Washington (State) Special Education Funding Challenge Fails

At the end of last week, the Washington Supreme Court issued its decision in School Districts' Alliance for Adequate Funding in Special Education v. State (link to majority opinion).  The court rejected a challenge to the adequacy of special education funding in the state, holding that any such inadequacy was not shown "beyond a reasonable doubt."  At first reading, this seems to be an odd standard for determining educational adequacy. 

However, the court took pains to note that the "beyond a reasonable doubt" standard of unconstitutionality is not an evidentiary standard, but a way of calibrating the extreme deference that the court affords legislative policy judgments.  Thus, on a broader reading, the decision seems in line with the current trend in the adequacy cases to (1) reach the merits; but (2) apply a highly deferential standard of review (see my posts on Colorado, Connecticut, and Missouri). 

The court also hinted that the challege to the statute's constitutionality was an "as-applied" challenge, rather than a "facial" challenge.  Bill Thro's most recent article would argue agaist that characterization for state constitutional challeges to funding statutes, and I tend to agree normatively.  Nevertheless, descriptively, the way the case was presented to the Washington court, I think that the "as-applied" label might fit there. 

By way of shameless self-aggrandizement, I must also point out that two concurring justices saw fit to cite my recent Alabama Law Review piece in criticizing the "beyond a reasonable doubt" standard of constitutionality. 

National Education Finance Conference

I am a little late in posting this, but 2011 will mark the inaugural year of the National Education Finance Conference, an annual event intended to allow for "collaboration among legislators, postsecondary education, school district and state agency personnel, professional organizations, and researchers concerned with the importance of equity, adequacy, and efficiency concepts that affect state, local, and federal revenue generation, distribution, and expenditures." 

I have been in contact with the organizers, who include some of the more well-recognized scholars of school finance and education funding litigation, and the conference sounds really terrific.  Best of all, the venue is beautiful Tampa, Florida (one of my former hometowns).  If you have a paper in the works on a school finance-related topic, please consider submitting a proposal to present.  The deadline is January 15th, 2011.  For more information see here. 

Courts' seeming concern with educational che guevaras in relation to teacher speech

I was reading the recent decision involving teacher speech from the Sixth Circuit, Evans-Marshall v. Bd. of Education.  Scott Bauries posted about the decision if you’re not familiar with the case.  The Evans-Marshall decision cites Mayer v. Monroe County Cmty. Sch. Corp., 474 F.3d 477 (7th Cir. 2007), and a facet of Mayer, one found in other opinions involving teacher speech and the Garcetti standards, continues to annoy me (okay, multiple things about Garcetti irk me, but I’ll just focus on one in this posting).  In a case like Mayer, the court only really conceptualized teacher speech in relation to major curricular and pedagogical issues and decisions in justifying application of the Garcetti standards.  But Mayer involved the school claiming that the First Amendment didn’t apply to a teacher’s speech in relation to responding to a student’s specific question rather than involving some big curricular choice or defiance of some official board policy.  The court didn’t focus on the type of speech at issue in the case or the context in which it actually took place.  Instead, the opinion contextualized teacher speech more in relation to “big picture” curricular and pedagogical decision-making issues. 

So, setting aside speech related to major curricular and pedagogical choice issues (and I know that Evans-Marshall dealt with just such issues), it bugs me that many courts won’t acknowledge that teachers engage in all kinds of extemporaneous speech on a daily basis.  If courts want to reinforce managerial control over teachers, then be intellectually honest in opinions--and a decision like Mayer isn’t really--that we’re also often talking about more extemporaneous-type teacher speech rather than just, say, pre-meditated plots to subvert the approved curriculum or pedagogy.  Just be honest that unsuspecting teachers acting in good faith and striving to satisfy district policies and standards are also fodder for the Garcetti standards along with those educational Che Guevaras seemingly lurking in the school halls (at least that seems to be the case based on the rhetoric found in some of these opinions).

And school districts need to be honest that in failing to adopt voluntary free speech standards for teachers, they are sending a message that they are not really seeking educators in the classroom but are really more interested in what I’ll call content technicians.   

Know your Community this time of Year

This time of year there are usually lots of news stories out there about possible Establishment Clause violations in schools. A few years ago we even turned them into a game, although I guess we learned our lesson not to repeat that. And, on schedule, the first of the new stories this year are beginning to come in. This one, from Ames, IA and Scott McLeod about a "Winter Tree" being taken down. 

We've had that debate and if you are a regular reader you know that I am fine with Christmas trees in classrooms. They have crossed some undefined boundary to me from religious symbol to secular cultural symbol.  But, not everyone agrees. Thus, the key in these instances is to know your communities. Obviously, Ames being a liberal college town is going to have less tolerance for Christian symbols during the holidays. Some rural Kentucky towns around me want those symbols, so it is all relative for you school administrator types out there. 

So, while we lawyers fight over secularity, the Lemon test, etc ... just do what you think is best by your community and most of you should have a fine (and quiet) holiday season.