Texas: Legal to Force Students to Wear RFID Chip at School

A district court judge in San Antonio upheld the expulsion of a student at a magnet school for refusing to wear a RFID chip (radio frequency identification: the technology that allows for geographic tracking at all times, like the thing you can have implanted in your dog). Not surprisingly, the ACLU jumped into the case on the part of the student, arguing that this violated the students privacy and is an unacceptable step toward a surveillance society. 

The school argued that this is all harmless and that the chips were only used to locate students that are not in the classroom, but still in the school building (they said it cannot work outside the school building and would not be given to third parties). The district was convinced they were losing over a million dollars a year in state revenue because students were in hallways and not in classrooms. Further, as a magnet program, the student can return to their home school if she did not like the policy. 

A lively discussion already developed on twitter, but let's continue the conversation (with longer arguments) in the comments. I will put my thoughts in the comments also. 

So, pick a side. Are you okay with this policy and this ruling? 

H/T: This came from Jon Becker's twitter feed with the hashtag #SchoolLawWTF attached. Appropriate. 

Ed. Law Blog Highlight: Education Law Insights

Here is another option for you consumers of education law blogs: Education Law Insights. It is written by Jackie Wernz and Brian Crowley of Franczek Radelet, a firm based in and serving clients throughout Illinois. 

You can also follow along with Jackie's twitter feed at @EdLawInsights

They have been blogging for a few months now and are producing some really informative posts, relevant to those beyond Illinois as well. It is certainly worth adding to your RSS reader. 

Thanks for putting out this information and keep up the great work! 

National Education Finance Conference Deadline

The National Education Finance Conference has just extended their deadline for session proposals until January 31.

I went to this conference two years ago and it was quite enjoyable and the topics were extremely relevant to scholars studying anything impacted by education finance. It is in Indy so it should be driveable for many folks. 

I Wasn’t Trained For This…

I have enjoyed perusing the various Edjurist blogs and, for that reason, I am slightly awed by my affiliation with such a prestigious group of legal scholars. However, I will do my best to add to the various micro and macro discussions on school law topics. 

I strive to keep channels of communication open between former students and myself, especially as they enter into formal leadership positions, since this conduit proves a valuable gauge of current legal issues. One student, currently in his first year as an administration – he was hired as a middle school principal, had questions surrounding his work with a struggling teacher. At the end of our conversation he mentioned, almost in passing, that he appreciated all that he learned in school law but nothing done in that course prepared him for the myriad of issues he has faced in the first few months as principal in the arena of family law.

I asked him to document these experiences and here is a brief synopsis of some of the challenges this first year principal has faced:

• There is a pending divorce between the parents of one student. The student is struggling with attendance issues, to the point that a judge has ordered her to return to school. Mother claims daughter is afraid of father and both parents request notification of any absences or early releases for the daughter.
• A student’s mother died a number of years ago in a car accident. Since that time the student has lived with his maternal grandparents. His biological father was completely absent so the custodians of this minor were only able to obtain temporary legal rights related to his care. The biological father has recently returned to the area. There is a pending custodial hearing, but the biological father took the student into his custody and transferred him to a different school.
• Two siblings are caught in the middle of grandparents fighting for custodial rights since the parents recently died. The attendance secretary is asked to testify in a custody hearing about the attendance patterns of the students when they stay with each set of grandparents.
• A mother and a stepmother, both of who have legal access to the educational information related to a student, have restraining orders against one another. The restraining orders dictate that the two are not to know the home address of the other person and, yet, the student lives with one of the two ladies.

I do not address family law issues directly when teaching school law, but perhaps I need to do so. However, at what expense? There is only so much time in a semester and school law is littered with essential topics. This conundrum is at the heart of Levine’s 2005 scathing commentary on the declining quality of educational leadership programs – do those engaged in preparing educational leaders structure programs that are financially viable (reduce the number of credits required for graduation and consolidate curricula) or create comprehensive educational experiences that genuinely empower graduates to become educational leaders? The answer for too many educational leadership programs is more along the lines of the former option.

I could justify my efforts in school law by stressing that a graduate of an educational leadership program qualifies for a principal license, which signifies nothing more than an entry-level skillset (Adams & Copland, 2007, p. 160). Clearly, the process of developing effective school leaders must be continued by school districts in the form of induction and mentoring programs. Perhaps the family law issues enumerated above are of a unique nature that any principal would seek direction from central office personnel. And yet, I am left wondering and I will definitely revisit the importance of family law issues the next time I teach school law.

The Consequences of Overpaying University Presidents

Law professors Brian Galle and David Walker have just posted to SSRN (free download) a new article identifying a negative association between non-profit executive pay and donor generosity.  That is, according to their study, as we continue to increase the pay of university presidents, we should expect private gifts to the same universities to decline.  I am familiar at least with Brian's prior work, and his scholarship is top-notch, so I am inclined to take this study seriously, as Boards of Trustees should.  Check it out here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2187979 . 

Michigan is a Right to Work State - Updated

The Michigan House and Senate both passed versions of three bills that would transform Michigan into a right to work state.  The bills, which will be called the Workplace Fairness and Equity Act, prohibit the practice of requiring workers to pay union dues or fees as a condition of employment.  Police and firefighters are not affected by this legislation because their right to collectively bargain is protected by a different law.  The bills were passed primarily along party lines in the Repulican-led chambers.  Interestingly, protestors were prohibited from entering the capitol for several hours during the debate.  Apparently, the building was closed for structural reasons but was re-opened after an injunction was issued.

The legislation makes it illegal for any person to force, intimidate or attempt to compel an employee to become or remain a member of a labor organization or to financially support one.  It eliminates the law's previous requirements that all employes must pay a service fee to the exclusive barganing representative even if they chose not to be active members of the union.  It does retain the right for employees to collectively bargain and prevents employers from interfering with employees' rights to form and administer labor organizations.

This vote comes on the heels of the defeat of a Novemeber ballot proposal to add the right to collectively bargain in Michigan's Constitution.  Michigan's governor has been quoted as saying that the push for this legislation is a direct result of organized labor's ballot proposal initiative, Proposal 2, last month, and that he is ready to sign this new legislation.  The House still needs to consider the public right to work bill and will do so on Tuesday.  Michigan's labor organizations are planning protests to stop its passage and put pressure on the governor to veto the legislation.

The legislation:

For Private Workers - HB 4054 & SB 0116

For Public Workers - HB 4003 (Senate Substitute 8)

http://www.legislature.mi.gov/(S(ib4eik45ssqu0z45ez4rbnyh))/documents/2011-2012/billcurrentversion/House/PDF/2011-HCVBS-4003-17053.PDF

Update (December 11, 2012) - The Michigan House of Representatives passed HB 4003 and Governor Rick Snyder signed the bills into law making Michigan a Right to Work State.  The changes take effect in April 2013.

Local Control in 2012- Myth or Reality?

Some time ago, I blogged on the extraordinary moment when the board of the Memphis City Schools – a 100,000 student urban district serving a high poverty student population – voted to dissolve itself.  This dissolution, which was later ratified in a local referendum, triggered a merger of MCS with the surrounding suburban district, Shelby County Schools (40,000 students, approximately 35% free/reduced lunch).  With less than a year to go before the merger takes effect, I write now with a brief update, some new details, and the promise for more on this turn of events (which I could truly appreciate as being fascinating from a scholarly standpoint if only it didn’t mean so much to my community!).

First, the update… the dissolution of MCS led to a legal black hole as to what the next step would be.  That hole was filled by new legislation and a federal lawsuit that included nearly every governmental body in Shelby County.  Ultimately, what emerged was (1) a 21-person appointed transition team charged with crafting a merger plan; (2) a 23-person elected countywide school board that combined the 2 preexisting boards and added 7 new members; and (3) a timeline that involved separate operation of the districts for 2 years with a merger to take effect in August 2013.  To date, the merger plan has been completed and implementation has begun. 

However, as though this challenge were not enough, a parallel effort by suburban municipalities to create separate school districts triggered its own legislation and litigation.  The most recent news was a ruling last week holding the legislation permitting such efforts to be in violation of the Tennessee constitution’s ban on “special legislation” targeting a single county (i.e., not generally applicable throughout the state).  Had the municipal districts survived this challenge, an equal protection claim was slated for trial in early 2013.

To me, the debate about municipal districts evidenced a disconnect between the perception and the reality of local control in contemporary public education.  Clearly, there was substantial enthusiasm for local control within the municipalities – all six suburbs voted overwhelmingly to both create new districts and raise local (sales) taxes to do so.  (as an aside, it is worth noting that the county is already the primary local funder in Tennessee, so even prior to the merger, the districts shared the countywide tax base- they will continue to do so into the future and would have even had municipal districts come to be)  This enthusiasm was based on the perception that local control was, as Chief Justice Burger might say, “essential to …support for public schools and to quality of the educational process.” (Milliken)

However, does that perception match the role of local school districts in 2012?  Maybe it does on public support, but do local districts still have enough say to impact the educational process?  With charter schools and state takeover districts and vouchers and even semi-autonomous magnets growing in the landscape?  With common core standards and state-mandated tests and Race to the Top incentives guiding curricular and policy decisions?  This is not a question about whether local control should or shouldn’t exist, but about whether it actually does.

Aside from this wrinkle to the merger story here in Memphis, there are some very interesting proposals that could prove useful to districts across the nation, particularly urban districts adjusting to situations where school operation is being decentralized among autonomous operators.  More to come on that another day.

The Right to Education in South Africa

I had the privilege of being able to travel to South Africa this summer to present a paper at a conference examining education under the South African Constitution, a constitution less than 20 years old at the moment.  To illustrate the "youth" of the constitution: while there, I had the opportunity to meet and dialogue with one of the "Framers," Justice Albie Sachs.  It was surreal to be able to do so after studying American constitutional law for a number of years. 

I will discuss a few features of the South African Constitution's approach to education in some upcoming posts, but I thought I would begin with the most basic difference between education as a constitutional matter in South Africa and education as a constitutional matter in the United States: education in South Africa is an explicit, individual constitutional right.  Section 29 of the South African Constitution's Bill of Rights declares that "Everyone has the right--to a basic education, including adult basic education; and to further education, which the state, through reasonable measures, must make progressively available and accessible."  The United States Constitution contains no language even hinting at such a right, and the American state constitutions--from which the voluminous case law on school finance and ostensible "education rights" emanates--are also devoid of such language (with the notable exception of the North Carolina Consitution). 

Yet, there are growing calls for the South African Constitutional Court to look to American school finance litigation in interpreting the education rights found in that country's constitution. My most recent article argues that the approach should be more nuanced, recognizing that (1) American school finance cases have never really enforced anything like an individual right to education, despite a good deal of rhetoric to the contrary; (2) the South African Constiution's "basic" education right is clearly an immediate, individual entitlement, and should be enforced as such, even through individually tailored remedies; and (3) the South African Constitution's "further" education right is much more legislative duty than individual right, and it therefore can be enforced similarly to the education clauses in American state constitutions. 

That said, my view is that American state supreme courts have been going about enforcing their own education clauses in precisely the wrong way, ignoring the fiduciary nature of the legislature's duty to provide for education.  Thus, I urge that the courts in both countries step back from their rights-based rhetoric and consider what it means to enforce a duty that does not correlate to the personal claim-right of any individual.  Check it out here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2142221 .

Back in Black (and Orange)

I have been off the blogging field for several months now while traveling to South Africa, and then working as a visiting professor at Mercer University School of Law (school colors: orange and black).  I am happy to be back now, particularly at this exciting time for the blog in light of our new partnership with ELA.  In the coming weeks, I have many thoughts to share comparing the legal frameworks under which academic employees and students do their work in different countries, and in different sorts of institutions within this country. 

To start, I want to engage a premise that I heard repeated more than a few times at the recent ELA annual conference.  The premise is that the United States "needs" for-profit higher educational institutions in order to fulfill the policy goals we have adopted as a nation.  These policy goals vary depending on who states the foregoing premise, but they seem to boil down most often to getting as many people through college and out the other side as possible, and presumably doing so for as little money as possible.

My question is, am I accurately stating the premise that I heard stated at ELA?  I have to confess that this premise seems to me to be implausible on its face, given the well-recognized tendency of for-profit higher educational institutions to provide less service (measured in terms of completion rates, employment outcomes, and student loan default rates) for greater cost than public and non-profit private institutions.  Am I missing something?  Should we be enabling this sector of the higher education world? If so, why? 

Announcing Our New Partnership with the Education Law Association

I am very pleased to announce that beginning on January 1 of next year, the Edjurist is going to be a formal partner of the Education Law Association. We at the Edjurist are going to use this as an opportunity to relaunch our blogging efforts, so look for several changes to the platform in the next month or two. 

As part of the relaunch, we will be looking to add some new voices to the blog. If you are interested in being an active contributor to this space, please let me know. 

Let me just take this opportunity to say that this partnership is the culmination more than a year's worth of discussion about online, open access efforts at ELA. This blog will be one of the primary outlets for that type of information. I am very pleased to see ELA moving in this direction. 

But, also, this partnership is the culmination of nearly a decades worth of blogging. I started blogging when in law school, around 2004, I was told of blogs and immediately looked to subscribe to the education law blog. There was no education law blog. So, I started one. Since then, I have kept this effort going just as a side project. Through the years, several other education law blogs developed, which I was happy to see. However, I always thought a partnership between the Edjurist and ELA was a great opportunity to benefit both organizations, both in bringing ELA into the digital age, but also in making this little side project started nearly a decade ago into a formal partner of the premier education law organization in the world. So, I cannot say how proud I am to finally see my little project reach this point and to work together with ELA and its members to continue bringing great education law information to educators throughout the world. 

Openness is Really Important for Education Law

Clay Shirky has a new TED talk out on how the Internet might influence the structure of democracy, making it much more open source. Worth watching and thinking about school law. 

Now, your average school leader or education lawyer is not going to jump into open source coding using some unknown programming language ... but they can absolutely start open source coding. 

Consider this: What if you put out your school policy in a open, editable Google Doc.? Currently we write school policy in Word. What if we did that in Google Docs? Subtle change, enormous difference. 

First, this solves several problems that schools have. 

1. Not everyone has Word on their home computers and struggle to open the Word files. 
2. Tablet computers also struggle with Microsoft Office, so another plus. 
3. You can hyperlink, embed videos, and more. Referencing a state policy on an issue, just link to it. Really want to put an explanatory footnote on a policy, embed an instructional video. 
4. Multiple people can work on the document at once and no more passing around dozens of versions by email attachment. 
5. The public always has the latest version of school policy. No more out-of-date links on school website (which is actually a pretty big problem), just link to the Google Doc (editable or not). 

And that is just solving the easy problems, let alone the much more important issue of people actually caring or knowing these things exist. Taking an open approach to school policy not only would engage teachers, students, and the community ... it will probably improve the policies (because right now, most of them are not very good)! 

Whether or not you like that idea (and most school attorneys will not), we need to be moving toward opening our education law rather than seeking to further close it off in more and more committees and documents that no one ever even knows exists. Our schools are for our communities (they pay the bill). If we can leverage technology to give it back to them, we should. 

Political Donations on State Owned Devices

As the political season heats up, now is a good time to remind folks that making political donations on school or university owned devices is a bad idea ... for what I hope are obvious reasons (remember who paid for that computer). Even though I think this is obvious, I'm doubting that too many public employees will consider it before they enter their credit card info.  

As Sherman Dorn notes on Twitter, it is probably a good idea to make such donations on your phones (less likely to be state owned). My wife even adds that apparently you can now even make donations by texting to some political campaigns.

(oddly, making a donation to a super-pac might be more palatable ... but then public employees don't have that kind of money). 

Anyway, please exercise your right to make your financial voices heard ... just not on a device you didn't pay for yourself.   

Just Don't Ban It (Again)

So, schools adopting social media policies is becoming very fashionable these days (ridiculously so, and lots of smart folks can tell you why, but whatever). New York City Schools is the latest to apparently be considering it. 

Here's the thing. I do not care all that much legally what you put in that policy, with one exception ... just don't ban anything. You cannot ban Facebook. You cannot ban Twitter. You cannot ban teachers from talking to kids outside of school. If the First Amendment says anything, it is that you can share your ideas without governmental interference when they have no legitimate reason to regulate. That a person is a teacher is not a legitimate reason to regulate all their speech, all the time. It isn't. Trust me. 

To show you, let's get conservative just because that is how our current Court leans. Let's say a school board wanted to ban a teacher from religious speech (participating in this prayer social website, for instance). Would that fly with the current court? No freaking way. None. Facebook is not different. Why? Well, look at this site - the Hawaii Catholic Youth and Adult Ministry Facebook Group. Can we ban teachers from talking to students on that site? No, we can't. They have both an expression and free exercise right to do so. Thus, we cannot ban Facebook. We also cannot ban teachers from talking to students on Facebook. Bans do not work in this space. There is just far, far too much constitutional history on the other side of that argument and way, way too many different scenarios that would be banned all in one fell swoop. 

Now, you can choose to block these things on your school Internet, that's fine. You can encourage responsibility. You can institute discipline measures for disruptions. You can, well ... be creative. But, banning teachers from using social media in anyway is a step to far, constitutionally speaking. 

New Education Law Text Takes a Different Approach

It is not often I review textbooks on the blog. In fact, I am not sure I ever have before. Mostly that is just because I am so firmly entrenched with this one, as it was the one I learned with and even helped a bit on an edition or two ago. Now, I use that one for my principal classes, but do not use a textbook for my teacher leader or undergraduate classes.  

But, recently I was made aware of a new textbook on education law that takes a different approach to publishing, namely, no publisher. John Dayton's new book, Education Law: Principles, Policy & Practice, has taken a self-publishing approach. It is a very comprehensive (480 pages) look at education law. It is also not a casebook, meaning John actually wrote all of the text. There is also a Kindle version coming soon. I have just briefly scanned the book and find it to be very well constructed and particularly strong on constitutional issues. It was clearly a labor of love and I recommend you at least give it a look on Amazon. To those folks teaching law out there, I'm sure if you contacted John he could get you part of the book to review even.

What is really interesting to me about the book, though, is that it signals a new potential path for publishing that changes the game. How, you ask?

(1) First, this type of publishing keeps costs much lower. So much of the price of a textbook is wrapped up in the publisher's overhead costs and not in the actual printing of the book. Pearson, all of those teaching in universities know, has an enormous staff. I have a personal Pearson representative that stops in my office about every three months. That is a salary John Dayton does not have to pay, nor does Amazon, nor does the start-up partner CreateSpace, and most importantly nor do any customers. In essence, all the cost of this book entails is the compensation for the time John spent writing it, the very small amount he paid CreateSpace to help with the process, and the cut Amazon takes. The author, usually the professor, is not in this for the money. There is some money, don't get me wrong, but ask your standard textbook author whether they care about the royalties and I bet they do not. There are so many other, and better, reasons to do it anyway (although I'm not sure vita-boost counts as better). Nevertheless, very few professors are motivated by the royalty money. Bottom line? 

Most popular text in education law: $172.30
Second most popular and one I favor: $110.99
This new textbook: $35.99 

Ask your students out there which one they favor. 

(2) Copyright. As an author, when you work with a standard publisher you lose the copyright to your work. The publisher holds and controls the rights to the future use of the book. This is a bad thing for everyone but the publisher. When a book runs initially, I do not mind the publisher recouping their costs even with a little extra added on for profit. What I do mind is the publisher keeping the rights of that book under lock and key long after their investment as been paid off and the book is marketable. Standard copyright these days is around 100 years. Thus, any traditional book (or journal article for that matter) is useful only while marketable and only to those capable and willing to pay the price (see #1, above).

Take away this traditional copyright game, however, and a whole new world opens up. An author has so many more options both in the near term and in the long term. The author can share the book with whomever he/she pleases. Can choose to use it in their own classes free of charge. Can partner with professional organizations to make snippets public. Can create websites that do so many different things. Can put the text out in ePUB, so it is digital and interactive. Can update the text whenever. And on and on. The long-term, though, is even more interesting to me. Once an author recoups the initial costs, why not release the text to the public with a Creative Commons license? Let the world share and remix and build from the text? Why not? So many awesome possibilities ... that are not behind a 100 year firewall.  

(3) Flexibility - When I write my textbook, I am going to put YouTube videos in it. No, not as some add on CD or some outside website with a crappy URL ... I mean seriously right in the text, sometimes in place of the text, right there seamlessly in the book. Why try to describe Savana Redding's case when she can describe it for herself? Seriously? When the few (and believe me, still few) publishers that have solicited me to write for them hear this, their eyes get really big and they cock their head a bit in confusion and look for an exit. But, I am serious. Traditional publishers ... are traditional. Print offers very little flexibility. Black, white, 8 1/2 x 11 ... that's about it. Digital text is different.

Ultimately, why I wanted to write this post is just to let you know it is okay to think differently about publishing. To have different expectations of authors, publishers, booksellers, and consumers. The inertia in the traditional publishing model is deep and long-lasting. We are going to be printing books in publishing houses for a great while longer. But, it is not the only model now. In niche fields like ours, it may not even be the best model. Certainly this book is a test case and we shall see in a few years the results. But, whether or not this effort is successful, it will not be the last effort (yes, that is a personal promise). Information is different now and it needs to be treated differently. This was one bold step forward along that path.

Bravo, Professor Dayton. Thank you for being a leader.    

Coaches Thanking God for Victories

It is one of my favorite times of year. My vita has SIU, IU and UK featured prominently ... all good basketball schools (at least SIU was). Anyway, it has been awesome enjoying March at these places. 

After their win v. VCU, Coach Tom Crean of IU was interviewed by CBS. The first thing he mentioned in the interview was,

“We pray before every game, and one of the biggest things is God gives us the tools and the courage but it is our responsibility  to do the work.”

Struck me as a bit odd, but certainly not out of the ordinary. In fact, I eagerly googled his comments for this post thinking there would be some debate, but found no controversy at all. It is so normal we do not even notice anymore, I think. 

But, here is IU's representative, who gets paid a lot, on the biggest stage starting with "We pray before every game." Are we okay with this? Indiana University (an awesome school, might I add) is public and has 40,000 students, a fair number of which I'm guessing are not that into prayer toward this particular "God." Heck, I'm an alumnus and I'm not sure I'm totally okay with it. 

From a legal perspective, I certainly do not like this. I know it would be a difficult situation to challenge, but if challenged, I would worry about the Establishment Clause implications. And, it is very hard to make a Free Exercise claim on the other side of this. 

So, thoughts? Is this worth trying to tamp down? 

*P.S. - And, don't even go there. No, I am not doing this because UK plays IU this week and they beat us once already this year. Crean was just the one I happened to catch (because I was watching the game as an IU fan). 

Is YouTube Cleaning Up Our Classrooms?

It might have in Nashville - where this teacher was dismissed after students caught him raging in the classroom on video. Students catching teachers doing [insert bad thing here] on YouTube happens all the time. Just go to YouTube and search. I think you will be surprised.

But, harder question, is this good for our classrooms? Openness is generally a good thing, so hard to find much fault in it, understandably. But, sometimes the actions that are needed for students are actions that do not come off well in video. I'll remind you that corporeal punishment is still legal in a large number of states. That is not going to come off well on video even though legislatures still consider it an appropriate disciplinary tool.

The classroom in Nashville was clearly out of control and students were not showing the proper deference to the teacher. Now, a good teacher would not let it get to that point and would have better ideas for resolving that situation than flipping over desks. But, to think all of our teachers are going to know what to do when presented with that situation is naive. There are over 3 million teachers in the U.S. ... but there are certainly over 3 million smart phones in the classroom right now. Thus, there is a high potential that each teacher might be recorded at some point ... that point being their lowest more often than not. Thus, teachers are much less likely to reach those low points. Is that good? Probably, but let's also acknowledge that lowpoints are not necessarily bad points in a teacher's career. A low point can be a great learning experience for both the teacher and the students if handled properly. Specifically, those low points can frequently show students just where the boundaries of that classroom lie and, sometimes, students will at least respect that point. 

As you can see, I'm not real sure of my thoughts on this one, so I'd be happy to hear yours. 

The Case of High Heels and the First Amendment

Well, I have already written a few pages as a result of this story ... so wanted to pass it along (video is not embedding well, so click link to see the story). 

Thoughts? 

Just to kick it off ... I'm okay with the regulation in this case. I'll say more after people lambast me for that position. 

Whatever you think about this case, it is a wonderful teaching tool and I hope some of you use this scenario in your classes. 

H/T to @jonbecker for bringing it to my attention.

Stop Strip Searching. Stop it.

School administrators - stop strip searching. Stop. Don't do it again. 

Sch. Law Profs - stop telling your students they can strip search. I don't care what narrow legal exception exists, there is so little to be gained outside of an immediate threat (i.e. a gun). 

It is stupid and unnecessary and nearly always ends poorly (and with lawsuits). 

Here is the latest: 

P.S. - Isn't it a bit ironic that the person fired in this case for doing the search was named Redding? Poetic, a bit, isn't it. 

Washington's School Finance Decision

Last month, the Washington Supreme Court issued its decision in McCleary v. State, --- P.3d ----, 2012 WL 19676, Case No. 84362-7 (Wash. 2012), the culmination of three decades of litigation, legislation, and more litigation over the state’s school funding system.  The Court struck down the state financing system, but stepped back from ordering the state legislature to take any specific legislative action to fix the system.  The Court exercised such restraint for two reasons.  First, like other courts in similar situations, the Washington Court recognized the troubling separation of powers implications of a direct, injunctive remedial order against the legislature to enact legislation.  Second, the Court considered 2009 legislation that had been passed since the suit began and held that, if fully funded, the system laid out by this legislation would pass constitutional muster.  The Court retained jurisdiction over the case, apparently to see that the legislation in question would be fully funded in the coming years. 

I have said before in my scholarship that Washington’s Supreme Court is one of the more interesting in the country in the area of school finance because, rather than issuing under-theorized accounts of rights to education as other state courts have, Washington’s Court, in its initial school finance decision (Seattle School District No. 1 v. State, 90 Wash. 2d 476, 585 P.2d 71 (Wash. 1978)), carefully derived from the education duty provision in its state constitution a correlative individual right to an education held by each Washington resident child.  In McCleary, the Court reaffirmed this holding from Seattle and used it as the justification for stringent judicial review of the legislature’s past actions, particularly its actions in cutting expenditures on certain budgetary items and forcing these expenditures to be funded through less-reliable local sources.  A few general principles emerge from the decision:

First, the Court developed a way to review budgetary cuts for their rationality that is, I think, either new or newly explicit among school finance cases.  The Court explained that, where the legislature cuts part of the education budget, it may not justify such a cut based on lack of funds availability alone (clearly a garden-variety rational basis that would justify cuts to any other budget item).  Rather, the legislature must justify all cuts to the education budget with education-related reasons, in effect adopting some of Helen Hershkoff’s earlier proposed metrics for constitutional review of affirmative rights.  The upshot of this innovation is that something more than a rational basis is required.  The required standard seems to be more of a “rational direction” test—Is the cut or expenditure decision rationally directed at the constitutionally prescribed goal (“ample support” for education, in Washington’s case)? 

Second, the Court reversed the lower court’s order that the legislature commission a study of the true cost of providing an adequate education, a familiar, almost pro forma remedy that every school finance plaintiff group seeks these days.  In my view, this was a very sound reversal.  The legislature, in the preceding years, had commissioned several such studies, each at a cost of over 1 million dollars.  The problem was not the state’s failure to determine what a “basic education” costs, but the failure to fund it fully once determined. 

Third, the Court's decision revealed that evidence of inequality is far more important to judges in adequacy cases than evidence of the overall quality of the system, especially in the form of test scores and other outputs (echoing portions of recent work by James Ryan).  Although the Court defined the basic content of a sufficient education by referencing the state content standards, the chief problem the Court saw with the legislature's existing program was that localities were required (with varying levels of effort based on local property wealth) to fund large portions of the achievement of the stated standards.  That's an equity analysis, not an adequacy analysis. 

These are what I view to be the positive developments in the case, but there were also a couple of negative—or at least disappointing—trends that generally exist in the school finance cases that were adopted and continued in this case.  First, the Court engaged and adopted its prior holding that the education duty set forth in the state constitution is a duty that falls equally on all branches of state government.  Courts around the country have seized on non-specific language in their education articles to justify judicial review of legislative policy priority weighing by holding similarly.  Simply put, if the duty rests on all three branches, then no branch deserves any deference, especially not total deference.  But this makes absolutely no sense in practice.  A duty, to be meaningful, must be enforceable.  Given that principle, what if some group of residents is unsatisfied with the Court’s resolution of this matter?  Since the duty rests equally on the Court’s shoulders, may that group now sue the Court for violating the duty?  Will the Court be the ultimate judge in this case?  I think it is preferable for courts to justify judicial reveiw without confusing the governmental actor that bears the burden of an affirmative constitutional duty. 

Second, although the Washington Court did an admirable job in Seattle of using the scholarship of Wesley Newcomb Hohfeld to derive a defensible conception of an individual positive right to education from the affirmative duty set forth in the state constitution, it approached the McCreary case without any regard to individual harm whatsoever.  In short, individual rights were meaningless—other than rhetorically—in the decision process.  I continue to believe that recognizing individual rights, but failing to consider individual harms and individual remedies, does violence to the idea of rights in general. 

There’s lots more to say about this important decision, but these are my first impressions.  I welcome comments, corrections, addenda, etc. 

Wonderful NOVA Documentary on the Dover Intelligent Design Trial

I have used this in my church/state teaching now for years, but this is the first time I saw the entire 2 hour special in a single YouTube video (YouTube recently changed its rule to allow uploading of content over 15 min. in duration). I use the very first part, the teaser trailer, to set up a vivid church/state & instructional issues discussion that always goes well.