Wednesday, March 28, 2018

School Funding Litigation From Coast to Coast By Molly Hunter

As of March 2018, school funding lawsuits challenging inadequate education resources, outcomes and opportunities, especially for at-risk students, continue in state trial, appellate and supreme courts across the country. States with active litigation or outstanding court orders include Arizona, Delaware, Florida, Kansas, Maryland, New Jersey, New Mexico, New York, Pennsylvania, North Carolina, Tennessee, and Washington.

As the nation's legal defense fund for public education rights, Education Law Center monitors, supports and, in some states, participates as counsel or as amicus curiae (friend of the court) in these lawsuits.

Below is a brief summary of cases in the states:

  • Washington: In McCleary v. State (2012 and 2017), the Supreme Court has retained jurisdiction. After earlier decisions in this case, the legislature enacted funding reforms, which the court found insufficient to remedy the constitutional violations. On March 8, 2018, the legislature passed a supplementary budget that raises school funding significantly, believing that this change will satisfy the constitution's requirements.
  • Kansas: As in Washington, the Kansas Supreme Court has retained jurisdiction in Gannon v. State (2014 and 2017). Also in March, the Kansas Legislature received an education cost study estimating the need for a $2 billion increase in school funding to meet student performance targets. The legislature faces an April deadline set by the Kansas Supreme Court to adopt measures to adequately fund K-12 education.

Both the Washington and Kansas supreme courts will review the legislative response for compliance with their respective constitutions and court decrees.

  • Delaware: In January 2018, parents and other Delaware citizens filed the state's first constitutional challenge to inadequate school funding in Delawareans for Educational Opportunity (DEO) and NAACP Delaware v. Carney. The Delaware constitution requires the state to provide a "general and efficient system of free public schools." Plaintiffs are asking the court to declare education a fundamental right and that the current state financing laws violate students' right to the opportunity for an adequate education. The State's response to the complaint is expected in April.
  • New York: In late 2017, ELC joined the legal team in NYSER v. State of New York, a pending case in which the parent plaintiffs allege that the State's chronic underfunding of their schools has deprived their children of essential education resources, including teachers, reasonable class sizes, social workers and interventions for at-risk students. The parents contend that the lack of essential resources and poor outcomes for students are the result of the State's funding failures. In June 2017, the Court of Appeals, the State's highest court, denied the State's motion to dismiss and remanded the case for trial. The NYSER parent plaintiffs are from the New York City, Syracuse, Schenectady, Central Islip and Gouverneur school districts.

In October 2017, in Maisto v. State of New York, the Appellate Division reversed the lower court's dismissal, after trial, of the parents' claims that their eight"Small City" school districts were unconstitutionally underfunded by the state. The Court reaffirmed the framework established in the Campaign for Fiscal Equity (CFE) rulings for analyzing claims of violations of the New York Constitution's Education Article. The Appellate Division remanded the case to the trial court for specific findings on inputs and causation.

  • Pennsylvania: In September 2017, the Pennsylvania Supreme Court refused to follow prior court precedent and denied the State's motion to dismiss, in William Penn Sch. Dist. v. Pennsylvania Dep't of Education. The case is a challenge to inadequate resources, outcomes and funding in the state's higher poverty districts. The Supreme Court remanded the case for a trial on the merits. Legislative leaders opposed to the lawsuit have filed another round of motions to dismiss and block a trial on the merits. The motions were recently argued in the trial court, with a decision expected shortly.
  • New Mexico: The trial in the consolidated cases Martinez v. State of New Mexico and Yazzie v. State concluded recently, and the parties await the trial court's ruling. The plaintiffs claim the State denies children's constitutional right to access equal educational opportunities resulting from a severe lack of quality teachers and leaders in schools disproportionately serving English Learner (EL) and low-income students. Plaintiffs also presented evidence that the State's failure to support and implement its own unique laws - the Indian Education Act, the Hispanic Education Act, and the Bilingual Multicultural Education Act - deprives students of the cultural programs that are essential to a sufficient education, as required under the New Mexico Constitution.
  • Arizona: In May 2017, Arizona plaintiffs filed Glendale Elementary Sch. Dist. v. State, alleging the State's system for funding school facilities is unconstitutional. Plaintiffs won a similar case in Hull v. Albrecht (AZ 1998), resulting in the State establishing standards for school facilities and allocating funds to bring school buildings up to those standards. After tax cuts over the last ten years, plaintiffs claim that State funding is now far from sufficient, and many buildings have fallen below the standards.
  • Florida: The plaintiffs in Citizens for Strong Schools (CSS) v. State of Florida have filed a petition in the Florida Supreme Court requesting review of a 2017 intermediate appellate court ruling. The appellate court affirmed a trial court ruling that claims under the detailed education article in the Florida constitution raise purely political questions left to the elected branches of the state government and, therefore, not appropriate for court adjudication.
  • Tennessee: In 2015 and 2016, several Tennessee school districts filed lawsuits against the State, beginning with Hamilton County Bd. of Education v. Haslam and Shelby County Bd. of Educ. v. Haslam. The districts maintain that the State school funding system is inadequate and violates the Tennessee constitution. Motions to dismiss the complaints are pending.
  • North Carolina: In 2017, the parties in the long-running school funding case, Leandro v. State of North Carolina (also known as Hoke County v. State), agreed to the appointment of an independent educational expert to devise remedies for the State's violation of its constitution by identifying additional steps the state should take to ensure qualified teachers, school leaders and resources to provide all North Carolina children a constitutional "sound basic education." The expert's report is due by the end of 2018.
  • Maryland: In the 1990s in Maryland, parents and students in the Baltimore City school district filed Bradford v. Maryland State Board of Educ., alleging that the State failed to provide resources for students to meet contemporary education standards. Before trial, the parties settled and entered into a consent decree. That decree is still in force, and the plaintiffs are awaiting the results from a new commission, called the Kirwin Commission, to determine whether the state will address the chronic underfunding of the state's funding formula. Absent such progress, plaintiffs may move to reopen the Bradford case.
  • New Jersey: Finally, in New Jersey, several key orders by the Supreme Court in the Abbott v. Burke lawsuit remain under implementation by the state. These include the court's 2008 ruling (Abbott XX) directing state implementation of a weighted student funding formula; the rulings in 2000 (Abbott VI) and 2002 (Abbott VIII) directing implementation of high quality preschool; and the rulings in 1998 (Abbott V) and 2000 (Abbott VII) requiring state financing of school building improvements. In the event of state non-compliance, these orders remain enforceable by the court on application by plaintiffs.

Molly Hunter, Esquire, is Of Counsel at Education Law Center


March 28, 2018 in School Funding | Permalink | Comments (1)

Tuesday, March 27, 2018

Student Protesters Are Teaching Us Something; Shame On Those Who Think They Are Too Smart to Listen

Shortly after the Parkland school shooting, Jonah Goldberg penned an essay whose title speaks for itself: "Parkland kids can protest, but they don't know what they are talking about."

A few days ago, Rick Sanotrum piled on, saying:

They took action to ask someone to pass a law. They didn't take action to say, "How do I, as an individual, deal with this problem? How am I going to do something about stopping bullying within my own community? What am I going to do to actually help respond to a shooter?"... Those are the kind of things where you can take it internally, and say, "Here's how I'm going to deal with this. Here's how I'm going to help the situation," instead of going and protesting and saying, "Oh, someone else needs to pass a law to protect me."

Both claim to take the mature high ground with brutal honesty.  Goldberg argues that kids lack the knowledge and wisdom for us to listen to them.  I think they could both go for a good dose of humility.  And I don't reserve that judgment for them alone.  I pointed it at myself recently and finally admitted that no matter how much wisdom I think I have to offer, real wisdom comes from acknowledging how much we have to learn from a fresh set of eyes--from young people.

Case in point.  When students first began protesting the fact that names like Woodrow Wilson appear on a building at Princeton and William Saunders on a building at UNC, I had my misgivings.  Yes, the students were correct about the history--these individuals have racist legacies--but the details of the buildings matter.  Was the name placed there to honor the racist legacy?  Was it put there because the family actually donated the money for the building?  Was it because of the alum's political fame?  Is there even a continuing message being sent if no one knows who the person is?

I thought the building names should not be conflated with confederate memorials, at least not on a wholesale level.  Confederate memorials tend to come with racist motivations and and continuing symbolism that is distinct from building names.  Notwithstanding the analysis I could offer on that point, I came to realize that I am probably too old to have an opinion on what young people do or do not protest about.  I will probably get it wrong.  It is the youth who push us to see the world anew--more clearly--not purported wise elders.  "Wise elders" should offer perspective, but forceful direction is probably more a hindrance than help. 

In retrospect, we can now see that those protesting students elevated a conversation that would have been missed without them.  They forced a reevaluation of numerous assumptions on main campus.  We owe them thanks.  And we probably owe them deference in the future.

While I agree with the students now protesting gun laws, that is not why I am listening to them.  And I am not encouraging them so as to forward my own agenda.  I tend to think they would demand a much strong set of gun restrictions than I myself would recommend.  I am listening because I have something to learn, not teach.

As I wrote two weeks ago, a student completely reframed the way I thought about these shootings with the simple statement: "We can’t be hunted.”  Were it not for her, I would still be thinking in terms of the normal platitudes.  Clearly, many others still are.

March 27, 2018 | Permalink | Comments (2)

Monday, March 26, 2018

Charter Schools: Expanding Opportunity or Reinforcing Divides?

On Thursday, the Harvard Graduate School of Education will host a debate on charter schools.  Participants include Eva Moskowitz (Founder and CEO of Success Academy Charter Schools), Gerard Robinson (Executive Director of Center for Advancing Opportunity), Cornell William Brooks (Former President and CEO of NAACP), and myself (professor and commentator).  Mary West (Associate Professor of Education at Harvard) will moderate.

The debate will focus on charters' effects on equity and segregation.

Harvard will be live streaming the forum at the top of the homepage on the day of the forum and at .  After the event, the video will be at:   The forum Facebook Event invitation is:



March 26, 2018 in Charters and Vouchers | Permalink | Comments (0)

Thursday, March 22, 2018

New Report Shows Just How Bad Segregation in New Jersey's Charters Is--And Charters Are Still Growing

Mark Weber and Julia Sass Rubin have released a new report on charter growth and segregation in New Jersey.  As to growth, they find:
•In the 2017-18 school year, enrollment in New Jersey’s traditional and renaissance charter schools surpassed 53,000 students, accounting for 3.6% of the state’s publicly funded student population.
•Charter enrollment has more than tripled over the last decade.
•Almost half of all New Jersey school districts send students and funding to charter schools. The number of such districts has increased from 198 in 2007-08 to 273 in 2017-18. 
•In the 2017-18 school year, traditional and renaissance charter schools will receive an anticipated $750 million in funding from New Jersey’s school districts, more than four and a half times the $164 million transferred to charter schools a decade ago.
Their segregation finds, however, are what really caught my eye.  A decade ago the growth was small enough and the disparities muddled enough that charter school supporters could challenge claims that charters were exacerbating segregation.  Helen Ladd's work in North Carolina shows a clear cut racial segregation trend in North Carolina.  Weber and Rubin have been doing the same in New Jersey.  In a 2014 study, they examined Newark's schools and found that segregation and inequality between Newark’s traditional public schools and charters occur on multiple levels. African Americans were increasingly leaving for charters, while Latinos remained. The Latino population in charters was less than half of that of public schools, while African American enrollment in charters was 60% higher than in public schools. Charters were also enrolling significantly lower percentages of higher cost students than public schools. Charters’ low-income, English language learner, special education, and low-income populations were substantially smaller. In short, the type of segregation that would be decried if it was occurring within public schools was occurring between the traditional and charter sectors.
Their, 2018 update looks statewide and finds the same type of problems.  This charter, for instance, shows the difference in special education enrollments between charters and the school districts in which they reside.  in 2016-2017, special education enrollments are 60% higher in the traditional public schools than in charters.

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March 22, 2018 in Charters and Vouchers, Racial Integration and Diversity | Permalink | Comments (0)

Wednesday, March 21, 2018

Before the Trump Administration Starts Undermining School Discipline Reform, It Might Just Read the Law

Last night, I was reading the actual text of the Every Student Succeeds Act to prepare for today's class.  While I was not immediately excited about the prospect, my mind began to light up as I remembered a few remarkable lines about school discipline that I had since paid relatively little attention.  When the law was written, the Administration was already making progress on school discipline and the lines could have been read as nothing more than a nod toward what had already been done.  Two and a half years later and in a different administration, the lines are powerful.

I won't try to summarize the entire 443 page bill here, but a little context is helpful for the non-policy wonks.  The most important and lengthy part of the bill is its requirement that states submit a plan for how they will achieve certain goals.  Once a state sets its goals and implementation strategy and the Secretary approves it, the state is locked into that program.  This is the basic standards, testing, and accountability framework of the law. While the Act is very deferential to states, it does require that states take certain steps and speak to particular issues like testing, English language proficiency and graduation rates. 

For what I believe was the first time in history, the federal government also took a global stance on school discipline.  Nestled into the final subsections of the details on state plans was the requirement that states explain how they "will support local educational agencies receiving assistance under this part to improve school conditions for student learning, including through reducing—(i) incidences of bullying and harassment; (ii) the overuse of discipline practices that remove students from the classroom; and (iii) the use of aversive behavioral interventions that compromise student health and safety."

And there it is ladies and gentleman, a federal law passed by both houses of Congress and signed by the President that says states should undertake the exact type of reforms that the Obama Administration had urged a few years earlier through policy guidance.  This section of the statute, however, is even stronger than the prior policy guidance.  The prior policy guidance only applied when districts' suspension and expulsion practices resulted in racial disparities.  The Every Student Succeeds Act takes the position that "aversive behavioral interventions"--otherwise know as punitive suspensions and expulsions--"compromise student health and safety" and requires that all states do something about it for all students. 

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March 21, 2018 in Discipline | Permalink | Comments (0)

New Jersey Celebrates 20th Anniversary of the Right to Preschool

This from the Education Law Center:

A conference hosted and sponsored by ETS on March 14 celebrated the success of New Jersey’s groundbreaking Abbott Preschool program 20 years after a ruling in the landmark Abbott v. Burke lawsuit ordered the Commissioner of Education to provide “well-planned, high quality” early education to all three- and four-year-olds residing in the state’s urban school districts.

Along with ETS, the conference was co-sponsored by Advocates for Children of New Jersey, the National Institute for Early Education and Education Law Center.

David Sciarra, ELC Executive Director and counsel to the plaintiff school children in Abbott v. Burke, delivered the following remarks to open the conference:

May 21, 1998. What happened on that date twenty years ago is why we are gathered here today.

On that day, the New Jersey Supreme Court issued its fifth ruling in the Abbott v. Burke school funding lawsuit.

A year earlier, in Abbott IV, the Court ordered the State to increase K-12 aid in the 31 urban or “Abbott” districts to the level spent in successful affluent districts, establishing “parity” in general education funding. 

The next year – 1998 -- in Abbott V, the Court, based on evidence developed in a special trial, directed the State to fund and implement a package of K-12 “supplemental” programs to address the impact of concentrated poverty in the Abbott districts. The Court also directed the State to fund repairs and replacement of dilapidated school buildings. 

These judicial orders standing alone were unprecedented. But the Court went even further. 

The road to today’s celebration of Abbott Preschool began with these words from the Justices:

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March 21, 2018 in Pre-K Education | Permalink | Comments (0)

Tuesday, March 20, 2018

Many Schools Funded Far Below What's Needed to Achieve Average Outcomes by Education Law Center

A new policy brief, authored by researchers at Rutgers University and released by Education Law Center, shows that most U.S. states fund their public schools at a level far below what is necessary for students in high-poverty districts to achieve at even average levels in English and math.

The full report, entitled "The Real Shame of the Nation: The Causes and Consequences of Interstate Inequity in Public School Investments," is the first of its kind to examine the relationship between school funding, student achievement, and poverty levels across all states and the District of Columbia in the United States. The report builds on the comparisons in state school funding systems in the "National Report Card, Is School Funding Fair?"

The report presents a new "National Education Cost Model" that uses a unique dataset of school spending, student achievement, student and family income levels, and other factors to construct estimates of how much states and school districts would need to spend for their students to reach the national average in English and math.

Among the key findings in the report:

  • In numerous states - including Arizona, Tennessee, Alabama, Michigan, and Georgia - only the lowest-poverty districts have sufficient funding to reach national average student achievement outcomes.
  • Mississippi, New Mexico, West Virginia, Nevada, and Louisiana spend so little that even their lowest-poverty districts can't reach national average student achievement outcomes.
  • Only a few states - including New Jersey and Massachusetts - have higher levels of funding across all districts and have near-average outcomes, even in the highest-poverty districts.
  • The cost of achieving national average outcomes in very high-poverty districts is three times higher - or $20,000 to $30,000 per pupil - than in low-poverty districts.

The report also debunks the common misconception of a nationwide "failure" in U.S. public education based on international outcome comparisons. When viewed from a state-by-state or district-by-district lens, there is wide variation in spending and student achievement outcomes, with strong performance in a few high-investment states and in low-poverty districts - even those in under-performing states - that rivals that of other high-performing nations.

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March 20, 2018 in School Funding | Permalink | Comments (0)

New Report Blisters North Carolina for Its School Segregation, Pointing to School Assignments and Charter School Growth As Problems

The North Carolina Justice Center has released a study of school segregation trends in the state over the last decade.  Its highest level findings include:

● The number of racially and economically isolated schools has increased
● Districts’ racial distribution is mixed, but economic segregation is on the rise
● Large school districts could be doing much more to integrate their schools
● School district boundaries are still used to maintain segregated school systems
● Charter schools tend to exacerbate segregation

The Center warns that things could get worse soon: "[I]n 2017, the General Assembly has created the Joint Legislative Study Committee on the Division of Local School Administrative Units, which many advocates fear is an attempt to begin the process of re-segregating urban school districts."

This chart shows the increase in the number and percentage of racially and socio-economically isolated schools in the state.  The increase in poverty concentration is the most staggering, nearly doubling.  While some of this increase is attributable to the fact that the percentage of poor students in the state increased by 23 percent, the increase in high poverty schools dwarfs that number.  In other words, school assignment and charter school policies are exacerbating the problem.


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March 20, 2018 in Charters and Vouchers, Racial Integration and Diversity | Permalink | Comments (0)

Monday, March 19, 2018

New Federal Tax Code Will Make It Harder to Fairly Fund Schools, As New York Is Figuring Out

Those who pushed the new federal tax law never stopped to seriously consider how it might affect key services at the state and local level.  The cap on deductions for state and local taxes was about far more than whether the deduction favors rich or poor states.  The intent of the cap may have been to fairly rebalance the interests of these states, but tax policy is never so simple.  A cap on state and local tax deductions may have unintended consequences across the nation.  One of the most significant loosers will be public education.

The largest chunk of state and local taxes go to support public schools.  That money matters.  Reviewing decades of data, a 2014 study found that a 20 percent increase in school funding, when maintained, results in low- income students completing nearly a year of additional education, wiping out roughly half of the graduation gap between low- and middle-income students.  As to student achievement, a Kansas study conclusively showed that “a 1 percent increase in student performance was associated with a .83 percent increase in spending.”  The debate over school funding is not whether money matters, but how to spend it on things that matter the most. 

When federal law caps the deduction for state and local taxes, what it is really doing is creating a disincentive to fully fund educational needs.  New Jersey, for instance, does not collect high tax revenues just so that it can buy newer and fancier police cars.  New Jersey collects more tax dollars because the cost of education is higher there than most anywhere else in the nation.   When people in New Jersey lose their federal deduction for state and local taxes, it will, as a practical matter, cost them more to fund education next year than it did last year.  It will cost more because they will pay federal taxes on their state taxes.

Average and poor states will similarly find it hard to meet the needs of their most disadvantaged students under the new tax bill.  Most people in these states won’t notice the cap on state and local deductions.  But an important chunk of people will and those people are crucial to those states’ ability to fairly fund education.  Because the cap on state and local deductions is a flat cap of $10,000 per taxpayer, it can hit high earners and land owners in any state.  And those are the exact people who make what we call progressive school funding possible.

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March 19, 2018 in School Funding | Permalink | Comments (0)

Zero Tolerance Discipline Policies Won't Fix School Shootings

File 20180314 113485 1hfgfn2.jpg?ixlib=rb 1.1
The Trump administration aims to revisit school discipline policies. Roman Bodnarchuk/Shutterstock

Derek W. Black, University of South Carolina

As outrage over the Parkland school shooting persists, lawmakers are looking for actual policy solutions. Unfortunately, they sometimes misunderstand or misuse the facts that should drive policy.

The Trump administration and its supporters are latching onto school discipline reform as the solution. But by reform, they do not mean improving school climate, ensuring fairness or getting students the mental and social services they need. They mean doing away with the school discipline reform the Obama administration helped spur. They mean doubling down on zero tolerance. Last week, Florida’s Republican Sen. Marco Rubio went so far as to write that “federal guidance may have contributed to systemic failures to report Nikolas Cruz’s dangerous behaviors to local law enforcement.” Cruz is accused of carrying out the Feb. 14 school shooting in Parkland, Florida.

Rubio is referencing a 2014 memo by the Department of Education and Department of Justice under President Barack Obama. The memo placed some limits on zero tolerance and encouraged school districts to adopt proactive research-based approaches to student misbehavior. It took over a decade, but social scientists and educators began convincing policymakers that the country had made a mistake with its zero tolerance discipline policies.

Trump officials and supporters think — or would have people believe — that the new push to improve school discipline had something to do with the Parkland shooting. It didn’t. And getting rid of research-based approaches to discipline is, in my opinion as a professor of law and education policy, an even worse idea than arming school teachers.

What really works and doesn’t

But powerful stories drive perception and policy. The stories that get told and retold eventually come to matter just as much as research. So here’s a story that runs counter to the Trump adminstration’s current narrative that stronger discipline is the answer. On Sept. 28, 2016, a 14-year-old boy in Ashland City, Tennessee, entered his school with a gun. His plan was to kill teachers and a police officer. But he stopped by his guidance counselor’s office first. After 45 minutes, the guidance counselor, Molly Hudgens, talked him into giving her the gun. She said her training in de-escalation allowed her to persuade him. The local sheriff said: “She did something even the most experienced law enforcement officer might not do. Had she not been there, it could have been very different.”

The aftermath of Columbine also offers its own lessons. In the panic that followed, the nation ratcheted up its school punishments. Not only would students be expelled for bringing guns and drugs to school, they would be expelled for things like “habitual disruption” and disrespect. Some schools went so far as to suspend students for chewing Pop-Tarts into the shape of guns and for playing games like cops and robbers when they include imaginary guns.

As I detail in my book, “Ending Zero Tolerance,” the results of harsh discipline policies have been disappointing to say the least. If zero tolerance was an effective deterrent, it would have eventually caused suspensions to decline, while safety and achievement increased. But suspension rates steadily increased across time. By 2011, schools were suspending and expelling 3.5 million students a year. For African-American students, the rate of suspension increased by 60 percent. Most of these suspensions and expulsions were for relatively minor misbehavior. For instance, fewer than 10 percent of those suspensions and expulsions involved guns or drugs. And the incidental effects were equally disturbing.

How suspensions impact schools

Research has shown that high suspension rates are related to lower academic achievement, including for the well-behaved students that suspensions purportedly protect. One of the reasons is that when schools regularly suspend students for minor misbehavior, they alter the overall student body’s perception of school. Students no longer see school officials making the learning environment safe or orderly. They see school officials acting punitively toward their friends, family and peers.

And when students see a school’s discipline approach as overly strict or harsh, they see school authority as arbitrary and unfair. When student bystanders see schools suspend friends who are struggling due to factors beyond their control – such as homelessness, poverty, abuse or a disability — students come to see suspension and expulsion as downright perverse. These perceptions produce more chaos, not less.

Parkland, to its credit, had been providing students with services and support, rather than jumping straight to suspensions and expulsions. It had recognized the shooter’s struggles well before the tragedy and attempted to connect him with social supports, before finally expelling him last year. Regardless, students from Parkland aren’t claiming that the school’s discipline philosophy was related to this tragedy. It is politicians, who do not know what they are talking about, who make this claim. These voices would have us repeat the zero tolerance craze that followed Columbine.

Progressive versus punitive

As I warned in my book, “No matter how much progress is made at the federal, state, and local levels in the coming years, harsh discipline and zero tolerance will almost certainly persist.” So discipline reformers should not assume they had secured victory simply because the Obama administration had adopted a progressive school discipline memo. Now the fight for sane discipline has returned to their doorsteps.

The ConversationTraining and supportive approaches to discipline cannot guarantee school shootings won’t happen, but research says the best chance of reducing violence, and also improving the overall academic achievement and environment of schools, rests in rejecting punitive school discipline and replacing it with supportive systems. If we abandon the progressive steps that schools are taking, we will consign students to a darker world, not a safer one.

Derek W. Black, Professor of Law, University of South Carolina

This article was originally published on The Conversation. Read the original article.

March 19, 2018 in Discipline | Permalink | Comments (0)

Thursday, March 15, 2018

Court Finds That Case Challenging South Carolina's Disturbing Schools Law Should Move Forward

A video of law enforcement officer  pulling a student out of her chair by the neck and dragging her across the floor when viral in October 2015.  It led to a lot of serious questions about the authority under which an officer could take such aggressive action against a student, particularly one just sitting in her seat.  The answer in South Carolina, where the incident took place, is the state's Disturbing Schools Law.  The law states that:

It shall be unlawful: (1) for any person willfully or unnecessarily (a) to interfere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) to loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or (2) for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the principal or president in charge.

The state also tacks a disorderly conduct law on top of this one.  In fact, Niya Kenny, who was present during the incident above, was arrested and taken to a detention center.  By her account, she simply spoke up against the officer’s actions.  “I was in disbelief and I started praying out loud. I said, ‘Isn’t anyone going to help her?’” 

The ACLU sued the state on behalf of Kenny and several others, asking that the state be barred from enforcing the law in the future.  The district court dismissed the case, reasoning that "fear of future arrest and prosecution under the two statutes does not rise above speculation and thus does not constitute an injury in fact."

In a major victory, the Fourth Circuit Court of Appeals just reversed the district court, saying the case can move forward.  The state was already considering changing the statute, but this new ruling will only add pressure for the state to act.

Read the full opinion here: Download 2018-03-15 Written order 4th Circuit

March 15, 2018 in Discipline | Permalink | Comments (0)

Student Finds Perfect Words During the National School Walkout: "We can’t be hunted”

I almost had to stop the car this morning when I heard the interview with a student in Great Neck, New York.  She helped organize the student walkout to protest gun violence in schools.  MSNBC's Ron Allen asked her: "Can you make this continue?  Can you keep the momentum going on?  In other words, is this going to be a one-day protest?"  The organizer's initial comments included many of the same feelings we here from other students.  They are energized.  They don't want to be afraid.  They want to be safe.  They demand change.  But then she offered a single line that has the power to change how people think: "We can’t be hunted.

That idea is the most poignant framing I have heard.  The gun lobby has wrapped so many of its arguments in the idealism of self-defense and hunting.  This young woman's use of words sucks the wind out of both.  Her phrase says this issue is not just about someone else's right to self-defense; it is about students' right to not be hunted.  But the deeper meaning of her words is that students are being "hunted."  If that idea sticks, it is hard to see how the gun lobby can win this fight.

Whether a phrase sticks depends on its accuracy and drama.  Her's has both.  While we dare not think or state it that way, our children have been hunted.  They are huddled into a confined space each day.  Attackers know exactly where they are.  And when the attacker arrives, he literally hunts them.  From Columbine to Parkland, shooters have entered buildings and hunted children, going room to room, picking them off one at a time.

The difference is not far removed from actual hunting ranges and lodges.  There are places scattered across the country that set up a perfect hunting scene for the sportsmen and sportswomen.  Pay your fee, bring your weapon, and the range masters will bring the animals to the hunter or the hunter to the animals.  Putting aside traditional forms of hunting, this type of hunting has always struck me as extremely strange.  Yet, there is something eerily similar about our school shootings, at least, from the perspective of the hunter.

The other powerful idea in the organizer's words is the fact that it begs the question of what we do to regulate hunting.  Not all hunting is legal.  For instance, there are times in the year when individuals can't hunt deer.  There are other seasons when you can only use a particular weapon to hunt deer.  There is a gun-season for deer and a bow-season.  And during bow season, you can't just use any bow.  Cross-bows are typically banned, unless the hunter has a disability and a special permit.  There are also rules against "baiting" animals.  The point is that we won't let hunters feed animals so that they eventually come right up to the shooter to be killed.  And, of course, there are some animals that cannot be hunted or trapped under any conditions.

If states are willing to heavily regulate the hunting of deer and other animals, why won't they regulate the hunting of children? 

Now, they will say they do.  It is, of course, already illegal to kill people.  But can't they look more closely at how children, in particular, are hunted?  Can't they outlaw the entry points into the hunting of children?  Are there weapons of choice for this type of hunting? 

Don't give us the Rubio response.  I know hunters can kill deer without a cross-bow.  That doesn't mean it is pointless to ban cross-bows.  States know there is a meaningful difference between a regular bow and a cross-bow and they take steps to limit the hunting of deer with cross-bows.

Children have far more rights to not be hunted than bambi. As the students are saying, no more BS.

The idea that "government can't force us to eat broccoli" completely undermined the Affordable Heath Care Act.  The idea that "voters should pick their legislators; legislators should not pick their voters" will bring down political gerrymandering soon enough.  If kids can make the hunting metaphor stick, they will change the whole playing field. And there won't be many in the gun lobby who can win on that field.

March 15, 2018 | Permalink | Comments (0)

Thursday, March 8, 2018

Voucher Programs: Are the Promises Realized?

The UCLA Civil Rights Project held a policy briefing at the U.S. Senate earlier this week on vouchers.  The briefing was to assess claims that vouchers will expand and equalize educational opportunities for disadvantaged students.  In addition to an empirical assessment of vouchers, the briefing "provide[d] guidelines for policy development that protect the rights of low-income students and students of color. Research findings will look at the civil rights implications of voucher programs and ask: do vouchers actually expand opportunity or undermine it?"

The briefing included presentations and papers by:

  • Jongyeon Ee on "Private Schools in American Education: A Small Sector Still Lagging in Diversity"
  • Mark Berends on "Lessons Learned from Indiana’s Choice Scholarship Program"
  • Mary Levy on "Washington, D.C.’s Opportunity Scholarship Program: Civil Rights Implications"
  • Preston Green on Private School Vouchers: Legal Challenges and Civil Rights Protections

Preston Green's paper (co-authored by Kevin Welner) offers some interesting insights.  He offers this summary:

The past fifteen years have seen an explosion of private school voucher programs. Half of US states now have some type of program that spends or otherwise subsidies private schooling. Yet most civil rights protections that students enjoy when they attend public schools do not follow them to private schools. Some state voucher laws include no protections or only the most basic protections against discrimination. Even the most protective laws include no safeguards against LGBTQ discrimination and no requirement of addressing the needs of students not fluent in English. Further, these laws contain few or no requirements that private schools meet the needs of students with disabilities, and many explicitly state that students waive their services and protections under the Individuals with Disabilities Education Act (IDEA) when choosing to use a voucher.

At a time when the Trump administration and many state policy-makers are pushing for additional growth of voucher policies, it is useful to consider how the shifting schooling landscape impacts such civil rights protections. The basic tendency in the development of voucher law and policy is to initially justify the subsidies in terms of the severe educational needs of students of color and students in poverty attending inferior public schools. As the policies develop, they increasingly move toward general subsidies for private schooling, including support for higher income groups and students who have never attended public schools.  Many of the state restrictions on funding nonpublic or religious institutions have been interpreted away by state courts. These trends call into question the ability of voucher programs to serve the vulnerable student populations for whom they were ostensibly created. 

In this report, we first detail the evolution of voucher policies, from their roots in the Jim Crow Era to their modern-day applications, including the rise of “neovoucher” programs. Next, we examine past legal challenges to vouchers, concluding that both state and federal constitutional challenges have had very limited success but that there likely remain some future legal impediments to voucher expansion. We discuss factors that may influence the legal justifications of vouchers, including the quality of education for students of color in voucher programs. Following this, we delve into some key policy issues that arise from this shift toward greater public funding of private schools, with a particular focus on civil rights concerns. We conclude with a set of recommendations, again focused on civil rights protections.

These recommendations include:

-Ensuring that state voucher laws include straightforward anti-discrimination provisions that require voucher-accepting private schools to avoid engaging in discrimination on the basis of race, religion, color, national origin, sex, disability, or sexual orientation

-Providing stronger protections for disabled students by requiring voucher-accepting private schools to comply with Section 504 of the 1973 Rehabilitation Act and the IDEA

-Securing better services for ESL students by requiring voucher-accepting private schools to comply with the Equal Education Opportunity Act of 1974

-Addressing barriers that impede access for low-income students, including lack of transportation, additional tuition charges beyond the value of the voucher, and private schools’ option not to participate in subsidized meal programs

The various papers are available for download here.


March 8, 2018 in Charters and Vouchers | Permalink | Comments (0)

Wednesday, March 7, 2018

Maryland's Remedy for Segregation in Higher Education Is "Woefully Inadequate," Says Legislative Black Caucus

A decade and a half into the litigation over Maryland's failure to integrate and treat its Historical Black Colleges and Universities (HBCU) fairly, plaintiffs have a new offer on the table.  The state is offering $100 million over the next ten years in increased resources for its HBCUs, which is twice as much as it previously offered.  For those new to the case, the Supreme Court in US v. Fordice considered segregation in the context of higher education and established standards for remedying the problem.  Of course, the fact that enrollment in higher education is voluntary makes the desegregation of higher education different than k-12.  But the simplest way to further integration in higher education is to avoid "program duplication."  Rather than offer programs in agricultural science and hotel management at both an HBCU and a traditionally white institution (TWI), the state could offer agricultural science at the HBCU and hotel management at the TWI.  It can also fund both schools fairly.  If it does so, the thinking is that students will voluntary integrate schools over time. 

In a nutshell, the trial court found that Maryland has done the opposite over the past couple of decades.  It has opened new campuses and expanded others when it could have been expanding the HBCUs.  To make matters worse, it offered new programs at other schools that duplicated the programs already being offered at HBCUs.  It goes without saying that the politics of university funding run high.  Add race and legacies to it and it only gets worse.  It is not clear that the state has made any good faith effort to fix the problem, even after having it brought to the state's attention.

From afar and given the findings by the trial court, $100 million looks like a relatively small offer.  The Maryland Legislative Black Caucus calls it "woefully inadequate."  The Caucaus released this letter:


I write in response to your chief legal counsel’s Feb. 7, 2018, letter of information regarding the status of the case — Coalition for Equity and Excellence in Maryland Higher Education Inc. v. Maryland Higher Education Commission et al — and your administration’s goals.

The Maryland Legislative Black Caucus appreciates that correspondence and your desire to end litigation in a manner satisfactory to all parties and to all Marylanders. We share your desire and believe that justice in this matter is long overdue.

Respectfully, your “comprehensive settlement” offer of up to $100 million over ten years is woefully inadequate given the district court’s finding that, in the decades since Brown v. Board of Education, the state has violated the constitutional rights of students at Maryland’s Historically Black Institutions. We note that similar lawsuits in other states such as Mississippi and Alabama have been settled for over $500 million and still have proven inadequate to alleviate longstanding educational discrimination in those states. While supplemental appropriations are necessary and appropriate, any proposed settlement should include the establishment of programmatic niches, academic enhancements, and a reformed process for approving new academic programs, at each HBI. We believe the court’s remedial framework, which would be overseen by a special master, goes a long way towards a truly comprehensive solution.

In sum, the single greatest state-sponsored educational deprivation in Maryland’s history deserves more. Given the proven, multi-generational discrimination against Maryland HBIs and the enormous importance of these institutions to our state, we believe an Amazon HQ2-like commitment is warranted from your administration.

Del. Cheryl D. Glenn
Chair, Legislative Black Caucus of Maryland

March 7, 2018 in Higher education, Racial Integration and Diversity | Permalink | Comments (0)

Tuesday, March 6, 2018

Is DeVos Really Handing Out "Tough Love" or Finally Realizing How Little Power She Has? She's Confusing the Rest of Us

A year into her job, Betsy DeVos is finally getting some perspective on the Every Student Succeeds Act and her job.  The problem is that is comes about a year too late and she does not like what she is discovering.  And no amount of spin can fix it.  She did make headlines with her supposed "tough love" talk, but when examined closely, it is mostly bluster and confusing.  

Before get into that, let's back up a bit to see how far she has come.  When she was riding high shortly after her nomination, I wrote that if she really understood the job she wouldn't want it.  The job she said she was coming to DC to do had already been done.  Well, its hard to admit ignorance and even harder to turn down a job as Secretary of Education, so she pressed on.

In December 2016, she said:  “It’s time to make education great again in this country. . . . This means letting states set their own high standards and finally putting an end to the federalized Common Core. . . . The answer isn’t bigger government — it’s local control, it’s listening to parents, and it’s giving more choices.”  What she didn't seem to know was that Congress had already gutted the Common Core and shifted enormous control back to states and districts.  For instance, the Every Student Succeeds Act bars the Department of Education from requiring or even suggesting that a state use the Common Core.  The Act is so anti-Common Core and anti-federal standards that DeVos and her staffers would get in trouble if they even brought the subject up.  The state accountability requirements, likewise, leave little room for the Secretary to object.  States have to include a few things like tests scores and graduation rates, but the scores they use, the amount of weight they assign those scores and the limitless number of other factors they consider is up to the states.

DeVos does not like what states produced under this system and now she is claiming to hand out "tough love."  A better description is talking tough because no one is listening.  Or making up boogeymen to see if anyone is scared.

Yesterday in her speech to State Education Chiefs, she said:

Just because a plan complies with the law doesn't mean it does what's best for students. Whatever the reasons, I see too many plans that only meet the bare minimum required by the law. Sure, they may pass muster around conference tables in Washington, but the bare minimum won't pass muster around kitchen tables. . . . Some of your own governors–"Republicans and Democrats -- didn't like your plans either and refused to sign off on them. … [One] warned his state's superintendent that ‘adding layers of bureaucratic paperwork does little to help low-performing schools." … [A]nother governor lamented that his state's plan ‘stymies any attempt to hold schools accountable for student performance and includes provisions aimed at preserving the status quo in failing schools. . . .

For too long, many of you have operated – and in many cases, been forced to operate -- as if your work was only accountable to folks in my office. As if all that mattered in education was a sign-off from Washington… My predecessors, from both parties, often fell into the trap of a top-down approach.

Let's put this into perspective and  break it down.  First, ESSA returned discretion to states and said the bar for federal accountability was very low.  States, acting rationally, exercised that discretion and did as little as possible to comply with the law.  This doesn't mean they lowered the quality of education, but they stopped worrying about Washington.

Second, this is exactly what DeVos claimed she wanted before she took (and understood) the job as Secretary.

Third, DeVos is now realizing she doesn't like her job and how little power she has.  She cannot reject these state plans.  She can't demand higher expectations, more equity, or more adequacy any more than she can demand more choice.  So she signed off on them just like the law dictates she must.  

Fourth, you know who does have plenty of power?  The states.  She said it herself: "some of your own governors . . . refused to sign off on" the plans.  So ESSA worked just how it was intended.  States make the decisions and the Secretary will rubber stamp them.

Fifth, the truth is that DeVos probably doesn't like being a powerless Secretary any more than any of those who preceded her.  So she has to try something and she is doing the only things she can.  She is complaining and begging states to do better.  She is even trying to find a boogeyman to motivate them, since she lacks the power herself. 

But I can't figure out who the boogeyman is: is it accountability or non-accountability?  On the one hand, she says the problem is that states have too long been accountable to the feds.  That was a problem.  Now that they aren't accountable anymore, she says that is problem too.  It is a problem because they are not taking their freedom far enough.  Wait, maybe they did exactly what they wanted to do--as little as possible--and now they have the Secretary of Education telling them to do more--or rather begging them.  Seems a little contradictory and patronizing.

March 6, 2018 in Federal policy | Permalink | Comments (0)

Monday, March 5, 2018

West Virginia Teachers Showing That They Can Accomplish Far More Than Any Court

The West Virginia teachers' strike has been dominating the news as of late.  I dare say no other local education news story of this genre has garnered this much attention in a few years.  The only other comparisons that come to mind are the extreme teacher shortages in 2015, Pennsylvania's inability to pass an education budget between 2013 and 2015, and the Kansas courts' fight with the state over school funding since 2013.  

What strikes me as different about West Virginia is how rapidly the story is developing and my expectation that the teachers will succeed.  The news that the state appears to be on the verge of ceding to their demands sparked what should be an obvious point, but one worth making: teachers can accomplish more than courts.

I have spent the better part of my career focusing on education reform through the legal system--desegregation and funding equity in particular.  The courts, however, always struggle to secure reform.  Courts had to all but take over public schools to achieve desegregation in many jurisdictions and, even then, they needed school leaders to help. 

School funding is arguably even more difficult.  Courts cannot pass education budgets themselves and they cannot throw legislators in jail.  The most they can do is order the shutdown of schools (a dangerous game of chicken) or fine the state (which it may or may not actually pay). 

The most typical result in these fights, however, is a lot of foot-dragging by the state.  In other words, no matter what, desegregation and funding litigation demonstrate that reform through the courts is a very slow process, even  when it works.  

West Virginia's teachers are showing how quickly they can make things happen when they put their mind to it.  They have the leverage and courage of convictions that no others have.

The state, of course, resents this, which probably explains whey they are dragging this out for a few more days.  Legislators probably assume that if they cave too easily they just invite similar efforts in the future.

There is probably truth and ignorance in such a notion.  The ignorance lies in the notion that teachers would just do this on a whim.  The vast majority of teachers care deeply about their students and don't just wake up and decide to shut down schools.  It takes quite a bit of neglect to push teachers this far.  Most just quit their job and move to another profession rather than take such bold moves. 

And those that suffered the neglect in West Virginia thought deeply about their students before striking.  They know that some students get their only meals at school.  So before they went on strike, they made sure students had food, securing meals for students out of their own pockets. 

Of course, this is nothing new.  Teachers across the country spend hundreds of dollars a year to buy supplies for their students.  Many go to extraordinary lengths to see that their students have clean clothes or maybe a gift over the holidays.  And they do it quietly without complaint.

So I don't think West Virginia needs to worry about teachers being too self-serving.  What West Virginia and other states need to worry about is teachers realizing the power they have to make a difference in public education policy.  When states have attacked teacher tenure and other benefits in recent years, the response of teacher organizations has been to argue that what is good for teachers is good for students and that many of the most helpful reforms of the past two decades have come because teachers demanded it.

If teachers in the 26 or so states that have recognized a constitutional right to education fully appreciated what students are owed, they could achieve far more than any state supreme court.  State legislators may threaten and ignore courts, but let's see them do that to teachers.  State legislators only real leverage in a battle with teachers is the court of public opinion.  I am guessing that when teachers act with righteous convictions on behalf of their students, they are going to win that one.

March 5, 2018 in School Funding | Permalink | Comments (0)

Friday, March 2, 2018

Teachers in West Virginia Have Every Right to Strike: If Anyone Is Breaking the Law, It's the State

Joshua E. Weishart, Associate Professor of Law & Policy at West Virginia University College of Law and John D. Rockefeller IV School of Policy and Politics, offers this provocative analysis of the West Virginia teachers' strike:

Much was made over the past few days that the teacher strike has been unlawful. The attorney general was keen to remind state agencies repeatedly that his office stood ready to pursue legal action against the teachers. To be sure, during the last statewide teacher strike in 1990s, the West Virginia Supreme Court ruled that, because teachers enjoy no collective bargaining rights, they have no right to strike. Yes—they have no rights, because they have no rights. Traditionally, a strike by public employees was viewed as affront to the state’s sovereignty that could threaten public health, safety, and welfare by interrupting vital government services. That argument carries more force with, say, firefighters and law enforcement than teachers, who are not public safety officers, at least not yet. Of course, teachers do perform vital services, indeed, they perform constitutional services to nearly 300,000 children in our state. But that is the very reason why it was shortsighted to view this latest teacher strike as “illegal” in any true sense of the word.

From the moment the attorney general tweeted that the strike “is unlawful and should come to an end” (before it even began), the debate about the teacher strike has been focused on the wrong West Virginia Supreme Court decision. The consequential decision is not the one upholding the common law rule that teacher strikes are, strictly speaking, unlawful but the groundbreaking decision which held that children have a fundamental right to an equitable and adequate education under the West Virginia Constitution. Pauley v. Kelly was the first high court decision in the nation to define the right to education in substantive terms. Among other things, the court determined that the “thorough and efficient” education prescribed by the constitution requires good and competent teachers. Decades of empirical social science research, in fact, confirms that teacher quality is the most influential educational resource affecting student achievement that is entirely within a school’s control.

So, when noncompetitive salaries and benefits, teacher shortages, or the lack of professional development and support cause us to lose quality teachers, those unfavorable conditions, in turn, jeopardize our children’s fundamental right to education. Viewed from that perspective, the teacher strike was no more unlawful than the state’s dereliction of its own constitutional duty. To put things into further perspective, approximately 80% of public school expenditures are for personnel salaries and benefits. It’s not the school building or the textbooks that educate, it’s our teachers. And funding that education, Pauley held, is our state’s first constitutional priority, “ahead of every other State function.” In a footnote the court added, “The patriots of this State were never afflicted with an Appalachian mentality that finds nobility in ignorance.” In that spirit, the teachers who walked the line to provoke greater investment in our children’s education were not deviants engaged in “illegal conduct” but patriots who deserve our utmost respect and gratitude.  

March 2, 2018 in School Funding, Teachers | Permalink | Comments (0)

Thursday, March 1, 2018

The Growing Civics Deficiency and the Potential Legal Responses

Civics education is getting an unusually significant amount of attention.  The Century Foundation, for instance, released a report last year and the Center for American Progress just release another.  According to the report:

Civic knowledge and public engagement is at an all-time low. A 2016 survey by the Annenberg Public Policy Center found that only 26 percent of Americans can name all three branches of government, which was a significant decline from previous years. Not surprisingly, public trust in government is at only 18 percent and voter participation has reached its lowest point since 1996. Without an understanding of the structure of government; rights and responsibilities; and methods of public engagement, civic literacy and voter apathy will continue to plague American democracy. Educators and schools have a unique opportunity and responsibility to ensure that young people become engaged and knowledgeable citizens.

While the 2016 election brought a renewed interest in engagement among youth, only 23 percent of eighth-graders performed at or above the proficient level on the National Assessment of Educational Progress (NAEP) civics exam, and achievement levels have virtually stagnated since 1998. In addition, the increased focus on math and reading in K-12 education—while critical to prepare all students for success—has pushed out civics and other important subjects.

Michael Rebell has used these type of findings for the premise of his forthcoming book: Flunking Democracy: Schools, Courts, and Civic Participation.  Rebell, however, goes a step further than these reports and explores how these deficiencies relate to the state constitutional right to education.  It is an excellent read.  I highly recommend grabbing a copy when it becomes available in about a month.  The promotional materials offer this summary:

 The 2016 presidential election campaign and its aftermath have underscored worrisome trends in the present state of our democracy: the extreme polarization of the electorate, the dismissal of people with opposing views, and the widespread acceptance and circulation of one-sided and factually erroneous information. Only a small proportion of those who are eligible actually vote, and a declining number of citizens actively participate in local community activities.

In Flunking Democracy, Michael A. Rebell makes the case that this is not a recent problem, but rather that for generations now, America’s schools have systematically failed to prepare students to be capable citizens. Rebell analyzes the causes of this failure, provides a detailed analysis of what we know about how to prepare students for productive citizenship, and considers examples of best practices. Rebell further argues that this civic decline is also a legal failure—a gross violation of both federal and state constitutions that can only be addressed by the courts. Flunking Democracy concludes with specific recommendations for how the courts can and should address this deficiency, and is essential reading for anyone interested in education, the law, and democratic society.

March 1, 2018 | Permalink | Comments (1)