Education Law Prof Blog

Prof. Villazor's Op Ed on DACA; School Resegregation

In case readers missed it in the recent flurry of news about the Deferred Action for Childhood Arrivals (DACA) program, here's the link to UC Davis professor Rose Villazor's op ed in the New York Times, What Do Dreamers Do Now?. The Times also ran its education issue this weekend, featuring an article on the resegregation of American schools in The Resegregation of Jefferson County. Blog editor Derek Black discussed the court order involved in his post this summer, Why Schools Still Can't Put Segregation Behind Them.

David Seeley, "Soldier" In The Battle To Desegregate Schools, Dies At Age 85

Last week's New York Times recognized the contribution of David Seeley, who served as Assistant Education Secretary during President Lyndon Johnson administration. In a June 2016 interview with the website The 74, Seeley described himself as a "soldier" in while working for the Eisenhower administration (1956-59), negotiating school districts' "total massive resistance" to desegregation after Brown v. Board of Education, work that he continued in the Johnson administration. Dr. Seelely wrote an influential book on building community schools, “Education Through Partnership," and taught at CUNY after his career in national and city government. Seeley reflected in the June interview that the work on desegregation is far from over:

We got practically all of [the school districts] to come in with plans, but many made it easy for the “separate but equal” doctrine to be kept alive by leaving integration up to a school’s or individual family’s choice … So we didn’t get much integration going, nor did we convert the Southern people, who I think are still unconverted. They’re right in a resurgence of the old Confederacy today — today, right now, we’re still confronting this. … We’re definitely not past the race problem. Right here in Staten Island, too, it’s gotten worse as a matter of fact.

The NYT obituary is here.

Reuters: Supreme Court May Wait To Decide Transgender School Bathroom Cases

Lawrence Hurly reported for Reuters yesterday that the U.S. Supreme Court may be reluctant to take up  Gloucester Co. Sch. Bd. v. G.G., the case of 17-year-old transgender student Gavin Grimm, who was barred by his school from using the the boys’ restroom at school, despite him having a state ID that identifies him as male. This upcoming school year, Grimm will have to use a separate single-stall restroom. On August 3, the Supreme Court granted an emergency stay recalling the mandate of the Fourth Circuit Court of Appeals that would have allowed Grimm to use a bathroom congruent with his gender identity. The stay reinstated the the Eastern District of Virginia's June 2016 preliminary injunction order denying Grimm's request to use the boys’ restroom. Hurly predicts that the short-handed Supreme Court will be cautious about granting certiorari, particularly because the decision could end in a 4-4 deadlock and because the Fourth Circuit's ruling was the first decision of its kind in the federal circuits. Hurly's article is here.

NYT Education Issue: An Effective but Exhausting Alternative to High-School Suspensions

In keeping with Derek's post yesterday on the ED's guidance to reduce violent interactions between students and school resource officers, the New York Times' annual education issue has an article by Susan Dominus, An Effective but Exhausting Alternative to High-School Suspensions, focusing on a school that is trying to implement a restorative-practices model of school discipline. The article describes the efforts in Leadership and Public Service High School in Manhattan’s Financial District to reduce its student suspensions (230 in 2013 and in 140 in 2014). Leadership's principal and dean recruited staff who were trained in restorative justice practices and coached teachers on how to use non-punitive language with students, among other efforts. The article is online here.

Huntsville, AL Education Association Sues District For Withholding List of "Ineffective" Teachers

The Huntsville (AL) Education Association (HEA) sued Huntsville City Schools last week alleging the district illegally revised procedures for determining when a teacher will be found ineffective and violated the state's open records act by withholding a list of the names of teachers it considered to be ineffective. The controversy began last December when Huntsville City Schools Superintendent Dr. Casey Wardynski (who is no stranger to controversy) gave a presentation to principals entitled "Guidance for Dealing With Teachers Who Are Not Effective." During that presentation, Dr. Wardynski and the district's attorneys purportedly provided the principals with a list of the district's ineffective teachers. Both the Huntsville Education Assoc. and the state teachers' union requested the names, but the district allegedly refused the request. The HEA has asked the state court for a preliminary injunction allowing the HEA to see the new standards and list before the City Schools takes any action and for injunctive relief requiring the City Schools to turn over the materials under the open records law. The complaint is here.

Detroit School Board Sues Michigan Again Alleging Financial Mismanagement and Poor Conditions

The Detroit Public Schools announced last week that it is again suing the State of Michigan in a class action suit under Section 1983, this time alleging that the appointment of  emergency managers has resulted in financial and academic mismanagement and deteriorating building conditions. This suit follows DPS's suit last year alleging that Michigan Governor Rick Snyder's administration was trying to privatize the school district. The latest suit, Paulding v. Snyder, alleges that the state's failure to adequately fund education and improvements to DPS schools violates the civil rights of the district's 58,000 students. The suit lays much of the blame for DPS's financial problems (the legislature recently passed a bill for $48.7 million in emergency funding to keep the DPS open through the end of the school year) on the Emergency Manager Law. In January, the Detroit Federation of Teachers also sued the state alleging that then-emergency manager Darnell Earley failed to address deteriorating buildings. The Detroit Free Press has posted a copy of the suit here.

Class Action Suit Filed Against NYC Schools For Failing to Protect Students From Violence

We have not seen the complaint yet, but the New York Times reports that the pro-charter group, Families for Excellent Schools, along with eleven students, have filed a class-action lawsuit against the New York City Department of Education (NYCDOE) claiming that incidents of violence and bullying in public schools deprive students of their constitutional right to an education. Cribbled from Reuters: "The federal complaint, filed in Brooklyn on Wednesday, asserted that the "staggering" level of violence in city schools disproportionately affected minority students. "The violence knows few boundaries, except that, on average, white and Asian students encounter far fewer incidents of school violence than black and Hispanic students," the lawsuit said. It also claimed that younger students, disabled students and gay, lesbian and transgender students are targeted more frequently for abuse." The plaintiffs seek injunctive relief to requires the NYCDOE to enforce already-existing procedures to keep students safe and to investigate acts of violence in schools. NYC Mayor Bill de Blasio has refuted allegations of widespread violence in city schools, pointing out that such incidents are on the decline. The group that has joined the plaintiffs, Families for Excellent Schools, was recently profiled in the Nation after its record-setting spending in recent state legislative campaigns and lobbying efforts.

Shirley Hufstedler, The Nation's First Education Secretary, Dies at 90.

Shirley Hufstedler, the nation's first Secretary of Education, has died in California, according to media reports. Huftstedler, who was also one of the first eight women appointed as Article III judges, resigned from the Ninth Circuit Court of Appeals in 1979 to serve as Secretary for the newly-created Department of Education. On her decision to accept President Carter's appointment to the cabinet post, Hufstedler said:

By taking a [c]abinet post . . ., I gained power to effect change, but I also traded the relative independence and security of a judge for a very different set of legal and political restraints. I can no more rewrite the federal role in education to advance women's rights than I could make up statutes [when I was] a judge.

Mary L. Clark, One Man's Token Is Another Woman's Breakthrough? The Appointment of the First Women Federal Judges, 49 Vill. L. Rev. 487, 525 (2004). After serving as Education Secretary, Hufstedler helped convince the Reagan administration to keep education as part of the cabinet.

North Carolina Blocks Transgender Persons' Access To Public Facilities That Reflect Their Gender Identities

The state legislative trend continues to require transgender persons to use public facilities that align with the biological gender on their birth certificates rather than their gender identity. We've noted several state legislative efforts in this direction, most recently about Tennessee's law creating a lock-in exclusion for transgender students because another state law prohibited the state from recognizing sex changes on birth certificates. Yesterday, North Carolina Governor Pat McCrory signed the Public Facilities Privacy & Security Act (H.B. 2), which requires that multiple-occupancy bathrooms and locker rooms in public schools and government buildings be used by persons only according to their biological sex. The new law also blocks local governments from enacting ordinances to allow transgender people to use public bathrooms that match their gender identities -- targeting Charlotte's anti-discrimination ordinance passed last month that allowed people to choose restrooms corresponding to their gender identity. When the Charlotte ordinance was passed, Gov. McCrory commented that the law was a threat to public safety, so the swift response by the N.C. General Assembly was expected. Responding to H.B. 2's passage, Chris Brook, Legal Director of the ACLU of North Carolina, stated on the ACLU website,  "We are disappointed that Governor McCrory did not do right by North Carolina’s families, communities, and businesses by vetoing this horribly discriminatory bill, but this will not be the last word." More on the new law here.

Frustrated With The Kansas Supreme Court That Struck Down The State Education Budget, Legislators Try To Expand The Grounds For Impeachment

We have been following the Kansas Supreme Court's repeated rejections of the state's education funding scheme here, here, and here over the last year. This week, a committee in the Kansas Senate is considering a bill that would make "attempting to usurp the power of the legislative or executive branch of government" grounds for impeachment. The bill was prompted by the court's rulings declaring that the state education budget an unconstitutional denial of the right to an education and other rulings that have antagonized the Republican-led legislature (four of the current justices were appointed by Democrat governors). The legislature has been looking for ways to limit the court's power but has found getting rid of the justices difficult. Kansas' supreme court judges only face retention elections every six years and can be voted out only if more than fifty percent of the electorate vote against them. Currently, justices can only be impeached for treason or serious misbehavior. Read more on this story at SFGate here.

Plaintiffs Challenge School Dress Code That Bans Girls From Wearing Shorts Or Pants

Parents of three female students are suing North Carolina's Charter Day School, alleging that its dress code prohibits girls from wearing pants or shorts even though boys are required to wear pants or shorts to school. Female students must wear skirts, skorts, or jumpers to school or face disciplinary action. To avoid overexposure in jumpers and skirts, female kindergartners have been instructed on how to "sit like a princess" during reading time when students sit on the floor. The plaintiffs allege that the dress code at the K-8 school is enforced daily except the one day a week that students wear their gym uniforms to school and during school "spirit days," when students must pay $2 to be allowed to wear jeans. According to the suit, school officials told parents that skirts presented a more “professional image”  and that the policy was based on “chivalry,” “traditional values,” and “mutual respect.” The founder of Charter Day School elaborated in an email that the number of female students injured during the Columbine shootings showed a need for students to feel respect for their peers. The ACLU represents the plaintiffs in the § 1983 suit filed in the U.S. District Court for the Eastern District of North Carolina, posted here.

Black History Month Video On Structural Discrimination Banned In Virginia After Parents' Complaints

The Christian Science Monitor covered the recent controversy about an animated video called "Structural Discrimination: The Unequal Opportunity Race" that was shown at a Virginia high school assembly for Black history month. After the short video was shown to 1,500 students of Glen Allen High School in Henrico County, Va., parents complained that the video fostered "white guilt." School officials promised to ban the video, calling it racially divisive. The video shows a track race during which minorities are delayed by walls, holes, and bars while words such as “slavery,” “manifest destiny,” “genocide,” and “segregation” appear on the screen. White racers sprint forward unimpeded during the race. Henrico Co. school officials apologized for the video, and the school superintendent told local media that it “was not the best way to deliver” a lesson about American history and racial discrimination. Missing from the school official's statements is any elaboration on what was wrong or offensive about the video, other than uncomfortable feelings about its message. Rather than using the video as an opportunity for healthy debate, the Monitor argues that suppressing the video is another sign of our reluctance to talk about race directly. See the video at the Monitor's site here.

Tennessee Lawsuit Accuses Nashville Schools of Removing Students From Classes To Raise District's Year-End Exam Scores

In a short complaint filed this week in Tennessee Chancery Court, a student alleges that that the Nashville Metropolitan Public Schools' uses a "cynical and self-serving" practice of prematurely removing students from classes that the district anticipates that students will fail in violation of due process and their state constitutional rights to an education. The student, Toni Jones, states that she was removed from an algebra class after she performed poorly on a practice test that the district used to predict students' performances on final exams. She was passing her algebra class, but alleges that because of the district's policy, she fell behind her peers and was not promoted to the next grade.  Jones was placed in an online remedial math course, but she states that the class did not assist her as much as an in-person instruction would have, and she was thus unprepared for the next term's geometry class. The complaint contends that the Nashville Metro district removes students from classes prematurely to "fraudulently inflate[] its End-of-Course scores." The complaint is on Scribd here.

Senators Criticize ED and DOJ for Letting For-Profit College Company EDMC Off Too Lightly

The Huffington Post reports that Senators Elizabeth Warren, Richard Blumenthal (D-Conn.), and Richard Durbin (D-Ill.) scolded the Education and Justice Departments Monday for the government's recent settlement with the Education Management Corporation (EDMC), the for-profit college company accused of using illegal recruiting practices to persuade students to take on massive loan debt for degrees that frequently did not lead to profitable careers. In the recent settlement with the government and four states, EDMC settled claims that it ran employed recruiters to pressure students to attend its its schools, including The Art Institutes, Argosy University, Brown Mackie College and South University. In the letter, Sen. Warren took ED Secretary Duncan to task for stating to the press after the settlement that EDMC's actions were "not misrepresentations to students," and thus, its students may not be eligible for debt relief programs. Sen. Warren's letter argued that student debt relief should have been part of EDMC's $95.5 million settlement with the government or that the company should have been required to admit wrongdoing. Instead, Warren wrote, EDMC's fine was less than one percent of the estimated $11 billion in student loan aid that the company fraudulently received, and because there was no admission of guilt, none of EDMC's individual executives will be prosecuted. Letting the company's executives off the hook conflicts with the Justice Department's "Individual Accountability for Corporate Wrongdoing," policy announced this September, Warren noted. The letter request that the ED and the DOJ respond to the Senators' concerns by December 17.

New York Charter School Accused of Failing to Provide Services to Special Education Students

The New York Times reported yesterday that five students have sued Brooklyn's Achievement First Charter School, alleging that the charter school has failed to provide federally-mandated special education services to students with disabilities. One plaintiff, a mother of a special education student at the school, stated that her child had not received paraprofessional services to which he was entitled for a year. Achievement First is part of a network with schools in New York, Connecticut and Rhode Island. The suit also accuses Achievement First of improperly disciplining special education students, such as on one occasion, sending a third grader to a second grade classroom as punishment for misbehavior. Attorneys for the plaintiffs, the New York Legal Assistance Group, allege that the problems at Achievement First arise in part from the charter network's culture of strict discipline for even minor infractions, which can result in punishing special education students for behaviors related to their disabilities. The NY Times story is here.

ED: School District's Continuing Refusal to Allow Transgender Student to Use Girls' Locker Room Violates Title IX

Last Friday Derek's posted about the federal government's amicus brief in support of a transgender's student request to use restrooms that were consistent with his or her gender identity. The Office for Civil Rights delivered the administration's position again yesterday when it told an Illinois school district that denying a transgender student access to facilities consistent with the student’s gender violated Title IX. OCR found that Township High School District 211 in Palatine, Ill., unlawfully denied a transgender student access to gender-appropriate school facilities in violation of Title IX. The district had offered a few alternate facilities to allow the student to dress for athletics and physical education classes, but all of the facilities involved isolating the student from the other female students in the school's locker rooms. The district placed the student in a single-occupancy bathroom to which the student had to walk past fitness and weight rooms when male students were present. Moreover, the student told OCR investigators, using the separate bathroom made her feel "ostracized." For its part, District 211 officials have said they allow transgender students to have access to the bathrooms of the gender they identify if there are stalls, but not to locker rooms where students are undressing. As Professor Sacha Coupet (Civitas Child Law Center, Loyola) summed up the district's position, "it's still a matter of opposite-sex body parts being in a gender-specific space." After the district tried other accommodations short of giving the student access to the female locker rooms, OCR and the district reached an impasse. OCR rejected the district's explanation that it separated the student to protect the privacy of other students. In its Nov. 2 letter, OCR gave the district thirty days to come up with a satisfactory solution or risk jeopardizing its federal funding. The OCR letter, courtesy of the Chicago Tribune, is here.

California Bans Term "Redskins" As School Team and Mascot Names

Earlier this summer the Washington Post reported that a U.K. based English tutoring school changed its name from ISIS Schools to prevent confusion with the terror group called ISIS. Many companies around the world are doing that. What stood out was the ease with which ISIS Schools did it, compared with the hand-wringing that we go through in the United States to replace offensive or anachronistic school names. California just took a step forward Sunday with Governor Jerry Brown signing the California Racial Mascots Act, which prohibits public schools from using the term Redskins as a school or athletic team name, mascot, or nickname beginning January 1, 2017. California the first state to ban the use of the term "Redskins." Gov. Brown declined, however, to sign SB 539, which would have prohibited "the use of an elected leader or senior military officer of the Confederate States of America to name state or local property." Gov. Brown said in a veto statement that "[l]ocal governments are laboratories of democracy which are quite capable of deciding for themselves which of their buildings and parks should be named, and after whom."

Federal Suit Alleges Racial Discrimination in Arkansas' Takeover of Little Rock School District

The LRSD's overall faculty population is 32% black, but minorities make up a much smaller percentage of the faculty at the district's schools with a majority-white student body.

Cribbed from the Northwest Arkansas Democrat Gazette: Another suit challenging the Arkansas Board of Education's decision to assume control of the Little Rock School District (LRSD) was filed Wednesday, this time in federal court. The federal complaint was filed by parents and students in the Little Rock district and two former school board members who were displaced after the state's January takeover of the district, after which a state court complaint was filed by the same attorney who represents the complainants in the federal case. The federal suit alleges that LRSD's black students suffered racial discrimination after a federal court held that the district had achieved unitary status in 2007, by being disciplined more harshly than their white peers, being educated in inadequate facilities, having their elected school board stripped of power, and by the district's building new schools away from majority-black areas. The complaint also notes that in the LRSD schools with a majority-white student body, the percentage of minority teachers are low (see graphic, courtesy of the Arkansas Times). The suit requests that the school board be restored, that LSRD be enjoined from opening a new school in west Little Rock (a majority-white area), and that the state be enjoined from approving new charter schools until the LRSD has a "constitutionally adequate" facilities plan. The Arkansas Times has posted an unofficial copy of the complaint in Doe v. Arkansas Dept. of Ed. here.

John King Expected to Stay the Course as Acting Secretary of Education

Following Education Secretary Arne Duncan's announcement last week that he is stepping down in December, eyes have turned towards Duncan's successor, John King. Here's U.S. News and World Report's 5 Things to Know about the New Education Secretary:

1. King was most recently the commissioner of New York state public schools. In this role, King oversaw New York's schools during a period of tumultuous change driven largely by the state's winning of a federal Race to the Top grant. He supervised the implementation of the Common Core State Standards, new teacher evaluations based in part on student test scores and the expansion of charter schools, among many other significant policy changes. 

2. King says he owes his life to public school teachers: "Education can be the difference between life and death," King said last week during a press conference at the White House where President Barack Obama introduced him as the new acting education secretary. "I know that's true because it was for me. New York City public schools teachers are the reason I am alive. They are the reason I became a teacher and the reason I'm standing here today." King had a difficult childhood. By the age of 12, both of his parents, who were public school teachers, had died. After that, he lived with his half-brother, who had alcohol problems, and later his aunt and uncle. School, he said, was his sanctuary. 

3. King has gone to battle with teachers unions: Like his predecessor Duncan, King had to stand up to teachers unions while commissioner of New York's public schools, a stance that hasn't historically been the norm for Democrats. In 2014, the state teachers union called for his resignation, and he's not exactly being welcomed into his new role with open union arms, either. "We are disappointed to hear that Deputy Secretary of Education John King Jr. will be appointed as the acting secretary," Randi Weingarten, American Federation of Teachers, said last week in a statement. "No one doubts John's commitment to children, but his tenure as New York state's education commissioner created so much polarization in the state with parents and educators alike that even Gov. Andrew Cuomo is finally doing a mea culpa over the obsession with testing. We can only hope that King has learned a thing or two since his tenure in New York."

4. King is big on charter schools: In 1999, King founded a charter school just outside Boston – the Roxbury Preparatory Charter School – that became the highest-performing urban middle school in Massachusetts. He helped open several others in New York City as the managing director of Uncommon Schools, a nonprofit charter management organization that focuses on closing achievement gaps and preparing low-income students for college. The organization oversees 24 schools throughout the city, as well as in upstate New York, Newark, New Jersey, and Boston.

5. King hasn't been OK'd by Congress for his current position and probably won't be the permanent secretary: When King first came on board at the Education Department, he was a "senior adviser" who was delegated the duties of the deputy secretary, even though he'd been tapped to replace Jim Shelton, who at the time was second-in-command at the department. His adviser title allowed him to shirk congressional approval, a laborious and increasingly political process. When Duncan says his final goodbye to the department in December, King's new position will be acting secretary, which once again will allow him to serve during the remaining year of the Obama administration without getting the OK from Congress.

The Ninth Circuit Takes The Middle Ground In O'Bannon v. NCAA, But The Case for College Athletes' Compensation Is Still Open

The Ninth Circuit decided O'Bannon v. NCAA yesterday, upholding the district court's finding that the National Collegiate Athletic Association's restraints on what its member schools could pay Div. I college basketball and football players violated the antitrust laws, but vacating the lower court's  remedy that would have required the NCAA to allow its member schools to pay student-athletes up to $5,000 per year in deferred compensation. The case arose when class plaintiffs, represented by former UCLA basketball player Ed O'Bannon, challenged the NCAA's rules against player compensation that prohibit college athletes from receiving any compensation to be eligible to play college sports. The NCAA's rules applied to players' names, likenesses, and images even after they finished school, which prompted the suit when O'Bannon and other athletes recognized their likenesses in NCAA-licensed video games. Last year, a California district court ruled that NCAA violated antitrust law by not allowing athletes to be paid for the use of their names and likeness and enjoined the NCAA from prohibiting its member schools from giving student-athletes scholarships up to the full cost of attendance at their respective schools and paying players $5,000 each year in deferred compensation to be held in trust while they were still eligible to play college sports. While the NCAA will be unhappy that the Ninth Circuit declined to exempt it from antitrust scrutiny because of its tradition of amateurism, it should be relieved that the panel credited its argument that amateurism is a legitimate procompetitive purpose that supports the NCAA's eligibility rules. The class plaintiffs, on the other hand, can claim partial victory for the Ninth Circuit's recognition that the NCAA's rules are"more restrictive than necessary to maintain its tradition of amateurism in support of the college sports market," thus providing more traction to help the pipeline of cases pressing for compensation for college athletes, including Jenkins v. NCAA. The Ninth Circuit stressed that its opinion was limited and that it did not want to change college sports into another minor league of professional sports. Mark Edelman at Forbes thinks that the plaintiffs lost this case during the bench trial below in not countering the NCAA's study showing that that its rules increased consumer demand among fans to attend college sporting events - an important pro-competitive benefit. Read the Ninth Circuit's opinion in O'Bannon v. NCAA here.