ELA Proposal Deadline

Just a reminder: The Education Law Association will host its annual meeting for 2011 in Chicago November 9-12.  The deadline for proposals to present at the conference is March 1st (tomorrow).  If you want to submit a proposal, click here, and follow the instructions.  Hope to see everyone in Chicago!

Remedial Abstention as a State Constitutional Requirement

Here's a new one.  The Kansas Legislature has passed out of a House committee a proposed amendment to the state constitution barring the Kansas courts from issuing remedial orders to increase school spending.  The local paper's story is here.  This action is purportedly in response to the 2005 Montoy v. State ruling that held the state's school finance system unconstitutional and ordered increases in expenditures. 

I am often skeptical that school finance remedial orders will be effective, mostly because I believe that, at a certain point, most legislatures will simply choose not to comply (or enough legislators will simply not vote to increase funding), and no state grants its Supreme Court the power to hold individual legislators in contempt for failing to vote a particular way.  But I have to confess that I never expected a state legislature to go on the offensive like this. 

Essentially, if passed and ratified, this provision would take the relatively prudential determination of whether to order a coercive judicial remedy after identifying a constitutional violation, and decide it for the court.  I have argued in the past that courts which hold a state constitution to be violated, but choose not to issue remedial orders, engage in an illegitimate form of "remedial abstention," which leaves plaintiffs whose rights have ostensibly been violated with no redress.  In an upcoming paper, I argue that this has the effect of devaluing any "education rights" that the plaintiffs possess.  The Kansas provision, if passed and ratified, makes that outcome much more likely.  

Education (again) is the Flashpoint

For some reason, this is our curse. We are the flashpoint for many, many important national confrontations. 

The most notable is Brown v. Board, but through the years education has consistently bore the burden of these national confrontations. Evolution (Scopes & Kitzmiller), government regulation of speech (Tinker & Pickering), Affirmative Action (Bakke, Grutter, etc.), the Pledge of Allegiance (Newdow), Disabilities (IDEA), Poverty (Title I) and on and on. 

It now seems we are tasked with this role once again. This time it is increasingly looking as though the national debate between the Obama movement and the Teaparty movement might center on schools. In his recent budget release, President Obama called for increased federal spending on education. In their response, the U.S. House (pressured by the Teaparty movement) called for 5 billion in cuts. As Education Week reported: 

“We’re clearly headed to some kind of showdown,” said Joel Packer, a veteran education lobbyist who now works for the Washington-based Raben Group, where he represents the Committee for Education Funding, a lobbying coalition. The Obama administration’s fiscal year 2012 spending plan seeks to raise funding for the U.S. Department of Education by more than 4 percent, he noted.

“House Republicans and the administration are moving in exact opposite directions. These are not just minor differences,” Mr. Packer said. “They’re radically different visions of what the federal role in education should be.”

I pray that this fight does not put education in the middle. The initial fight seemed to center around healthcare, but on that front the Obama administration has already won. On education, the movements are currently on equal footing. And so, once again, it is increasingly looking as if education will be the flashpoint. 

It is quite the burden to ask our children to bear, but, as before, I'm sure they will prove their shoulders are broad enough to facilitate our future. However, we adults should know better than to ask our children to pay this price for us. Let us fight over Social Security. Let us fight over healthcare. Let us fight over taxes. Let us fight over defense. Let us fight between ourselves. But, history tells us ... we won't. It is our children's burden to bear. God forgive us. 

Globalizing education in Michigan

Michigan's Superintendent of Public instruction spoke at the iNet conference in Lansing, Michigan yesterday.  The State Board of Education approved new cut scores on state educational assessments (MEAP & MME) so that they are consistent with College and Career Readiness standards.  Currently, about 90% of schools in Michigan are considered to be proficient on these tests because of the low cut scores.  The new reconfiguration of the cut scores will dramatically alter the number of schools with students passing these exams, pushing the passage rates into the 30-40% range.  This change has been described as moving Michigan from preparing students to work in a basic manufacturing economy to being college and career ready.  Mr. Flanagan described the change as an important step towards educational success and telling the truth about the status of our current educational system. He did not discuss what this would mean for schools under No Child Left Behind's requirements that they equip students to achieve proficiency on academic tests by the 2013-2014 school year or face sanctions.  

Superintendent Flanagan's discussion of the Board's decision fit well with the theme of the iNet conference, of developing globally competent students.  Professor Young Zhao (University of Oregon) and Bob Compton (high-tech Entrepreneur and documentary filmmaker) debated different viewpoints on what an educational system that produces globally competent students looks like.  Crompton advocated for placing a high value on academic rigorous courses for all students.  He said we should elevate the status of academic achievement in this culture like it is in other cultures that score well on international tests like PISSA and TIMMS.  Zhao said we should be careful not to place too much weight on the international tests.  The U.S. has a history of not scoring well on these, so it really shouldn't be a crisis now.  Instead, we should help students identify the things they are good at and they enjoy and allow them to pursue these interests in a structured manner.  Both speakers talked about the importance of entrepreneuership in the global economy and how local jobs will not be automatically available for future generations as they were in the past.

Michigan has moved in the direction that Crompton suggests with high academic requirements for all students. We require 4 years of math, 4 years of English, and 3 years of science in order to graduate high school. The underlying assumption is that there is a basic set of skills that all students need to acquire in order to participate in our society as a citizen and as a worker.  The question is whether this full schedule will also allow students to pursue the things they are best at and passionate about, so they can develop the creativity that is needed to be a successful entrepreneuer in the global economy.  I don't know the answer to this question, but I do have to say that I support more rigorous academic standards and so I applaud the Board's efforts in adopting both the graduation requirements and the more realistic cut scores on state tests.

Unnecessary Apprehension

Unnecessary apprehension. That's about the best way I know to sum up the prevailing predisposition of school administrators toward technology. For some reason (and I have some guesses), school administrators think that technology, particularly the Internet, is a legal blackhole. That lawsuits will ensue immediately if they ever let the Internet in. 

No. This is the wrong disposition. 

Nothing in the law requires you to have that kind of predisposition against new things. In fact, in the area of technology, the law is actually very accommodating toward change. People frequently think because there is no written statute or regulation for/against doing something that there is no law. That's not correct. The absence of law is a law. In situations where there are no written policies, the law typically relies on the discretion of officials. For us, that means teachers, principals and superintendents using their best judgment in moving schools forward. 

So, not only is this not a legal blackhole, but broadly administrators are the law. And, if those teachers and administrators stay within those broad legal guidelines, the courts will back them.

Here is what I think is the real hard part of that ... it's hard making the law. It's hard to build coalitions. It's hard to come up with new policies. It's hard to get community input. It's hard to do the background research. And, finally, it's hard to take the risk. 

But, those things (building coalitions, writing policy, talking to the community, background research) are exactly the kinds of things that leaders do. The reason we (the law) give you that legal authority is because we expect you to do those things. If you don't, you shouldn't be a leader. In situations where we give administrators discretion, we are doing that because we know there is risk and uncertainty. That's the whole point of giving you the discretion. If it were not risky or uncertain, a politician in the state capitol would do it and put it in statute. The courts know this. And, because of that, there are protections built into the law to protect school officials.  

So, let's lose the unnecessary apprehension out there. Don't blame the law for avoiding the hard work of integrating and navigating the uncertainty.

*This post is a follow up to my presentation in Western Kentucky at the first Green River Regional Education Cooperative conference in Bowling Green today.