My Concern for the Future of Public Education

I love public education. I am honored to have worked as a teacher and an administrator in public schools for 15 years in two different states. I am an unabashed proponent of public education and I genuinely believe that public education provides most (I wish I could write all) students with the opportunity to reach their potential.

It is with that backdrop that I wish to recount the following experience I had a couple of weeks ago in a course I teach to aspiring educational leaders. The curriculum of the course provides students the opportunity to explore external influences on the governance of public education and one of the assignments requires students to work in small groups to develop a mutually beneficial partnership between a school and an outside agency. One of the partnership proposals called for a union between an elementary school and a series of museums within a particular town. The net result of this partnership would produce greater exposure for the local museums and provide the students with the opportunity to study, in depth, various historical figures. The students would even dress up as the historical figures and create a living museum experience one evening (much like the movie Night at the Museum).

As a former US history teacher, I loved this idea. In fact, I have actually seen the school that my own children attend do this very activity and I have witnessed, first hand, the benefits it had on them. My children will never forget about Temple Grandin and Walt Disney because they got to be these historical characters for a night. So, I was genuinely surprised when, at the end of the presentation on this innovative idea to help history come alive for elementary students, the first two questions that other students asked were:

How many standards will be covered in this activity?

You are going to dedicate four months to this activity and you will only be able to cover how many standards?

I was shocked by these questions and I left this class genuinely concerned for the future of public education. Since this is a legal blog, I will now attempt to articulate my concerns and link those concerns to existing statutes. Why am I concerned for public education? My fear is that accountability and assessment, both essential components of public education, have succeeded in limiting the scope of creativity within educators. I have the privilege to work with an amazing group of aspiring educators each year – literally the best of the best. And, yet, these questions were asked by students in one of the more impressive cohorts I have ever worked with to date. Why? Are these students opposed to creative ideas? No. Instead, they have worked in a system of education that has become too focused on checklist or quantifiable items (how many teacher are highly qualified or how many standards will be addressed by a particular lesson) and have, possibly, lost sight of sound educational practices.

I am not advocating for a return to a time when teachers taught whatever they felt like with no regard to standards. Instead, I am trying to raise a voice of caution against statutes, such as No Child Left Behind, that rely exclusively on measureable outcomes. My fear is that an overreliance on measureable outcomes leads to different forms of corruption, including what I witnessed in my class. These amazing educators in my class do not care more about standards than authentic learning experiences for all children. Rather, they are a part of a system that has become too focused on measurements and, as a result, the system is beginning to lose sight of the ultimate goal – to help a child discover the joy of learning. In addition, those within the system are personifying the values of the system – that is what I think I witnessed.

Standards, accountability, and assessment all have a vital role in public education, but an “advanced” or “proficient” score on a standardized test is not the end goal for public education.

School Boards, Political Agendas, and Student Resistance

School boards, historically, have been, for the most part, a necessary democratic entity charged with representing the public’s interest related to the governance of public education and rubber-stamping a majority of the decisions made by professional educators. It seems the importance of the local school board has increased in certain political circles. As a result, the overall make-up of school boards has changed in a number of school districts throughout Colorado.

 One local school board to experience a change in its make-up after the November 2013 elections was the Jefferson County School Board (JeffCo). The Denver Post reported on September 25, 2014 that a majority of the JeffCo Board was elected after running as a slate of conservative, reform-minded candidates. On September 18, 2014 the JeffCo School Board tabled a vote on the formation of a proposed curriculum committee. The proposed committee would be responsible for reviewing curricular choices for conformity to JeffCo academic standards, accuracy, and omissions. Also, the 9-person committee, whose members would be appointed by the school board, would ensure curricular information was presented accurately and objectively. Specifically, the proposal favors instructional materials that “promote citizenship, patriotism, essential and benefits of the free enterprise system, respect for authority and respect for individual rights.” In addition, instructional materials could not “encourage or condone civil disorder, social strife or disregard of the law.”

Those concerned by the formation of the curriculum committee claim that its sole purpose is to bar the revised US History advanced placement (AP) curriculum from being implemented in JeffCo schools. As possible evidence that partisan politics are exerting a greater influence in public education, the Republican Nation Committee issued a statement last month calling for delays in the implementation of the new US History AP curriculum because it was viewed as revisionist history that stressed negative aspects of US history.

At the board meeting when a vote on the curriculum committee was table, the JeffCo School Board was accused of censorship and shifting the focus of instruction from teaching students how to think to teaching them what to think. In response to the concerns articulated at the meeting last week, one of the conservative JeffCo Board members has suggested adjusting the wording related to the curriculum committee that would make its charge less directive.

What I have found most interesting about this situation is that students from at least 13 of the school district’s 19 high schools have walked out of classes each day starting on September 19, 2014 in protest against the proposed curriculum committee. And, these student activists are considering an organized walkout during the October 1 student count school day. There has been a lot of political posturing from both sides of issue concerning the student walkouts and rallies, but it appears the student actions are producing the desired results. The JeffCo School Board is experiencing pressure nationally and within the state and it remains to be seen if the board will stay the course.

Taking a step back from the current events unfolding in JeffCo, I am fascinated by the impact student walkouts can have on school boards. As stated above, a number of school districts in Colorado have recently, or in the last five years, experienced a shift in the make-up of their school board members due to the election of individuals with specific political agendas. Some of these political agendas have disrupted the governance process within school districts and, unfortunately, taken resources away from educating children. What recourse do people have when they elect an individual to a school board who is failing to appropriately represent them? In Colorado the answer to that question is, “no much.”

School boards may censure one of its members if deemed necessary, but a censure amounts to little more than a statement being posted in each school within the school district. There is also the option of a recall, but the laws around recalling an elected official place the burden on those seeking the recall. For example, in Colorado a recall election must be preceded by a petition signed by at least 40% of the people who voted in the election when the individual in question was elected. In addition, if the recall fails, then the costs accrued by the incumbent for the recall election are assumed by the school district. In short, there is little oversight or accountability for elected school board members.

Enter student walkouts. The actions of the students in JeffCo appear to be an effective means to bring attention to the antics of school board members that may not be in the best interest of students. These walkouts seem to be shedding a national spotlight on the JeffCo School Board and that spotlight may be proving a bit blinding for some. I anticipate the JeffCo School Board to back down from the curriculum committee based on the public outcry, led by the students. So, in the end, kudos to the JeffCo School Board for providing its high school students with an authentic opportunity to practice civil disobedience and for teaching others how to effectively challenge partisan school board actions.

Sanity with Zero-Tolerance (Finally)

I hate zero-tolerance policies. Always have. They are just wholly unnecessary, legally silly, probably discriminatory, generally bad for kids and, on top of all that, don't even work. 

So, to my delight, finally zero-tolerance seems to have the worst of it in policy circles lately. Credit to Arne Duncan and the U.S. DOE for releasing new guidance last week that tries to put the brakes on mandatory suspensions and expulsions. I think the Secretary has intelligent things to say in this release video:   

The bottom line is that the law entrusts principals and other school leaders with the discretion to make appropriate decisions toward novel situations amongst kids. These disciplinary decisions can be incredibly difficult with intense lobbying on all sides. Many tears are shed and sleepless nights suffered over how to appropriately discipline kids. But, that is the job. It is a core function of a school leader and the manifestation of the trust provided to that position in our society. To attempt locally to shirk that responsibility through the use of hastily adopted zero-tolerance policies is cowardly. The policy position may appear tough, but it actually speaks to the weakness of the proposer. 

I am glad to see the light at the end of the dark, dark tunnel of zero-tolerance. 

Open Records & Academic Freedom in the Chronicle

The Edjurist's dear friends (Neal, Jeff & Karen) have a fascinating op ed. in the Chronicle of Higher Education today on the controversial request for university professor email and other documents by a conservative advocacy organization. 

Some thoughts of theirs: 

The problem with the unfolding episode in North Carolina isn’t the desire to challenge Nichol’s views and assertions. The problem is using an open-records request as a strategy to suppress debate. A law intended to add transparency and openness to government operations has been used to harass and silence.

Be sure to check out more thoughts from Neal, Jeff, Karen & their team at our sister blog, HigherEducationLaw.org. 

Election Results in Colorado

In May 2013 Governor John Hickenlooper signed into law Senate Bill 13-213, which replaced the School Finance Act of 1994 in Colorado and provided the state with a new funding formula. However, due to state constitutional restrictions around tax increases, the bill could not fully take effect until voters approved additional revenues for public education. The author of the bill, Senator Mike Johnston, likened the bill to a brand new car with no gasoline in the tank. You own it but, unless you get the fuel for it, the car will just sit in the garage. The gasoline for the new state funding formula was Amendment 66 – a $950 million proposed tax increase for public education. Colorado voters overwhelming rejected this tax increase (64% of the voters rejected the Amendment). The outcome was extremely disappointing for proponents of public education and have some worried about the end of schools as we know them.

Myron Lieberman wrote a book in 1993 entitled Public Education: An Autopsy. Given the fact that Lieberman’s prediction that public education would die has not come to fruition suggests that this vital entity to the fabric of American society has staying power and value. The temptation to overreact to election results must be tempered. There are countless examples of doomsday-esque predictions regarding the demise of public education, but all, up until now, have proven baseless (computers and the internet will replace teachers, the charter school movement, No Child Left Behind – to mention just a few).

As I have processed the results of Tuesday’s elections, I find my thoughts settling on a small school district in Colorado. This school district placed a sunset on a proposed mill levy override in order to garner the sufficient support for the override to pass. This school district has already gone through one sunset and then approached its voters for a second override, once again with a sunset (it too passed). The voters in this small community value education and value a degree of accountability. I feel like the voters of Colorado were not making a sweeping comment on public education, rather they were collectively expressing reservation with giving such a large amount of money to education. Perhaps they want greater accountability associated with the additional revenues?

There will be additional efforts to fund SB 13-213 and these future efforts (hopefully just effort) must ascertain the collective sentiment of the 64% of voters that rejected Amendment 66 to better meet their needs. Perhaps the tax increases must come with a sunset. Or, perhaps the total dollar amount was the biggest issue.

I see a connection between the election results in Colorado and the government shutdown in October. The connection is the need for collaboration. Regardless of my personal political views, I must realize that I need the other side of the aisle to support my proposed legislation in order for it to pass. The lack of collaboration in politics throughout the nation reminds me of the playground expectation that I get my way or I am going to take my ball and go home. Compromise appears to be a lost art in politics. I am calling for a return to compromise to ensure all views are represented in the formation of a solution. A compromise beats having a brand new car sitting in a garage unable to run due to a lack of gasoline.

Ed. Law Scholar Assumes Deanship of Harvard Graduate School of Education

James Ryan officially began his duties as the new Dean of the Harvard Graduate School of Education a few days ago. You can see the release naming him the new Dean here. His podcast upon starting the job is here. 

I am really excited to see his promotion and wish him the best of luck (frankly I am sort of happy to see HGSE finally employ a full-time law scholar). He is just the next in a long line of education law scholars assuming very high level leadership positions within the field of education in the United States ... and I think that is a very positive thing for all of us. Hopefully James will provide leadership not only to HGSE but to education colleges broadly who frequently look to Harvard for precedence. 

We Need Fewer Guns

Today, I was moved by the testimony of former Representative Giffords, "Too many children are dying. Too many children." You owe it to this country to at least listen to that video (click the link). 

I am a hunter. I grew up with guns, I still enjoy shooting, and I personally own a shotgun for that purpose. My own child went deer hunting just two weeks ago and I was proud of him. Most of my family and friends are gunowners and hunters as well, so they are likely to disagree with what I am about to say. So be it. 

We need fewer guns. Because "too many children are dying."

That's the long and short of this. Too many children are dying. We must respond and there is only one reasonable path. We need fewer guns.

Guns beget guns beget guns and a society with more guns is not safer, it is more dangerous.  

Not only are children dying from random acts of insanity at schools like those in Connecticut, Colorado, Kentucky, Virginia, and just about everywhere else ... but too many kids are killing themselves as well. There is too much unnecessary death and the always present tool seems to be the gun. 

I work with schools. I am deeply saddened by what I have seen these last ten years. Now, armed police roam the halls between our classrooms. Children not only learn to read these days, they learn to live in environments constantly patrolled by gun barrels. They learn to live in fear. That should be embarassing to us as a country. Children are in the presence of guns more frequently in the United States than in any third world country. It is compulsory in the United States for kids to spend their days watched by guns. I am embarassed at that reality.  

Now, serious people all over the country talk of arming principals or teachers. We should be disgraced at the thought. Anyone that advocates for giving educators guns but won't consider limiting assault rifles has a serious detachment problem from sanity. 

Guns beget guns beget guns. There is no solution to more guns except for more guns. Someone did actually define that cycle as insanty, once. So, our current national policy toward guns and kids is definitionally insane.  

Our poor schools do not know how to respond, except only to join in and try to stay ahead in this vicious cycle. I work with school leaders. I know what a difficult position they are in. So difficult, in fact, that reasonable school leaders have even started purchasing their own assault rifles for their office, so that in a shootout they will not be outgunned, I suppose. Where does this end? Metal detectors, surveillance cameras, police controlling our school hallways ... we have already given up so much that we cannot get back and for what? The children keep dying. Some cry out liberty and freedom in this debate, but where is our children's liberty? We have deprived them of their liberty, even of their lives, in our disillusionment that owning an AK makes us free. 

I don't care whether guns kill people or people kill people or whatever nonsense cliche you want to throw around to avoid the painful truth. Dead kids lie in graves that should be playing in schoolyards. Far, far too many of them. 

"Too many children are dying." We need fewer guns. 

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. 

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 . 

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. 

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. 

State Court Funding Symposium

I want to announce to our readers an upcoming event at the Universiy of Kentucky College of Law that has implications for education law.  The event, jointly sponsored by the Kentucky Law Journal, the American Bar Association, and the Center for State Courts, is a symposium on the funding of state courts, many of which are currently in what can best be described as a resource crisis.  Here is a link to the schedule of events on September 23-24, which include Keynote addresses by both Dean Erwin Chemerinsky of the UC-Irvine School of Law and current ABA President (and UK Law grad) Bill Robinson. 

Now, what does this have to do with education law?  Well, two major things.  First, as with almost all categories of law, the majority of education related disputes are resolved in state judicial systems.  A funding crisis in those systems will inevitably lead to a crisis in educational dispute resolution.  Second, as many of you know, to the extent that "education rights" exist in our system, these rights are primarily state constitutional rights.  Where state judicial systems are hampered, the development of these rights is also hampered.  The issue of state court funding is therefore a vital one for those interested in education policy and law. 

I encourage anyone with an interest in these issues of access to justice (and the ability to be in beautiful Lexington, KY this Friday and Saturday) to attend the symposium. 

Ain't That a Kick in the Wallet

Illinois is no longer funding regional superintendent positions. Not a huge deal except that they all have continued to work for the past 2 months without pay. And, Friday, a judge told them that's the breaks and thank you for volunteering and you're welcome to continue to do so. The legislature might step in and override the governor, but short of that these educators are out of jobs, practically if not technically. 

Of course, guys like this make everyone else look bad :) 

Anyway, back on point, as a person who was fond of my regional superintendent while working in Illinois, this is a real shame. Were there too many regions. Probably. Was their bloating and waste at this level? Yeah. But, did Illinois need to eliminate the entire structure? Surely not. 

I'm sure the legislature and governor's office will negotiate some new regional structuring, but sometimes Illinois just can't help but embarass itself in the process. 

Attorney General Opinions for Education

So, tonight is my first real deep foray into the usefulness of Attorney General opinions in educational settings ... and, I am really impressed by them. Any lawyer coming out of law school should at least be aware of attorney general opinions as an element of the legal system, but I do not think everyone is aware of exactly what kind of role those opinions can have. Certainly, I can say that I did not. 

But, after sitting tonight and reading about 30 historical opinions on the Kentucky Education Reform Act, I have to say how superbly useful they were to the implementation of that law, especially in relationship to Kentucky's School Based Decision Making Counsels. 

Anyway, consider using an Attorney General's opinion in the future in your state if you have a complex legal question that is unclear in statutory or regulatory language. 

Diffusing the NCLB Bomb: A Final Conservative Federal Education Expansion

Today was inevitable, really. And, everyone knew it. Washington's plan was simply untenable. It could never work the way it was written. 

(No, not referring to the debt crisis and downgrade and, well, the plunge today (don't get me started, just go here, please)).  

Everyone knew NCLB's accountability provisions were a ticking bomb. They were never going to work. While some speculated that the bomb was intentional to blow-up public schools in favor of private and other options, that there was a hidden bomb in NCLB was unquestioned by even those with cursory knowledge of the law. 

Lately states, such as mine, were getting tired of the inevitable countdown to 0 (as in the total number of passing schools on the accountability indexes). The grumbles were growing louder, yet nothing happened in Washington (they were too busy messing with our credit score). In reality, there was never so much as serious talk of a NCLB reauthorization timetable. Reauthorization may still be two or more years away and by then the bomb might actually explode. 

So, today, the U.S. Department of Education took a big step. A unilaterial step. Perhaps an unauthorized step. Relevant quote:

The administration’s plan amounts to the most sweeping use of executive authority to rewrite federal education law since Washington expanded its involvement in education in the 1960s. 

This is a complicated issue, so please don't think we are going to cover it all in this blog post. But, there are a few critical factors worth explaining:

1. This limits the role of the federal government. States, like Kentucky, will probably get to write their own accountability systems again. This brings the federal role more in line with the Tenth Amendment and the general concept of federalism in education. 

2. This expands the role of the federal government. Yes, contradictory I know. Even though an individual state will get to write their own plans, the federal government has sign-off authority. As was shown with Race-to-the-Top, the Feds are not above using that kind of authority for coercion. Already in their public statements on this change, it is very clear that this will be a coercion mechanism to get the kind of reform Washington wants. Coercing states is more in line with the spending power of the Constitution, but much less in line with the Tenth Amendment.  

3. The biggest expansion of the day, though, was of the power of the U.S. Department of Education. They are now front and center for education reform in this country. Many would argue (probably including me) that this is not their place not only under the Tenth Amendment, but also under generally understood principles of administrative law authorized by Article II (today was a possible infringement on Article I (ultimately, Article III might have to resolve this ... confusing enough for you?)). 

What does all this mean? I don't know. The federal role in education is probably expanding, but it is doing it through the back door. As such, few people are really noticing and those that do have few options because they are already in the house. Federal expansion is a bit of a bell that cannot be unrung. That the federal role is expanding ... is likely inevitable. Today was just a different route toward doing so that positioned the Department of Education (and not Congress, nor the States) as the central accountability mechanism for education in the United States. 

That they expanded today by actually helping states diffuse the bomb ... was creative and interesting. Because of that, a serious constitutional challenge might be avoided. In the next few weeks, we will likely see bills filed in Congress and new committee hearings and some pomp and circumstance against this - but, I would be surprised if this plan is not implemented and that this is not the framework for a reauthorization, whoever gets elected president next time. 

So, today the NCLB Bomb was largely diffused. Good. It needed to be. But, in doing so, the federal government's role was expanded once again. A final, ironic chapter in the conservatively sponsored NCLB Act.

Knowledge of the Business of Higher Education ... And Our Lack Thereof

Why do we not teach future faculty members anything about the business of higher education before we put them into the teaching jobs? It is an enormous deficiency in our knowledge base and I think it has real, negative effects on the institutions that hire us. 

I just wish I knew a lot more about running a higher education business than I do. I feel I basically have to learn all of that on the fly, and (honestly) sometimes I am making mistakes. 

For instance, recruiting and marketing. Increasingly, departments (especially mine) are having to do most of our own recruiting and marketing. I know little to nothing about these things, but they are vital to the health and prosperity of our department. To be honest, I wish I knew a little less about John Dewey and a little more about this. 

And, I think the implications are that many departments and programs are struggling with the actual business of running these places - leading to institutional weakness. I think this is particularly acute in the Research Universities that tend to hire folks like me ... relatively young, newly hooded, naive, inexperienced greenhorns. Don't get me wrong, some of these greenhorns have remarkable ideas -- and, perhaps, some of us will cure cancer or something (or help lead a technology revolution in our education systems ;). But, to do that, we need functional and economically healthy departments within which to work. Regional and private universities tend to hire a greater percentage of second-career professors. Presumably, these folks learned the business of something in their first career, and are capable of adapting some of these ideas. There is still a tremendous knowledge gap for these folks, and an ever greater knowledge gap on the research front, but purely from a business standpoint, they seem to have a bit of a leg-up. 

Across te board though, it seems at least to me, that more and more of that "economically healthy" work is falling to new professors. So, perhaps we should think about some formal attempt to prep them for these roles? 

I don't know. Just a thought on a late Sunday night to interrupt my grading.  

The Federal Role in Education ... Totally Confused

Can anyone make sense of this? The whole thing is a disaster. It feels like the Heritage Foundation is not even trying to be remotely accurate. 

Anyway, for what it's worth, here you go: Federalism in Education Made Simple

Education, Law & Copyright

Here is my latest lecture. This was delivered originally at the KASA Law & Policy conference in June. I rerecorded it for Education Law Association purposes, as I will be doing a podcast for their project to get podcast coverage of most topics in education law. 

So, Now the Door is Wide Open! Arizona's Tax Benefit for Religious Schools

So, in probably at least half of the U.S. state legislatures today, a legislative aide got busy writing up a private school tuition tax credit program. While these programs might or might not be constitutionally legal ... it doesn't really matter as they are not subject to review by the Courts (for all intents and purposes). But, worse, next week that same legislative aide is going to sit down with a cup of coffee and ponder all the ways in which tax credits can be used to circumvent the Constitution (at least the Supreme Court's historical interpretation thereof ... hello Abortion!). 

Today the Supreme Court created, for lack of a better term, a Constitutional loophole.  

In a 5-4 decision, the Supreme Court denied standing to Arizona taxpayers seeking to challenge the tuition tax credit program which mainly benefits religious schools. Mark Walsh, as always, rocks the details. Taxpayer standing, which is always a complex issue, is not generally permitted for challenges to governmental spending. There must be a more substantial harm than just disagreement with how the government is spending your tax dollars (or in this case, the tax dollars of those choosing to provide the scholarships and thus receive the credit). One harm articulated in the past has been First Amendment violations, but the Court in this case explicitly exempted tax credit programs from such review. 

Okay, to the analysis ...

First, I got to give props to the designers of this legislation in Arizona. At this point, you can argue a lot of things about this legislation, but you can't argue the creativity and genius of the program's design. It has withstood multiple challenges and has now been functioning for over a decade. Even if it does eventually fall, the legislation's authors have more than proved their worth. 

Second, let me just be honest, I really dislike this law. It is a back-door policy to get public money into private schools. Arizona tried other routes toward that end in the past, and fundamentally it is hard for me to see this any differently. This is just a very, very cleverly constructed voucher program that takes advantage of a constitutional loophole in that it moves the money into private schools before it is even officially in the government's possession. Thus, instead of calling it a voucher, it can be called a tuition tax credit. But, rest assured, the intention of the law is not that far removed from the intention of the voucher law. I don't think most reasonable people would even argue that point. 

Third, here is Scott's post at oral argument. While he got the prediction wrong, the issue is right on point.

Fourth, Bruce Baker asks ... so, who can sue? Well, short answer, no one. The long answer is not much different, either. Individual suits against individual harms are still permitted (such as suits against the private schools for violating constitutional rights). Plus, as Scott pointed out in a phone call, state constitutional claims may still be a viable (and better) angle. While the Arizona Supreme Court has already blocked this angle, it would still have to be litigated in other states - and other states have more restrictive state aid to private school provisions. Now, just me personally, I feel there might be some claim available by a private school against the program, if the private school (think Montessori) were denied authorization under the program and some religious schools were not. If, for instance, Arizona just approves a whole diocese worth of Catholic schools and there is no similar option for an individual private school, there might be a claim that could get to the Establishment issue, but, even then, the remedy would not be striking down the whole program but just approving the challenging school.

Thus, as Scott pointed out on the phone tonight "it would take impossibility after impossibility after impossibility" to get a viable, justiciable, individual harm from which to challenge the entirety of the program under the Establishment Clause.

So, there we have it. If you want a more complex legal analysis of the taxpayer standing and Flast exception issue, some law professors will go there with you (2) (3) (just search Google Blogs).

What this means for schools? In the near term, not that much. Arizona was a test case and it will take several years for these to populate around the country. Over the longer term, I'm sure we'll see some more of these policies across the states, but I don't think schools will really feel too much of the pinch because their appropriations per student are unlikely to change that much. It might convince a few more students to attend private school than would have otherwise, but I sort of doubt it will create a flood of students leaving the public schools. It will keep per pupil allocations perhaps a little lower than they otherwise would have been, but since the school never had those dollars in the first place, I doubt they will miss it that much.

But, from a legal standpoint, it was an important day as the Court solidified a pretty gaping Constitutional loophole. That's my greater concern. What new ways will legislatures will use this loophole to circumvent the Constitution? ... Well, we are going to find out, it seems.  

Update: Scott sent over this blog post by Chris Lund, which thinks the credit exemption is quite a bit narrower than most are reading it. It is worth considering. Especially since it is coming from Kennedy ... who likes to draw such almost incomprehensibly fine distinctions (see Parents Involved). 

New Title IX Guidance

The DOE has released new Title IX guidance. Here is the official DOE Page.

Just from a quick scan, the thing that stands out to me is the focus on the language "sexual violence" instead of "sexual harassment."

 Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. In order to assist recipients, which include school districts, colleges, and universities (hereinafter “schools” or “recipients”) in meeting these obligations, this letter explains that the requirements of Title IX pertaining to sexual harassment also cover sexual  violence, and lays out the specific Title IX requirements applicable to sexual violence.  Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. In order to assist recipients, which include school districts, colleges, anduniversities (hereinafter “schools” or “recipients”) in meeting these obligations, this letter1explains that the requirements of Title IX pertaining to sexual harassment also cover sexual violence, and lays out the specific Title IX requirements applicable to sexual violence.

I'm not sure the purpose of this, whether this was just meant to cover a small component of Title IX, or to try to redirect the broader discussion (hopefully just the former). Either way, I don't really like the move. Title IX is much broader than just what comes to mind when we hear the term "sexual violence." Additionally, I think more clarification is needed on the harassment part than on the violence part. I feel practitioners are pretty good at distinguishing and punishing violence, but not so good at distinguishing and punishing harassment. There is far too much sexual violence, don't get me wrong, so focusing on that is a worthwhile endeavor and much of the guidance seems aimed at prevention procedures. But, I hope this is not going to take the spotlight away from the harassment and bullying components of Title IX - which still need a lot of clarification. 

Thanks to Jason Block (who you will be hearing a lot more from over the next couple years) for the tip. 

You can see some of our comments on the last DOE guidance on bullying here - plus, why I love ELA.