NCLB Reauthorization Status Report from LATimes

Just wanted to link all of you to a great status report on NCLB Reauthorization. Kudos to Nicole Gaouette the author.

WASHINGTON -- Rep. George Miller (D-Martinez) has never been one to
back away from a brawl -- he once warned an adversary that if he wanted
to fight, it was going to take a while, so he'd better bring lunch. But
as Miller pushes to renew the landmark education law known as No Child
Left Behind, he faces so many fights that the fate of the bill is
increasingly in doubt.

As chairman of the House Education and Labor Committee, Miller is
sparring with Republicans who see his proposed changes as an
unacceptable watering down of the law's core standards.

Teachers object to his proposal to link pay to performance.

Even his fellow Democrats -- particularly freshmen who campaigned
against it and members of the Congressional Black Caucus -- are giving
him a hard time, largely for not doing enough to soften the law's most
rigid requirements.

The 2001 law, President Bush's hallmark domestic achievement, is
supposed to be renewed every five years, although it remains in effect
even if lawmakers fail to do that.

Democrats pledged to rewrite it this year, but time is short and
political tensions are high. Congress plans to adjourn for the year in
a few weeks. And some Democrats are loath to give Bush a victory on No
Child Left Behind when he refused to compromise on the Iraq war.

"We're certainly not in full agreement," Miller said, mentioning talks
with committee Republicans. "Not between my caucus and their caucus,
not between Mr. McKeon and myself. Whether we can reach an agreement
remains to be seen. We're pushing as hard as we can."

Continue Reading ...

What to do with Law Students and how to get them into Education?

The New York Times has an interesting article this morning on changing the law school curriculum toward a more practically oriented perspective.

Here are a couple of highlights.

1. Schools are moving to include a course on interpreting statutes and regulations in the first year. Personally having aided in the design of just such a course at Southern Illinois University Law School, I can't tell you how pleased I am to see this catching on across the country. At least in education law, most of the legal content governing schools are from statutes, yet most of the scholarly productivity is on cases. It is time to change our focus a bit.

2. Law schools are making it easier to take courses in other graduate programs in the university. As a product of a joint-degree program, again, I am pleased to see this trend. Further, working here at IU, there is an increasingly productive relationship between the School of Educationin which I teach and the IU Law School. The relationship is really helping to produce some great individuals in education law who will have a big impact on schools in the future.

3. Law schools are expanding their clinical offerings. In a sort of unofficial study I did of law school offerings, I was surprised how many law schools offered a clinical program in special education law. Special education is an underserved field within the legal community and I am extremely pleased to see law schools picking up some of the slack. I would encourage more law schools to consider a special education clinic as part of their practical education package.

As law schools begin to adapt their curriculum to a changing world, I hope they see the potential in educational law. Programs are offering more and more joint degrees in business, public administration, health and even philosophy, but to this point are still generally neglecting joint education degrees (heck my old law school has one - I know because I set it up while I was there - but fails to advertise it). At education schools with educational policy programs and educational lawyers on staff, efforts should be made to connect with the law school to provide options to young lawyers to enter education.

Principals in Power in New Orleans?

Even since Hurricane Katrina, the schools in New Orleans have been in a state of constant flux. Rules are being rewritten and there are more charter schools and other non-traditional education opportunities than ever before.

The latest is a proposal by Recovery Superintendent Paul Vallas (former Superintendent of Chicago and Philadelphia). He wants to give more governance authority to principals. This new authority would include the hiring and firing of teachers, a power typically reserved for central administration. Also, the new plan intends to give principals greater control over their budget.

Here is the article in the New Orleans Times-Picayune

While I understand the desire to give this decision-making authority to the people that work most closely with the teachers, I do have a few reservations. First, principals are already overworked. Putting personnel and budget authority also in their hands will only exacerbate the problem. Principals are supposed to be the curriculum leaders for schools. Already most principals find little time for directing the curriculum with all the disciplinary, supervision, and evaluation responsibilities. My second concern is regarding the relationship between principals and teachers. When decisions are made by central office staff (based on principal evaluations and recommendations) principals are free to develop closer relationships with teachers. But, when a principal knows they may have to fire a teacher they are less likely to develop those intimate relationships that help the school function. Also, teachers will likely become more vocal about personnel decisions. A board, superintendent and central administration is hard to fight, but a local principal is much easier to get removed with a little public outcry. With the new configuration, I would expect teachers to complain more publicly in attempts to remove unfavorable principals.

Anyway, those are just a few reservations that strike me immediately about this possible governance change. I do not think I am 100% opposed to it, but it will carry implications that will probably make local schools more cold and hostile places.

Reader Comment Strip Search of 13 Year Old - Redding v. Stafford

Typically I don't post reader comments on the main blog page, but this one warranted special attention. About a month ago I wrote on a strip search case out of the 9th Circuit: Redding v. Stafford. The case involved a strip search of a 13 year old by school administrators who were looking for prescription Ibuprofen. At the time I disagreed with the majority who ruled the search was legal.

Well, a few days ago, the plaintiff in that case wrote back in a comment:

Savana Lee Redding wrote:

This article is about me and i want
to thank Justice Thomas for standing up for me when no one else would.
i wrote a letter to the editor of the Eastern Arizona Courier. go to
their website and read it, its called, "How would you feel?", and leave
a comment. I appreciate this article very much. -Savana Lee R.

Link to Eastern Arizona Courier Editorial

Since the plaintiff of the case wrote the comment, it has special meaning. I brought this case up to the educational law class I teach and the students took special interest and as a group really felt for the plaintiff. Since the class I teach in this semester has over 140 students, it is likely that this case will have a impact moving forward as not only will most of those students become teachers, but many will become administrators and be in positions to make search and seizure decisions such as the one in this case.

So, Savana, thanks for writing back. I am sorry you had to go though the situation you did, but hopefully we will all learn something from it and the world will be a little better place going forward.

PDA, Sexual Harassment and Bullying - Where are the lines?

Interesting story in the Dallas Morning News this morning on public displays of affection among students (PDA).

Schools take hard line against public displays of affection

Critics say bans on hugging, touching go too far in bid to prevent sexual harassment suits

04:51 AM CDT on Friday, October 19, 2007

By STELLA M. CHAVEZ / The Dallas Morning News

schavez@dallasnews.com

A 7-year-old boy in
Duncanville gets in trouble for telling a classmate to wear a darker
shirt because he can see her bra strap. The school suspends him and
labels the incident as sexual harassment.

In Keller ISD, school officials catch an eighth-grade girl holding hands with a friend and tell her to stop.

   

From bans on hugging to labeling comments as sexual harassment, schools
are cracking down on anything that smacks of sex. Critics say teachers
and administrators have become too fearful of lawsuits and have stopped
letting kids be kids.

Recent precedent-setting lawsuits
have made it clear that school officials must respond to complaints of
student-on-student sexual harassment or face possible court action.

"I think it's the kind of world we live in today, but you would hope
that common sense would prevail," said Jeff Horner, a Houston attorney
who represents school districts.

Experts liken the
crackdown on student behavior to the way districts responded to safety
and security issues after the 1999 shootings at Columbine High School
in Colorado.

Archie McAfee, executive director of the
Texas Association of Secondary School Principals, said school
principals and administrators are caught in the middle.

If a school district punishes a student for what parents say is a minor
offense, it faces scrutiny. But if a district doesn't take a complaint
seriously, it could be held responsible.

The Supreme
Court ruled in 1999 that school districts can be held liable for
ignoring complaints of student-on-student harassment or failing to
protect students.

In that case, Davis vs. Monroe County School Board of Education,
the parent of a fifth-grade female student sued the school district for
failing to intervene when a fellow fifth-grader harassed the girl for
several months. In the court's eyes, the district had been negligent.

Jim Walsh, an Austin lawyer who specializes in school law, said the
case proved that sexual harassment is a legal concern – not just a
moral and educational one.

Continue Reading ...

This is one of the areas I see a lot of confusion about among school administrators and teachers. I can understand schools over-regulating in this arena, but it is really unnecessary. There are a lot of horror stories floating around where schools were inactive in stopping some form of student-to-student abuse and there is a suicide or a million dollar judgment against the school. Still, those instances are extremely rare. Thus, it is important for school personnel to understand what Davis v. Monroe said. Here is the slide I use in teaching this material:

So, let me say a couple things about it. First, school personnel can be school officials, so this implicates everyone. Second, deliberate indifference is more akin to purposefully ignoring than it is to simple lack of oversight. Further, cases have found that some reasonable action toward stopping the harassing treatment gets school authorities off the hook for deliberate indifference. So taking some action to resolve the behavior may be enough; it is not necessary to suspend a student to avoid lawsuits under this standard, simply acknowledging that such harassment exists and asking students to stop may be sufficient based on the circumstances. As if those two prongs of this test were not enough, the Supreme Court added a third prong to protect school officials even more, the severe, persistent and objectively offensive prong. What is severe, persistent and objectively offensive? Well, it varies from case to case, but simple instances of a PDA would probably not qualify. The Supreme Court intentionally added this prong to protect schools and school authorities from all but the most blatant instances of student-to-student harassment.

Just like most things in schools, we rely on the judgment of the school authorities. When school authorities are making rational and reasonable judgments about stopping harassment, more often than not they will be protected by the Davis v. Monroe test. It is only when teachers and administrators get outside the bounds of reasonable judgment that they subject themselves to liability.

Edit: Found this today and thought it applied. From Slate.Com:
              

Special Ed Law Blog and Board Buzz Mixing it up over Recent Tom F. Case

Just wanted to clue my readers in to the mini-debate that went on between the Special Education Law Blog and Board Buzz at NSBA. And, a hearty kudos to the authors for mixing it up a little. We could use more of that in the educational law blogosphere. Nicely done.

Post 1: In Tom F. Case Tie Goes to the Parents (Special Ed Law Blog)
Post 2: Bellyaching, Blogs and BoardBuzz (Board Buzz)
Post 3: Stinging Back over Tom F. (Special Ed Law Blog)\

Just for the record, I agree schools are not the weaker party as Special Ed Law Blog asserts and that IDEA should be construed in favor of the children/parents, but I agree with BoardBuzz that this case was wrongly decided by the 2nd Circuit and the 4-4 split just reinforced that wrong decision. IDEA was meant to provide special education services at public schools, not at private schools with unilateral placement. I also agree that this will not affect the large majority of special education cases, but I could certainly see a rise in private schools marketing their special education services to parents to encourage unilateral placement with tuition reimbursement. Given the cost of some of these private placements, even one student going this route will create a financial burden. It is not the end of the world, but it will be an additional financial burden on district budgets that are already stretched thin by special education. All that was needed to avoid the potential additional burden is to require parents to at least try the public school placement, which is not too much to ask as it is the public's dollars that will pay for education.

If the Supreme Court wanted to give parents some more rights in Special Education, they should have done it in Schaffer v. Weast and left the burden of persuasion on the school. The Tom F. case was inappropriately decided and I hope they take another case soon to clarify the issue (although they just denied cert. in Hyde Park v. Frank G., a case which could have provided more clarity).

President Bush on NCLB Reauthorization and Supplemental Services

As sort of a follow up to the post linking to a report I coauthored on NCLB choice and SES, I want to post this link to some CBS News Video of President Bush in Arkansas talking about NCLB. Interestingly, he states that if Congress passes a weakened NCLB, he will veto it.

CBS News Video

                   

New CEEP Report Out: Outcomes of the School Choice and Supplemental Educational Services Provisions of NCLB

A new report titled, Outcomes of the School Choice and Supplemental Educational Services Provisions of NCLB is out today at the Center for Evaluation and Education Policy at Indiana University. I was a coauthor on the report along with Terry Spradlin.

A press release on the report can be found at the IU School of Education and the IU Newsroom.

Banned Books at Time.com

Time has a list of banned books and the controversy surrounding them on their website (click next in gray bar to see more).

Some surprises in there including a couple of children's books.

                                                               

Education 2.0

Whenever I present on educational law I almost always run into questions about educational technology. I have even presented on that specific topic: Educational Law in Light of the Technological Revolution. So, it was no surprise last week when myself and some colleagues were presenting to a group of women administrators that a question came up on the law related to educational technology. What always strikes me, however, about the types of questions that administrators ask is how out-of-touch they really are. For instance, just this last week, the question revolved around teacher speech and the Internet, specifically blogs. While that is a good and relevant question that we did our best to answer, the administrators on hand were slow to acknowledge that teachers actually had blogs or MySpace pages. Umm, yes, they do. Not only that, but many administrators themselves have blogs.

So, not like this will reduce the number of questions, but I want to point my readers to four videos that will start to give you an idea of just how much the world is changing around us. It takes about 30 min. to watch them all, and I gave links to places where you can find more videos on the subject.

Did You Know 2.0

Web 2.0: The Machine is Us/ing Us.

A Vision of Students Today

2020 Vision

And that is just the beginning. There is a lot more video content available at the Moving Forward Wiki.

Tom F. Case Already Published

In what has to be some sort of land speed record, the Supreme Court has already published the Board of Education of the City School District of the City of New York v. Tom F. case.

Here is the full text of the opinion:

PER CURIAM.
The judgment is affirmed by an equally divided Court.
JUSTICE KENNEDY took no part in the decision of this case.

I am not exactly sure why Justice Kennedy recused himself in this case, but his crucial role of the swing vote was eliminated and the court found itself equally divided, 4 votes for the school and 4 votes for the parents. Since the last Appellate Ruling was for the parents, that decision was not overruled.

                                                                     

I will update with more analysis links and will provide my own analysis at a later date, so check back.

N.Y. Times

SCOTUS Blog

Jurist.com

Teacher Suing to Carry Gun in School

Sort of a shocking story out of Oregon yesterday:

MEDFORD, Ore. - High school English teacher
Shirley Katz insists she needs to take her pistol to work because she
fears her ex-husband could show up and try to harm her. She’s also
worried about a Columbine-style attack.

But
Katz’s district has barred teachers from bringing guns to school, so
she is challenging the ban as unlawful, since Oregon is among states
that allow people with a permit to carry concealed weapons into public
buildings.

“This
is primarily about my Second Amendment right and Oregon law and the
simple fact that I know it is my right to carry that gun,” said Katz,
44, ...

          Continue Reading.

I almost don't even know where to begin with this. For one, she cites the Second Amendment in support of her claim. Really? After Garcetti, teachers in the employment of a public school barely have First Amendment rights! That is a pretty ridiculous argument. There are so many reasons why the government would have a compelling interest in limiting her Second Amendment right to bear arms that I am not even going to get into them all.

Next, if we say schools are a safe environment for kids (and we do), why is she worried about her ex-husband somehow breaking into the school and bullying her. What is that saying to the parents of the community? This school is so unsafe that I need my own personal weapon to protect me ... but please, continue sending your children.

                                                                 

Finally, I have to seriously question the fitness to teach of any individual who would want to bring a gun into school. What is the purpose of a gun in this situation if not to kill people? The gun she intends to carry is pictured and if she ever brought that to school, as a principal or superintendent I would immediately fire her.

More on Board of Education of the City of New York v. Tom F.: Oral Argument

As promised, here is a little more on the Oral Argument at
the Supreme Court in the case of Board of Education of the City of New York v.
Tom F.

                                                                            

Jim Gerl's Analysis at the Special Education Law Blog:

When the oral argument began,
Justice Kennedy left the Courtroom. Apparently he recused himself from the case
and will not take part in the decision. The most active questioners were
Justices Alito, Scalia and Chief Justice Roberts. Souter and Ginsburg asked a
few questions, and Bryer, Stevens only asked about one area each. Thomas said nothing,
although at one point he and Bryer had a very polite private conversation for
few moments. I was more surprised by their civility than anything.



The thrust of the questions from Alito, Scalia and Roberts to the school
district attorney concerned what purpose could be served by reading the statute
to mean that Congress meant to require that a student with a disability be kept
in an inappropriate placement for just a short period of time.



The questions that Alito, Scalia and Roberts asked of the parents' attorney and
the Solicitor General (who argued in favor of the parents' position) centered
on whether the language used by Congress was really ambiguous and whether the
intent of Congress was to keep "well-healed" parents who have no real
intention of putting their children in public school from obtaining
reimbursement.

Read More ...

Oral Argument Transcript: Here



Legal Podcast by Ruth
Colker a Professor at Ohio State. Audio.



Debra Cassins Weiss at
the ABA Journal thinks the court
is leaning to denying parents the tuition reimbursement as many wealthy parents
would send their child to private school anyway.

PBS Newshour Analysis by Marcia Coyle (Video & Audio
Available).



****



Also, Justice Kennedy recused himself from the oral arguments and the case.
Combined with a court official's heads up to an artist, this is spurring rumors
of an imminent departure from the bench. Here is the blurb in Legal Times.

Kennedy recused himself in the Tom
F. arguments, quietly slipping out of his chair and out of the courtroom in
the short lull between the two arguments. Justices very rarely give
explanations for recusal and the reason behind Kennedy's decision to recuse in
this case was not widely known. A Court official gave a friendly heads-up to an
artist starting a courtroom sketch before the justices took the bench, telling
her to be sure to draw Kennedy during the first hour of argument.

First Amendment Notes

Couple of school related First Amendment notes to pass along.

First, the Supreme Court this week denied review of the Mayer v. Monroe County Community School Corporation Case. The Education Law and Policy Blog has more on the details of the case. I am sort of disappointed the Supreme Court denied this case. Following Garcetti v. Ceballos we really could use some more clarity on the free speech rights of teachers related to their employment. The Supreme Court passed on this opportunity, but let's hope they take another in the near future. There is sure to be plenty of cases emerging in the courts when a teacher can be fired for off-hand and everyday comments like "I honk for peace."

Second, Mitchell Rubinstein at the Adjunct Law Prof. Blog has the scoop on the E.D. of Missouri in the 8th Circuit upholding a school's ban on wearing items related to the Confederate Flag (B.W.A. v. Farmington R-7 School District). This is not the first court to hold this way, but it is significant that in the wake of Morse v. Frederick ... nothing really seems to have changed. But, perhaps something is changing. This interesting quote is how Mitchell ends the entry:

Recently, there seems to have been an increase in First Amendment
student rights litigation. A pattern seems to be emerging in the case
law, including the recent Morse v. Frederick decision, where courts are
essentially applying a balancing test-balancing the reduced First
Amendment rights of students against the need to prevent a disruption
and prevent disruption of vulgar material. This type of balancing test
is no different than in other areas of constitutional law. In fact, it
bears resemblance to the Pickering balance test in public sector First
Amendment employment cases without the public concern requirement.

I am not sure I totally agree ... yet anyway. Traditionally, the First Amendment for student speech rights concerning on-campus speech has followed a series of steps, with each step asking a slightly different question which would allow the school to regulate. If a student could survive all those steps, the speech was protected and the school could not regulate. At the end of that series of steps was the Tinker v. Des Moines disruption standard. Generally, if the speech could be considered disruptive, the school could regulate. That series of steps seems to me to still be very firmly in place.

However, I will agree with Mitchell on this point. Recent student First Amendment cases have been less explicit about how they passed through the series of steps than ones in the past have been. Recent cases, including Morse to a degree, have been simply jumping to the step in the multiple part test that is crucial to determining the outcome without providing a full explanation of how they arrived there. Typically, the author of the opinion briefly mentions the "trilogy" (now a quartet) of Supreme Court cases (even though Hazelwood and Tinker almost never apply to the same case) and then goes immediately to the issue of law he or she thinks is crucial to determining the outcome. Once a series of cases is written this way, it can quickly become a trend as Justices look to recent precedent not only for the law but also in how to write the opinion. Thus, the full scope of the student on-campus First Amendment multiple-part test is lost and it can appear to be something akin to a balancing of disruptions (that of the school and that of the First Amendment).

More Economists Suggesting Greater Investment in Education

My daily reading brought me across another interesting article today related to education and economics. In George Will's Washington Post Editorial today, he has a profile of the young economist Austan Goolsbee who is both an economics professor at the University of Chicago and an advisor to the Sen. Barack Obama campaign for President. Other than being an interesting article about a young economist with a very bright future, it is relevant to this blog because of this:

In 1980, people with college degrees made on average 30 percent more
than those with only high school diplomas. That disparity has widened
to 70 percent. In the same year, the average earnings of people with
advanced degrees were 50 percent more than those with only high school
diplomas; today, it is more than 100 percent.

The market is shouting "Stay in school!" and Goolsbee's conservative colleagues at Chicago
say a high tax rate on high earners is "a tax on going to college."
Conservatives say: Don't tax something unless you are willing to have
less of it. But Goolsbee says: Conservatives often exaggerate the
behavioral response to increased tax rates. The solution is to invest
more in education, which will raise wages, reduce inequality and move
toward equilibrium. The GI Bill was, he says, so prolific in
stimulating investment in "human capital" -- particularly, college
education -- that for a while the return on it went down relative to
high school.

This is the second influential economist in less than a month to laud the economic benefits of education, as you will remember Fed. Chair Ben Bernanke did so not long ago. While the simple statement that "education is a good investment" is repeated time and again, these types of recent statements by Goolsbee and Bernanke signal the possibility of a shifting view toward national and state investment in education as a long term profitable enterprise for government. How such a shift in economic views toward education's economic benefit on society will affect education in the short or long term is unclear, but given the relative importance of such economists on the fiscal allocations of this country ... it cannot hurt.

Search and Seizure Poll

Scott McLeod's recent post at Dangerously Irrelevant, which I linked to yesterday, got me wondering how people perceive the extent of searching going on in schools. So, I thought I would ask you ... what do you think?

Poll:

School Administrators Taking Search & Seizure too Far?

Great post today at Dangerously Irrelevant on what the Fourth Amendment should mean to school leaders. First, Scott lays out all the ways that we are or can be monitoring our school children's every move in schools. Then, he presents an interesting question of just how frequently do school administrators trample on the Fourth Amendment in the name of school safety? I, like Scott, believe it happens far too often and is something that educational law instructors need to focus on more heavily when teaching about search and seizure in preparation programs.

Alcohol Testing at Carmel Before Games

I came across this article and found it to be very
interesting.   Carmel High School is now
testing students for alcohol use before games.  
According to school authorities, there has not been an increase in
alcohol problems at the football games. 
They are not testing students when they have a reasonable suspicion of
alcohol use, but instead they are testing all
students before entering the game because Carmel wants to utilize the
technology that is available to them.   It
is possible that these breathalyzer tests abridge the students’ Fourth
Amendment rights and constitute an unreasonable search.

Here is a link to a Fox 59, Indianapolis story on the Carmel High School Breathalyzer testing. Link

                                 

Guestblogger: Jennifer M. Hesch, Associate Instructor & J.D. Candidate '08, Indiana University

Bd. of Educ. of the City of New York v. Tom F.: Oral Argument Today

The Supreme Court will hear oral arguments today in a special education case regarding public school tutition reimbursement for private school tuition in the case of Board of Education of the City of New York v. Tom F. As with many cases in special education, this one is somewhat complicated and relies heavily on the langugage of the Individuals with Disabilities Education Act, particularly 20
U.S.C. § 1412(a)(10)(C)(ii). Basically, in question is whether or not a child must actually attend a public school placement (give it a try) before he or she is entitled to private school tutition reimbursement from the public school. The Second Circuit has already ruled in favor of the parent. School groups are claiming it would put an additional burden on already tight special education funds while advocacy groups are arguing the provision of such reimbursement is necessary to better serve special education students.

                                                           

It should be an interesting case.

A full brief of the case is provided by the Legal Information Institute Bulliten (who did a very nice job and we appreciate the service).

And, my friend Jim Gerl at The Special Education Law Blog will be at the Supreme Court tomorrow and will have analysis afterward, so be sure to check his site.