Education Law Prof Blog

Kansas Supreme Court Denies Local District's Request To Intervene In School Finance Suit

The Kansas Supreme Court held yesterday that a local school district could not untimely intervene in a school equity funding lawsuit. The state supreme court acknowledged that the interests of Shawnee Mission School District No. 512, which wanted to eliminate a cap on the local option budget, were not adequately represented by the suit's defendants, the State of Kansas. However, the court concluded, the District could not overcome it's untimely entry into the case. The court noted that the district could file an amicus brief to voice its interests. The case is Gannon v. State, No. 113908 (Kan. Sept. 21, 2015): http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2015/20150921/113908.pdf

Students Challenge New Jersey's New Graduation Requirements

The Education Law Center and ACLU of New Jersey issued this press release:

On September 1, several New Jersey students and their families filed a lawsuit challenging the NJ Department of Education’s (NJDOE) attempt to impose new exams and other fee-based tests as requirements for high school graduation without adopting new regulations as required by law.

The lawsuit, T.B., et al. v. NJ Department of Education, contends that NJDOE failed to follow existing regulations or propose new ones under the NJ Administrative Procedure Act (APA) when Commissioner of Education David Hespe announced that new graduation requirements would apply to this September’s incoming senior class.

Continue reading

Texas Repeals Controversial Truancy Law

Last weekend, Texas Gov. Greg Abbott signed legislation ending Texas' criminal penalties for the "failure to attend school" law. The controversial law made Texas one of two states that prosecuted schoolchildren (and their parents) when students skipped school or class without a valid excuse. Last year, for example, Texas reportedly prosecuted 100,000 children and their parents for truancy. Now, instead of treating truancy as a Class C misdemeanor, the new law requires schools to address students’ truancy problems, such as homelessness, illness, or other difficulties, before referring students to court. Additionally, truancy matters will now be referred to civil rather than criminal court. With a coalition led by legislators and Texas Appleseed, H.B. 2398 received broad-based support from Texas Association of School Boards, the Texas Association of Business, the Juvenile Justice Association of Texas, Texas Justices of the Peace & Constables Association, and the Texas PTA. Texas was under investigation by the Department of Justice for the truancy law this spring, and a class action suit was filed challenging the law. Read more about the bill at the Courthouse News Service here and H.B. 2398 here.

Florida Court Recognizes Special Duty to Protect Students

In 2008 fifteen-year-old Abel Limones collapsed in the middle of a high school soccer game. When he was unable to get up, Thomas Busatta, his coach, ran onto the field to check on Abel. Within a few minutes Abel had lost consciousness and appeared to have stopped breathing. Busatta, who was trained and certified in the use of automated external defibrillators (AEDs), called for an AED. There was an AED in the game facility at one end of the field, however it was never brought to Busatta. EMS responders brought their own AED and were only able to revive Abel almost half an hour after his initial collapse. Due to the delay and a lack of oxygen, Abel suffered severe brain injury, placing him "in a nearly persistent vegetative state that will require full-time care for the remainder of his life."

Continue reading

Alabama Supreme Court Upholds Tax Credit Law

Most people are hearing about the Alabama Supreme Court for a different reason this week, but the court also upheld the constitutionality of the state's tax credit law for school scholarships yesterday. The state supreme court rejected a challenges to the bill's constitutionality on the grounds that the law diverted  public funds for private education, put more than one subject in a bill, and cost $40 million in annual tax credits. A state judge struck down the Alabama Accountability Act as unconstitutional last spring. The law, called the Alabama Accountability Act, gives tax credits for parents who move their children from failing public schools to private schools. The law's reality as we posted here, is that tax credits do not benefit students in "failing" schools when they have no access to alternative non-failing public schools or private schools in their area. Thus, according to the Alabama Revenue Department, fewer than 100 students in failing schools statewide used the credits to transfer to private schools, despite there being 78 schools on the failing schools list. Read the court's recent opinion here. 

Indiana Supreme Court Finds that State Civil Rights Commission Lacked Authority to Act in Discrimination Claim Against Homeschooling Association

In a dispute the Indiana Supreme Court characterized as "an intra-group squabble over the type of meal to be served to a member family's child" at a dinner-dance social, the court found that the Indiana Civil Rights Commission lacked statutory authority to act because the complained-of behavior was not "an incident not related to education." The Fishers Adolescent Catholic Enrichment Society, Inc. (FACES) is a group of families who  associated together “to provide homeschool high schoolers with Catholic educational, spiritual, and social enrichment.” The claimant, Elizabeth Bridgewater, charged that FACES discriminated against her daughter in 2008  by resisting the family's efforts at a FACES function to arrange a special meal that would not activate the child's allergies. Bridgewater filed a complaint with the Indiana Civil Rights Commission, alleging that FACES refused her daughter a reasonable accommodation and therefore discriminated against her due to her disability. While the complaint was pending, Bridgewater  ordered a special dinner for her daughter for the event by contacting the host facility directly. The daughter attended the dinner without incident, however, she was expelled from FACES four days later. Bridgewater then filed a second complaint with the Commission. An administrative law judge found for the Bridgewaters and awarded $5,000 in damages, a finding that the Commission later adopted. On appeal, the Indiana Supreme Court found that the state's civil rights statute conditions the Commission's authority "to incidents where a person has “engaged in an unlawful discriminatory practice" and that FACES' activities were social rather than educational in nature. The court also rejected the Bridgewaters' retaliatory discrimination claims, again finding that any unlawful discriminatory practice that the Commission addresses must be related to education (under this case's facts.) The case prompted a dissent by three members of the court, who wrote that the retaliation claim was not "derivative of and thus depend[ent] upon the disposition of the discrimination claim." There was an arguable connection to education in the case, the dissent noted, as FACES conducted classes and helped the students' participation in educational activities outside of the home. Further, the dissent pointed out, the court's decision conflicted with how discrimination is defined federally, which "includes retaliation as a separate act of discrimination regardless of the outcome on the merits of the underlying complaint." The case is Fishers Adolescent Catholic Enrichment Soc'y, Inc. v. Bridgewater ex rel. Bridgewater, No. 93S02-1310-EX-704, 2015 WL 70285, at *4 (Ind. Jan. 6, 2015).

California Department of Education Prohibits Public Schools from Requiring Parents to Volunteer Service

In November, Derek posted How Charter Schools Charge for Access, a report challenging some California charter schools' requiring parents to work "service hours" to support their children's schools. The report was written by the Public Advocates, a nonprofit law firm and advocacy organization that addresses education, housing and transit equity. Recently, the Public Advocates updated us that the California Department of Education (CDE) advised charter schools and school districts on last week that the law prohibits charters from requiring parents to donate “service hours” to a public school. According to a media release, the CDE issued the new guidance less than two months after the Public Advocates report. “We are pleased by the CDE’s quick action,” said John Affeldt, Public Advocates Managing Attorney. The guidance states clearly that California law “bars a school district or school from requiring ‘volunteer hours’ as a condition [for] admission, enrollment…[or] participation in educational activities.” The guidance also clarifies that public schools may not employ cash payments or fee waivers (e.g., indigency waivers) as ways to satisfy volunteer hours requirements. Read more here.

Arizona School Board Delays Plan to Redact Abortion References from Biology Textbooks

An Arizona school district joins Texas and Ohio in facing content-based challenges to school textbooks that Derek has discussed on this blog here and here. Arizona’s Gilbert Public Schools Governing Board has announced that it will delay deciding how to redact references to abortion in several of its textbooks, including a biology textbook used in the district’s honors classes. The Board members reportedly disagree about how to comply with an Arizona law that prohibits schools from presenting any information about elective abortion “that does not give preference, encouragement and support to childbirth and adoption as preferred options” (A.R.S. 15-115). The board voted 3-2 at an Oct. 28 meeting to redact pages from its textbooks given to students that do not offer childbirth and adoption as preferred options to elective abortions. Late in November, however,  some board members challenged whether A.R.S. 15-115 requires that all abortion references be removed (including terms such as “spontaneous abortion,” an alternate term for a miscarriage), or simply those that discuss elective abortions. Gilbert’s District Superintendent Christina Kishimoto has said that schools can keep the textbooks intact and still comply with the statute by offering instruction on abortion alternatives. The school board’s decision has attracted national media interest, including a coverage by the New York Times and MSNBC’s Rachel Maddow show.

Tucson’s Ethnic Studies Curriculum Caught in the Middle of State and Federal Oversight

Two years after the Tucson Unified School District (TUSD) ended its old Mexican-American Studies (MAS) curriculum, the district continues to be pulled between Arizona politicians’ disapproval of ethnic studies classes and TUSD’s efforts to show remedial progress in the federal desegregation case brought against the district in 1974. Arizona education officials increased the pressure on TUSD this Tuesday making a surprise visit to an ethnic studies class to determine if the district is violating a state law that prohibits any class that promotes “the overthrow of the United States government,” racial resentment, and “ethnic solidarity instead of the treatment of pupils as individuals” (HB 2281). After HB 2281 was passed and the state threatened to withhold ten percent of the district's funding, TUSD closed down the MAS program in 2012. TUSD’s school board subsequently began offering ethnic studies courses after a federal court ordered the district to develop a culturally responsive curriculum as a part of its remedial action in Fisher and Mendoza v. TUSD, the federal court desegregation case.

The state officials’ compliance visit was reportedly prompted by comments that a TUSD high school principal made at the National Association of Multicultural Educators that the district was once again offering culturally responsive classes. The Arizona education department wrote TUSD in late November, asking the district to turn over all assessments, assignments, lesson plans, student work, and materials used in classes that have a “culturally relevant” focus. 

Coincidentally, the officials’ visit comes on the heels of a new study linking the MAS program to higher student achievement. The study,  Missing the (Student Achievement) Forest for All the (Political) Trees: Empiricism and the Mexican American Studies Controversy in Tucson, links the defunct MAS program with increased graduation rates and standardized-testing results for students who participated in the program from 2006 to April 2012. The study by Nolan L. Cabrera, Jeffrey F. Milem, Ozan Jaquette, and Ronald W. Marx (Arizona) is available in the American Educational Research Journal here. 

Meanwhile, Arizona seeks to intervene in the desegregation case in Fisher, arguing that the state has an interest in ensuring that TUSD’s current ethnic studies classes do not “foster resegregation along ethnic and racial lines.” A Ninth Circuit Court of Appeals panel heard Arizona’s request to intervene in Fisher this November. Counsel for the Department of Justice opposes Arizona’s intervention, arguing to the Ninth Circuit panel that “Arizona has no ‘protectable interest in this suit’” because the MAS program was ended. The video of Arizona’s oral argument before the Ninth Circuit in November is here. The Ninth Circuit is scheduled to hear oral arguments in the main case in January. 

Indiana Supreme Court Considers Arguments in Bus Fee Lawsuit

The Indiana Supreme Court heard arguments Monday in a class-action lawsuit alleging that a school corporation's decision to end free school bus transportation violated the state constitution's education clause. The state supreme court is reviewing the court of appeals' decision in Hoagland v. Franklin Twp. Cmty. Sch. Corp., holding that transportation to and from school is an integral "part of a uniform system of public education" under the Indiana Constitution. The court of appeals found that the school corporation, Franklin Township, acted unconstititionally in discontinuing its free school bus service and in contracting with a third party provider that required students to pay for transportation. The appellate court also noted that school corporations are obligated to provide free transportation for students with disabilities, homeless students, and students in foster care. The court of appeals saw no rationale to exclude any other student who needed transportation to school, even if the student was not in one of the mandatory transportation categories. The Indiana Supreme Court has held that a school corporation could not impose a student-services fee that included payment for school counselors, nurses, and security, because those services were part of a publicly-funded education. Nagy v. Evansville–Vanderburgh School Corp., 844 N.E.2d 481 (Ind. 2006). Franklin Township Community School Corporation cut its bus service after Indiana's public schools lost hundreds of millions of dollars when new property-tax caps went into effect in 2010. The Township later contracted with an educational service center to provide student transportation for an annual fee. The case set for argument is Hoagland v. Franklin Twp. Cmty. Sch. Corp., No. 49A02-1301-PL-44, 2014 WL 2580663 (Ind. Ct. App. June 10, 2014), transfer granted, opinion vacated, 2014 WL 5312934 (Ind. Oct. 16, 2014). Watch the oral argument online here.

New Mexico Court of Appeals Allows Private Schools to Use State-Funded Textbooks

On Monday, the N.M. Court of Appeals upheld the constitutionality of a law requiring the state to provide instructional materials to schools, including private ones. A group of plaintiffs sued the the N.M. Public Education Department and challenged New Mexico's Instructional Material Law that requires the state education department to buy and distribute instructional material to schools "as agents for the benefit of eligible students." NMSA 1978, §§ 22-15-1 to -14. The plaintiffs argued that the law conflicted with several articles of the New Mexico Constitution, including the state's counterpart to the Free Exercise and Establishment Clauses, articles prohibiting the state from investing in private corporations and granting the state exclusive control over education. Finding for the state education department, the Court of Appeals held that "the mere indirect or incidental benefit to the private schools" did not violate the state constitution. The court interpreted the state constitution's prohibition against public funding of "sectarian, denominational or private" schools to have intended only to maintain state control of public schools and keep public schools from becoming sectarian. In rejecting the plaintiffs' arguments based on cases from the U.S. Supreme Court and other states, the New Mexico court stated, "We believe that the legislative intent in promoting the education of all schoolchildren in New Mexico deserves greater weight than the cases cited by Plaintiffs afford." Moreover, the court noted, the books are not given to private schools, but the schools only receive possession of the books as agents for the students. Read Moses, et al., v. Skandera, Acting Sec'y of Education, No. 33,002 (N.M. App. Oct. 27, 2014) here.

Another Common Core Lawsuit, But This One Raises Unique Claims

Litigants have filed another challenge to the Common Core, this time in Missouri.  The theory there is particularly unique.  They charge that state funding of the consortium that is developing Common Core standards and assessments amounts to an "illegal interstate compact" and cedes state sovereignty over education to the consortium.  They also charge that the U.S. Department of Education has illegally funded the consortium: $360 million to Smarter Balanced and the Partnership for Assessment of Readiness for College and Careers (PARCC), which are developing the standards.  The lawsuit alleges this funding was not authorized by Congress.  

I have not investigated this latter claim, but am skeptical, given that the funds flowed through the American Recovery and Reinvestment Act, which gave the U.S. Department of Education significant discretion in awarding grants to promote education innovation.  That level of funding to Common Core developers, however, would give added support to the argument that the college and career readiness requirements in Race to the Top and No Child Left Behind Waivers were de facto requirements that states adopt the Common Core.  In other words, the Department funded a private group to develop standards and then required states to adopt standards that could be found in only one place: the place that the Department funded.

More on this argument here.

Washington State Legislature Found in Contempt in School Funding Case

Following up on Derek's post, Washington Supreme Court Turns Up Heat on State Legislature in School Funding Case, last week Washington's high court found the legislature in contempt as some predicted after oral arguments in the case. The Washington Supreme Court's ruling in McCleary, et al. v. State of Washington, comes during a tumultuous year for the legislature on school funding issues. This spring Gov. Jay Insbee blamed the legislature for Washington becoming the first state to have its NCLB waiver revoked this spring, the state supreme court ruled in January (in this case) that the state's education funding system was unconstitutional, and the state faces a $1 billion education budget shortfall. In McCleary, the court indicated it has grown tired of legislative delays in complying with the court's January order to fully fund basic education by the 2017-18 school year. The court wrote last week that it was not issuing the order simply to get the legislature's attention. Instead, "contempt is the means by which a court enforces compliance with its lawful orders when they are not followed," the court wrote. Read the court's order in McCleary, et al. v. State of Washington here.

New Hampshire Supreme Court Reinstates Tuition Tax Credit Program But Avoids Law’s Constitutionality

A unanimous New Hampshire Supreme Court rejected a challenge last week to the state’s tuition tax credit law but side-stepped the issue of its constitutionality. The state supreme court dismissed Duncan v. State of New Hampshire on standing grounds, holding that a recent amendment to the law allowing taxpayer standing was insufficient to confer standing under the state constitution. While New Hampshire’s constitution does not have a corresponding provision to the federal constitution’s Article III standing clause, the court interpreted a provision authorizing the supreme court to rule upon “upon important questions of law and upon solemn occasions” to prohibit issuing advisory opinions to private persons. The N.H. Supreme Court’s ruling reinstates a law allowing businesses to receive an 85 percent tax credit when they donate to private scholarship organizations for students who attend private school, homeschool or an out-of-district public school. A lower court ruled last year that the tax credit program unconstitutionally sent public tax dollars to private religious schools. Right now, the tax credit program is so small that it may be difficult to demonstrate harm in a future legal challenge, Bill Duncan, state Board of Education member and lead plaintiff, told NPR. The state’s first scholarship program raised $250,000 dollars for scholarships in 2013, but $50,000 this year, albeit in the shadow of the lower-court ruling. The state program would allow up to to $5.1 million in tax credits to be claimed this year. Read Duncan v. State of New Hampshire here. 

New York Releases a New Bill of Rights for Parents and Students--Not Really

New York State Department of Education just released "Parents' Bill of Rights for Data Privacy and Security."  It is based on the U.S. Department of Education's "Model Notification of Rights." In essence, it is a reiteration of the rights contained in the Family Educational Rights and Privacy Act.  The document, however, came with a certain amount of fanfare given the recent concerns over data privacy.  The reiterated rights include the right to

• inspect and review a student's records
• request corrections of inaccurate information in the records
• prevent disclosure of personal records to third parties
• refuse to let the school include a student in it directories
• file a complaint with the U.S. Department of Education for violations of the Act

At the risk of sounding grumpy, it strikes me as preposterous to use the term "Bill of Rights" in regard to this document, even though it is qualified by "Privacy."   As a basic descriptive term, bill of rights is fitting enough, but "Bill of Rights" is rarely invoked descriptively.  Most often, it is used to liken a document to the broad, fundamental rights included in the first eight amendments of the U.S. Constitution.  In that respect, it is meant to declare something monumental.  

Continue reading

Lawsuit Alleges Utah State School Board Improperly Adopted Common Core

 According to a new lawsuit filed yesterday, the Utah State School Board "violated [the] law by adopting the Common Core State Standards without substantive input from parents and educators." The lawsuit was brought by the Libertas Institute, along with six parents and teachers. The plaintiffs contend that "they were denied an opportunity to be consulted" before the standards were adopted and request that the court grant an injunction against any implementation of the Common Core.

Continue reading

Louisiana Adds Its Name to the List of Schizophrenic Litigation over Common Core and Teacher Rights

Seventeen Louisiana legislators have filed suit, alleging that Louisiana State Board of Elementary and Secondary Education's adoption of the Common Core Curriculum did not comply with the necessary process required by the state's Administrative Procedures Act.  This case is the inverse of the one dismissed last week by the Oklahoma Supreme Court.  There, the legislature had repealed the Common Core and the state board argued that the legislation violated the board's constitutional authority to supervise education.  In Louisiana, the legislature is claiming the board acted unlawfully in adopting the common core.

The Common Core, teacher assessment changes, and NCLB waivers--which prompted the first two reforms, are producing schizophrenic litigation.  Almost every week has brought new litigation,

Continue reading

North Carolina Legislature Passes School Prayer Bill

Following a number of school religious expression bills introduced in state legislatures in the last year, the North Carolina House passed a bill last week that allows public school students to pray, express religious viewpoints, pass out religious materials, and assemble "as is given to other noncurricular groups without discrimination based on the religious content of the students' expression." The N.C. House approved S.B. 370, which also provides that school employees who are viewing student religious expression "shall not be disrespectful of the student exercise of such rights and may adopt a respectful posture." The bill will have to return to the state senate for final approval, where it is expected to pass. The ACLU of North Carolina released a statement objecting to the bill's language which it says could leave school officials unclear about the rules, particularly as adopting "a respectful posture" could communicate approval of one religious view above others. In application, the legislation is certain to highlight the tension between the Establishment and the Free Speech and Exercise Clauses that currently require public school officials to show neutrality in their treatment of religion and not inhibit student expression of privately-held views as long as that expression does not infringe upon the rights of others. For an overview of the constitutional issues, read the ED's Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools here.

Tennessee Teacher Challenges State Evaluation Scheme in Federal Court

Tennessee teachers have filed a second lawsuit this year challenging the state’s use of student standardized test scores to determine teachers' retention and merit pay evaluations. Governor Bill Haslam and Commissioner of Education Kevin Huffman are named as defendants in the suit filed by Knox County teacher Mark Taylor, an eighth grade science teacher who said that he was unfairly denied a bonus after his teacher effectiveness score was based on the standardized test scores of only 22 of his 142 students. In 1992, Tennessee’s General Assembly passed the Education Improvement Act to establish “a statistical system for educational outcome assessment that uses measures of student learning to enable the estimation of teacher, school and school district statistical distributions,” called the Tennessee Value Added Assessment System (TVAAS). TVAAS estimates measure the impact that teachers, schools and school districts have on the educational progress of students based on state standardized tests results in grades 3 through 8. Because Tennessee sought Race to the Top federal funds that require local districts to measure teacher effectiveness on student standardized test scores, the TVAAS is heavily weighted in teachers’ overall effectiveness score for hiring, retention, and incentive decisions. 

For the plaintiff Taylor, who teaches four upper-level physical science courses and one regular eighth grade science class, only the standardized scores of his general science class counted in his TVAAS estimate. The student scores in his higher-performing upper-level classes, measured by local tests, were not included in his evaluation. Taylor was denied a bonus under the teacher evaluation program even though he says the observation component of his evaluation showed that he was exceeding expectations. Taylor argues that the state violated his 14th Amendment right to equal protection from “irrational state-imposed classifications” by using a small fraction of his students to determine his overall effectiveness. Last month, Knox County teacher Lisa Trout challenged the TVAAS evaluation system after she was denied a bonus. Trout alleged that she was misled about how her TVAAS estimate would be calculated. The Tennessee case is Taylor v. Haslam, No. 3:14CV00113, 2014 WL 1087776 (E.D.Tenn., filed March 19, 2014). Read more at the Tennessee Education Association here.

Minnesota Legislature Considers Requiring More Accountability for Charter Schools

Charter schools were envisioned as small-scale laboratories to test innovative educational programs and to reach struggling students who could thrive with more individualized attention. Minnesota is now deciding how to deal with those charter programs that are chronically underperforming. The state legislature seems to be doing the sensible thing this week by considering legislation to require an evaluation process for the state’s lowest-performing charter schools. The proposed evaluation system could prevent charter operators with underperforming schools from opening new schools. The current proposal may make it easier to shut down 17 of the state's chronically underperforming charters. (Charters that that have a high number English language learners or special education students would be exempt.) Minnesota Public News Radio reports that the head of a 2013 study by the University of Minnesota’s Institute on Metropolitan Opportunity says that that 25-30% of the state’s 150 charter schools are “just really terrible…considerably worse than the public schools.”