Wednesday, January 31, 2018
Social science has long demonstrated the various harms that students suffer as a result of attending high poverty schools. Some of those are obvious ones regarding access to resources like teachers, but also include peer-to-peer effects. Students learn a tremendous amount from one another, and students in low-income schools tend to be deprived of important peer-to-peer influences. These resources and influences are so central to an adequate education that I have argued that denying students equal access to middle-income environments violates their constitutional right to education under state law.
At the same time, all students, regardless of wealth, benefit academically and socially from exposure to diversity. In other words, middle-income white students have a lot to learn from low-income minorities as well. Thus, Rob Garda argues white parents must recognize and pursue these benefits. Otherwise, they are disadvantaging their children as well. He aptly points out that the way to ensure integration is to focus on the interest convergence between these communities.
[He] describ[es] the interest-convergence theory and how white interests explain the course and content of the Supreme Court’s desegregation and affirmative action jurisprudence. Multiracial schools will not be created or endure unless white parents believe it to be in their children’s best interests. [He] next describes the extreme racial segregation in schools today and how white children are the most racially isolated students. This isolation contributes to the unconscious and automatic racial bias that infects everyone and will impair white children’s ability to successfully navigate the multicultural marketplace. Integrated schools, however, can de-bias white children and teach them cross-cultural competence, a skill they will need to effectively participate in a market with increasingly multicultural customers, co-workers and global business partners.
These benefits are so compelling that a group of the nation's leading education scholars recently filed an amicus brief before the Minnesota Supreme Court arguing that a diverse educational environment falls within the meaning of an adequate education.
Denver just announced a new school assignment policy that, on its face, seems to find the interest convergence Garda references. Denver is responding to the calls of parents at high-performing schools for more diverse learning environments. It seeks to achieve this goal by make socio-economic status an explicit priority in admission to these schools. The devil is, of course, in the detail and it matters tremendously how many seats in these high performing schools Denver will open, but this is a crucially important step regardless. The press release offers this explanation:
Denver Public Schools (DPS) Superintendent Tom Boasberg shared how the school district will help schools continue to increase diversity while still meeting the needs of their communities. DPS is now giving priority seating at select high-performing schools to students who qualify for free- and reduced-price lunch (FRL) during the district’s SchoolChoice process.
“Research shows that at whatever income level, all students benefit from being in diverse schools – that is true both academically and socially,” said Superintendent Tom Boasberg. “We hear from students and families about how much they value being members of a diverse community. They want to make sure their classrooms and their learning experiences are ones that they’re sharing and learning from students all across Denver who represent the racial, ethnic and economic diversity that is a strength of our city.”
In 2016, with the goal of providing more integrated schools, DPS began a pilot program at some high-performing, low-poverty schools to prioritize enrollment for students eligible for FRL, an indicator of poverty. In these schools, students living within the boundary still have priority; outside the boundary, the priority goes to low-income students. After receiving positive feedback from the community through DPS’ Strengthening Neighborhoods Initiative, more schools have expressed interest in participating in this pilot program.
“This is our first year as a school community, and we welcome the chance to offer seats in our school to students who need it the most,” said Inspire Elementary Principal Marisol Enriquez. “We have a commitment to equity and we believe it’s important for our students to grow surrounded by diversity.”
As the city continues to grow and housing prices increase, many parts of Denver are undergoing major shifts in demographics. This is resulting in significant changes in housing patterns and a major reduction in many neighborhoods of school-aged children. Diverse neighborhoods are struggling to balance the challenges of gentrification with the rich cultural histories of these communities. DPS’ priority seating effort maintains the school district’s enrollment priorities and promotes vibrant neighborhoods.
A bill is moving through the South Carolina legislature that would mandate the display of "In God We Trust" alongside the state motto--"While I breathe, I hope"--in every public school classroom in the state. The bill directs the State Board of Education to develop a poster with these mottos that all schools would use. In a bit of irony, this is one those unique aspects of the education code that would also apply to every charter school in the state. Apparently, other states, like Georgia, Florida, and Arkansas, are contemplating similar bills.
According to local news reporting, Rep. Mike Burns, the bill's sponsor, says
it’s time to bring the word “God” back in the school system. . . . [But] Rep. Burns says his goal isn’t to push the agenda of a certain religion. “Just because somebody references the name God doesn't mean that you’re pouring religion over their head.”
My reading of the cases suggests this bill raises serious constitutional problems. Courts typically look at three major issues in these types of cases: purpose, effect, and coercion. A religious purpose alone makes this type of legislation unconstitutional. If the goal is to put God back in schools, disclaimers to the contrary will not save the legislation.
The effect of the poster is, likewise, problematic regardless of the intent. The average person who sees a new poster in school that proclaims "In God We Trust" would almost certainly see it as an endorsement of religion. Seeing that motto in every classroom in the school would send an even clearer message. No other phrase or motto comes closes to holding that status. Nor to my knowledge has anything ever held that status. The only thing that comes close is the American flag, but of course, the flag is not a religious symbol. Yet, even with it, the Court has held, on other grounds, that schools cannot force students to participate in the pledge, with the idea being that it is beyond the power of schools to force students to accept or submit to idea. This applies to political as well as religious ideas.
Even more specific precedent bears on these posters. The Supreme Court and lower courts have struck down the moment of silence in schools (because the stated purpose in the state was to encourage prayer), and the display of the Ten Commandments in school because of the message it sends. The "In God We Trust" bill includes both problems--a religious purpose and a religious effect.
Although not directly on point, the Ninth Circuit also decided a case involving a teacher who had put up two large banners in his classroom that read "In God We Trust," "One Nation Under God," and "God Bless America." The school ordered him to take them down and he claimed it violated his First Amendment rights. The Ninth Circuit held that the school could order him to take them down without violating his rights. It did not answer the question of whether the school could allow these banners if it wanted. But it stands to reason that the school correctly perceived the banners to be violations of the establishment clause, which is why it could order them taken down.
To be clear, there is an important exception to the foregoing rules. The state can display religious texts when there is a secular purpose and effect. This means that, as part of teaching history or legal lessons, schools can potentially display the Ten Commandments, but only if the Commandments are surrounded other secular materials that make it clear that the overall purpose is secular not religious. Placing the Ten Commandments aside just one other document is not enough to lead to this conclusion. Thus, the South Carolina motto is unlikely to be enough by itself to make the overall display secular. To the contrary, placing those two mottos together sends an arguably even strong message that the South Carolina trusts in God--a message stricty prohibited if it means that. Neither the state nor its designee can endorse religion in any respect.
My suspicion is that lawmakers think there is a loophole because "In God We Trust" has been treated as what courts call a "ceremonial deism" in the context of U.S. currency and architectural fixtures. This area of the law is extremely difficult to reconcile with the generally applicable First Amendment standards. The simplest explanation is that the Court has said that the monetary and architectural references are not really religious statements. They are just utterances and mottos with no real meaning, but which we have stuck with through history for tradition sake, not to make a religious statement. Thus, they don't violate the First Amendment.
New uses of those mottos would appear different, particular when used for the purpose of making a religious statement. Using the motto as a backdoor way to try to make a new statement is unlikely to fit the narrow "ceremonial deism" exception. Schools simply have not always had these posters in the past, which would indicate an effort to make a new affirmative statement.
About a decade ago, the former Attorney General of Georgia disagreed with the foregoing analysis. He pointed out that the motto has been sanctioned in other contexts, so there is no reason to suspect it would be different in school. He, however, does not take up all the factors and cases that make the classroom far different than the dollar bill and buildings that are a century old. He did acknowledge that he could be wrong--as do I.
Tuesday, January 30, 2018
A decade ago, James Ryan, argued that state constitutional rights to education should include access to preschool. Given what we know about brain development, access to high quality education opportunities at an early age is crucial. He explained “Advances in neuroscience have made it clear that the first few years of life are crucial for cognitive development and that early experiences can influence the emerging architecture of the brain” and “[s]ocial science evidence, in turn, suggests that preschool produces definite and substantial gains in learning and development, at least over the short-run.” While there are admittedly gaps in the research, “most of the evidence about preschool points in one direction and is not contradictory or intensely contested.” It is so powerful that researchers began doing cost-benefit analyses of preschool, “concluding that in most cases preschool will more than pay for itself” due to the savings it will produce in other educational, social service, and juvenile justice programs.
Ryan called on school funding litigators to include preschool claims in their cases and many have. And many states have responded. A recent New York Times Magazine article, however, suggests that states are not nearly as serious about preschool as they should be. The title says it all-- Why Are Our Most Important Teachers Paid the Least?
The article reports that:
Even as investment in early-childhood education soars, teachers like Kelly continue to earn as little as $28,500 a year on average, a valuation that puts them on par with file clerks and switchboard operators, but well below K-12 teachers, who, according to the most recent national survey, earn roughly $53,100 a year. According to a recent briefing from the Economic Policy Institute, a majority of preschool teachers are low-income women of color with no more than a high-school diploma. Only 15 percent of them receive employer-sponsored health insurance, and depending on which state they are in, nearly half belong to families that rely on public assistance. “Teaching preschoolers is every bit as complicated and important as teaching any of the K-12 grades, if not more so,” says Marcy Whitebook, a director of the Center for the Study of Child Care Employment at the University of California, Berkeley. “But we still treat preschool teachers like babysitters. We want them to ameliorate poverty even as they live in it themselves.”
The article also includes good updates on the social science research since Ryan first wrote his article.
School funding litigation in Connecticut caught the nation's attention in late 2016 when a trial judge there issued and lengthy and scathing appraisal of the state's school funding practices. The court found that many of the state's education policies were simply irrational. For instance, the court wrote: "the state spends billions of dollars on schools without any binding principle guaranteeing that education aid goes where it's needed. During the recent budget crisis, this left rich schools robbing millions of dollars from poor schools. ... Instead of the state honoring its promise of adequate schools, [it] has left rich school districts to flourish and poor school districts to flounder ... [and] the system cannot work unless the state sticks to an honest formula that delivers funding according to local need." The judge gave the state 180 days to come up with a remedy.
Interestingly, however, the trial court applied a relatively low threshold of educational adequacy. The case has now made it to the state supreme court, which affirmed that aspect of the case. In short, plaintiffs won on certain counts, but the courts, in applying a low adequacy standard, have ignored other crucial educational failures. Wendy Lecker, Education Law Center, offered this critique of the recent decision in the Stamford Advocate.
Heartless is the best way to describe the Connecticut Supreme Court’s 4-3 decision in the state’s long-running school funding case, CCJEF v. Rell.
The court’s majority acknowledged that at the 2016 trial, the plaintiffs proved that Connecticut’s poorest districts suffered severe deprivations in educational resources, especially those resources designed to help our neediest children. The court conceded that these districts lack reading interventionists, bilingual services, guidance counselors, social workers, psychologists, preschool and more.
Our Supreme Court admitted that these four resources are inadequate to enable many of Connecticut’s children, our neediest, to access educational opportunities. Thus, in deciding that only these meager resources need be provided, the court essentially ruled that the state bears no constitutional responsibility to these children — only to those who do not need such support.
This decision represents a monumental step backward. Courts across the United States routinely recognize that since out-of-school factors can hinder some children’s ability to access educational opportunities, it is the state’s responsibility to provide support that mitigates those factors to guarantee the same educational opportunities to these children that others enjoy.
Social workers, guidance counselors, psychologists, tutoring, bilingual education, special education programs and other supports have long been common features of every school system. To pretend that these supports are not essential components of education is to deny reality.
The court’s decision was not unanimous. Justice Richard Palmer wrote a strongly worded dissent, which is notable not only for its content. It is also striking because it was Justice Palmer’s opinion in CCJEF the last time it was before the Supreme Court, in 2010, that established the standard for determining what kind of education Connecticut owes its children.
In issuing its decision last week, the majority claimed it was merely applying Justice Palmer’s 2010 standard. However, Justice Palmer pointedly disagreed.
“Residents of our poorest communities, even those hungry to learn, may have to overcome a host of obstacles before they are able to attend to fractions and Fitzgerald,” Justice Palmer wrote. He concluded that the state cannot shirk its responsibility to attend to those obstacles.
Justice Palmer maintained that his 2010 decision mandated that the state not only provide teachers, facilities, curricula and instrumentalities, but that it also take into consideration the particular needs of a local school district, including the needs of children living in poverty, children learning English and children with disabilities.
Justice Palmer noted that the majority acknowledged that had the state provided only college level textbooks to elementary school students — well above a level they could comprehend — that would have been a violation of these children’s constitutional rights. He queried why the constitution is “not also offended if, for example, a school fails to provide instruction or instructional materials that are comprehensible to a substantial subpopulation of students whose primary language is not English?”
Connecticut has almost 200,000 students who are economically disadvantaged, more than 36,000 English Language Learners and over 77,000 students with disabilities. Many need additional support to access their opportunity to an education.
As Justice Palmer declared that “(i)t is not enough to seek success in some places, for some children ... the educational system must be reasonably designed to achieve results in every district and neighborhood. Our state constitution simply will not allow us to leave our neediest children behind.”
The court’s majority was willing to leave hundreds of thousands of Connecticut’s children behind. Will we allow Connecticut’s political leaders to do the same?