. Parents’ calls for greater control over critical decisions concerning their children’s education and schooling options may eclipse state and federal lawmakers’ legislative squabbles over educational federalism.
Michael and I agree on a lot in this article. The title of my article, Abandoning the Federal Role in Education: The Every Student Succeeds Act, largely speaks for itself. That article traces the federal role in education from the 1960s until today, arguing that the Every Student Succeeds Act entirely reverses the expansion of the federal role in education, which had been building for decades.
Heise's article, however, goes beyond mine in certain respects, focusing on a factor absent from my analysis: the role of individual autonomy. In other words, from Heise's perspective, it is not just a fight between the feds and the states. It is a fight over family decisionmaking as well. Thus, the return of power to states is not just to serve the interests of state, but that of families.
Interestingly, more recent events add new wrinkles that may require updating of both Heise and my thoughts. Recent surveys and reports indicate that some family autonomy policies are unpopular, at least to the majority. The shift is abrupt in some instances. A new survey shows that charter support has plummeted by 12 percent in the last year. Other reports indicate strong opposition to the current administration's push for more vouchers and charters.
Disaggregating these shifts is difficult. It could be that the public dislikes the messenger but not necessarily the message. Or it may be that the public supports the expansion of choice, but not when it is perceived as being at the expense of traditional public education. The latter, however, presents an implementation challenge. To what extent can private choice expand without harming public education? Minimal to moderate expansions may pose little risk, but a tipping point likely exists, as I detail in a forthcoming article titled, Preferencing Private Choice.
Thursday, October 12, 2017
Zachary Liscow has posted an incredibly informative and complex analysis of the interplay between school finance litigation victories and legislative action. While analysis in this general area is not new, his approach is much deeper. Liscow attempts to measure not just whether school finance decisions affect per pupil expenditures, but how they affect tax policy, the differential burdens of that tax policy, and the redistribution of governmental resources. These inquiries are really aimed at identifying macro-level trends, whereby school finance litigation potentially produces a redistribution of resources or, more bluntly, an overall reduction in inequality. Do legislatures increases taxes on the wealthy while at the same time driving more state resources to the needy through schools?
In his abstract, he writes:
I find that the court orders’ distributional impacts do stick. The education spending is financed by tax increases that do not target the largest beneficiaries of the increased education spending, the poor and those with children. Thus, since the main beneficiaries of the school spending do not pay a disproportionate share of the costs, advocates for school finance reform are effective at transferring resources to poor families. The results suggest that welfare analysis of these legal rules should take into account not only efficiency but also distribution, in a departure from traditional economic analysis of legal rules.
In his more nuanced discussion later, he indicates that states do not typically redistribute existing resources in other areas toward education, they just raise taxes. Those tax increases are pretty evenly felt across all households. He conclude with the following:
This paper’s results are difficult to square with this underlying political economy assumption that that legislatures, even in the long-run, optimize the distribution of taxes and spending. This paper presents evidence of “zombie legislatures”: courts dramatically change the distribution of spending, and the legislature does nothing to offset those acts. Instead, the legislatures drift. Determining how much legislatures optimally should respond is beyond the scope of this paper, but the fact that there is no evidence of any offset at all suggests at least the possibility that a different background assumption about whether legislatures achieve the socially optimal distribution of taxes and spending may be appropriate. Of course, the paper says little about whether taxes and spending redistribute too much or too little and thus little about what that appropriate assumption should be. An important subject of future work is determining the impact of legislative drift on deviations from the optimal distribution of taxes and spending. And, more generally, the implications for policy design without a background assumption of an optimal distribution of taxes and spending are an important subject for future work.
Get the full paper here.
Monday, October 9, 2017
A new investigative report by Heather Vogell suggests that alternative charter schools are enrolling as many students as possible, collecting checks for students who may not even be there, and providing less in return than other public schools. By alternative charter school, she refers to charter schools that enroll students who are at risk of dropping out of school. Vogell focuses most heavily on those alternative schools run by for-profit management companies.
Vogell's findings are troubling any way you cut them. In isolation, the results in these alternative charter schools are so objectively low that they look wrong on their face. In comparison to other public schools serving students at risk of dropping out, the charter school results still look problematic, lagging well behind traditional public schools.
The first problem appears to be inflated enrollment numbers. Speaking of an alternative charter high school in Ohio, Vogell writes:
Only three of the more than 170 students on Capital’s rolls attended class the required five hours that day, records obtained by ProPublica show. Almost two-thirds of the school’s students never showed up; others left early. Nearly a third of the roster failed to attend class all week. . . [But] the no-shows didn’t hurt the school’s revenue stream. Capital billed and received payment from the state for teaching the equivalent of 171 students full time in May.
If these charters have the corner on any market, it is enrolling no-shows. They are dominating in Ohio. "After pulling in students long enough to tap public money, many of the schools fail to keep them in class. In Ohio in 2016, for-profit companies ran nearly one-third of the state’s 94 charter schools for dropouts — but three-fourths of the 20 with the highest absenteeism rates."
Both the inputs and outputs are lower in these schools. On the inputs, they provide substantially less access to counselors--potentially the most important resource for students struggling with issues both in and outside of school. Only 58% of the alternative school students attend a school with a counselor. Class size are larger and their rate of inexperienced teachers is also more than twice the rate of other schools.
With poor attendance rates and lower inputs, achievement in these schools is predictably low. "About 40 percent of the schools failed to meet state standards in 2015-2016. While Capital High passed overall, meeting state testing and other goals, its students didn’t make satisfactory academic progress. At 92 percent of Ohio’s dropout recovery schools in 2015, the graduation rate was below 50 percent. Capital’s was 23 percent. In 18 schools, including Capital, students skipped at least once every two days."
Two plausible explanations come to me. First, states have essentially given up on these students and would rather enroll them in a charter than a traditional public school because the costs are lower. While I don't doubt some have given up on these kids, I am not sure the cost-saving theory fits with these particular charter schools. The state could just let them drop out of traditional public school and not be tasked with paying anyone for them. The second explanation is that with some legislators favorable toward privatizing education in general and another group of legislators asleep at the wheel, no one is really noticing. I am sure I am overlooking other explanations, but I find it had to believe that this is what states are paying these schools for.
For those looking for more detailed data on particular alternative charter schools, the story includes a comprehensive list and info-graphic here.
Monday, October 2, 2017
Last year, the Education Law Center and the ACLU of Michigan filed an important special education case on behalf of 30,000 students against the Flint School System and the Michigan Department of Education. They alleged that the defendants had placed students at risk of developing disabilities by exposing them to elevated levels of lead in the water. Rather than wait years for the problems to manifest themselves or ignore those that already have, plaintiffs argued that the school system should be identifying affected students and providing services. They argue the failure to do so violates the IDEA and other disability laws.
The defendants moved to dismiss the complaint under the standard defense in special education class actions: the students did not exhaust their administrative remedies. Plaintiffs concede they did not exhaust remedies, but argued the rule did not apply in this case. They just won on that point.
Last week, the district court wrote:
The two principle exceptions to this requirement of exhaustion of administrative remedies are where the administrative procedures “would be futile or inadequate to protect the plaintiff’s rights,” or where “plaintiffs were not given full notice of their procedural rights under the IDEA.” Id. at 917. Courts have applied the futile or inadequate exceptions to exhaustion when plaintiffs seek relief that is not otherwise available through the administrative process, i.e. allegations of “structural or systemic failure.” Jackie S. v. Connelly, 442 F. Supp. 2d 503, 518 (S.D. Ohio 2006) (citations omitted).
Speaking of the Flint students, the court wrote:
Plaintiffs are seeking systemic relief in the form of injunctive relief on behalf of a large class. The challenge is to the very framework and processes that the school district undertakes for every child, rather than individuals contesting their IEPs. The Court agrees with the logic in J.S. that challenges such as these are incapable of correction in the individual administrative exhaustion procedure, and instead, are of a systemic nature that is properly addressed by the Court.
. . . .
The complaint alleges four systemic violations: failure to develop and implement child find procedures; failure to provide a free appropriate public education that confers a meaningful educational benefit in the least restrictive environment; failure to protect students’ procedural due process protections in the disciplinary process; and discrimination on the basis of disability with accompanying denial of access to educational services.
. . . .
It is clear from Plaintiffs’ complaint that the remedy they are seeking is a systemic change in the very way that Defendants identify, place, and educate all children in the Flint School District. The relief they are seeking is plainly not individual and could not be remedied by individual exhaustion since Plaintiffs are challenging the very efficacy of the system employed within the Flint District. Further, the representative Plaintiffs have emphatically illustrated that the alleged violations are widespread across the Flint schools and repetitive in nature. Thus, these systemic violations cannot be adequately exhausted through the administrative procedure and the systemic violation exception applies.
The case marks a major victory for students in Flint, as exhaustion defenses often derail special education claims, but it also marks another important precedent for allowing these types of cases to proceed.