Should Individuals with Past Drug Convictions be allowed to work in Schools?

This week the Ohio Supreme Court upheld the constitutionality of a law that required background checks for school employees and the firing of individuals who had been convicted of certain past crimes.  An employee of the Cincinnati school district who was fired under the law for a drug trafficking offense 32 years earlier brought a challenge to the law in Doe v. Ronan.  The plaintiff in this case earned his college degree after spending three years in a correctional facility for his 1976 conviction. He then became a drug-free counselor and eventually a hearing officer for the Cincinnati Public Schools.

The court declined to find that the law was unconstitutionally retroactive or that it impaired the employment contracts of school personnel.  Even though Doe had been employed by the district for 11 years, the employment contract at issue in this case was entered into in 2008, eight months after the passage of the 2007 background check law. Thus, the law's application was not retroactive.  It also did not impair the contract because the background check and employment disqualifications requirements are implied into the contracts made under the laws of Ohio for the relevant school personnel.

I think this is an interesting decision because the plaintiff's situation, as an 11 year employee of the district who lost his job because of a new background check law that found something he did 32 years ago, can generate a lot of sympathy.  Yet, if the legislature says individuals with former drug convictions cannot work in the schools, then they cannot.  

This case is a little more nuanced than I just described, though, because the law has a provision for individuals to show the district they have been rehabilitated, which would then allow them to be hired.  But this provision was not applicable here because drug offenses did not qualify and the administrative regulation that might have allowed this type of consideration was not yet in effect.

Personally, I'm in favor of the rehabilitation clauses that give an individual like Mr. Doe the ability to demonstrate that he is not a threat to students and that in fact he could make a good contribution to the district and their education of students in light of his experience and training.  But I also support the authority of the legislature to unilaterally decline hiring individuals who have committed certain crimes from working in schools. To me this case illustrates the need for thoughtful policy-making.  In so many instances laws that are passed have unintended consequences that seriously affect individuals like Mr. Doe.  The administrative process works to "fix" these problems but not in time to help someone like the plaintiff in this case who lost his job because of it.

Here is a link to the opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-5072.pdf

Value Added Evaluation Data and FOIA (State Versions, That Is)

Bruce Baker and Andy Rotherham brought my attention today to the issue of the public release of school data used in value-added teacher assessments (which are becoming popular, spurred by Race to the Top- Scott and my previous posts on the subject). This stems from a report out of New York today that the New York City Schools are set to release this value added data on 12,000 teachers ... tomorrow.

First, the basics. Public schools are public ... meaning taxpayer owned. Generally, then, the taxpayer owners (meaning the general public) have access to all the information produced and stored by these entities. In a democracy such a concept would make sense, right? Well, except when we are planning to bomb another country or when we are surveilling a criminal or when ... well, you get the idea, there are lots of exceptions. One other important point before we begin is that there is a federal Freedom of Information Act, but for this analysis we are concerned with state laws, as schools are state entities and school personnel are state employees. Here is a nice starting point for your state to get the basics.  

The exception at issue today is that of personnel information. They cover the gamut from very restrictive to very broad to non-existent. Let's start with Wyoming's quite broad protection against release of personnel records (Wyoming Statutes 16-4-201):

(iii) Personnel files except those files shall be available to the duly elected and appointed officials who supervise the work of the person in interest. Applications, performance ratings and scholastic achievement data shall be available only to the person in interest and to the duly elected and appointed officials who supervise his work.

Then there are some provisions in the middle. For instance, here's Delaware's relevant provision (Del. Code Ann. 29 - 10002): 

(1) Any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy; ...

Arkansas is another similar to Delaware. But, other states are more restrictive in their provisions. Take Georgia, for instance (50-18-72):

(5) Records that consist of confidential evaluations submitted to, or examinations prepared by, a governmental agency and prepared in connection with the appointment or hiring of a public officer or employee; and records consisting of material obtained in investigations related to the suspension, firing, or investigation of complaints against public officers or employees until ten days after the same has been presented to the agency or an officer for action or the investigation is otherwise concluded or terminated, provided that this paragraph shall not be interpreted to make such investigatory records privileged.

Other states, such as Illinois recently, considered adding such an exemption for public employees to their Open Records Acts. This story out of Illinois puts the number of states with some type of personnel evaluation exemption at around 35 - and without better data or time to investigate it myself, we'll go with that - meaning that perhaps 10-15 states may have no exemption at all for such records. 

Thus, even without considering the issue of value added data sets, in some states there is not even an opportunity to argue that such evaluation data is exempt. Therefore, before any teacher (or more likely union) argues that such data cannot be released they need to be familiar with their state's law governing open record exemptions.

Now, turning to the issue of whether raw value-added assessment data is exempt from public record laws let's consider a few different options.

Option 1: raw data contains information capable of linking to particular students = FERPA protects against release. But, putting FERPA aside ...

Option 2: raw data does not contain link to identifiable teachers (or students) = Grant open records request as no exemptions are likely to apply.

Option 3: raw data does contain link to identifiable teacher = probably release. Obviously this looks like the New York situation and the one Bruce and Andy were highlighting. However, the data is not an evaluation, it is simply raw data. That it affects an employee's future evaluation criteria is probably not relevant if the open records request is only for raw data. Obviously this is going to be the case most dependent on the statutory language. For instance Wyoming's inclusion of "scholastic achievement data" seems a good bet to open the door for exemption even of the raw data. Delaware's "relates to personal privacy" is a crack, but a small one and one I don't think most courts would extend such a amorphous concept to this extent. Georgia, Illinois and other states, though, would have no legal avenue available to block release. At best, the teacher or union might be capable of delaying the release. Given the fast-paced news cycles, though, and the lack of persistence among researchers, delaying the release even a few weeks might be good enough. 

Option 4: post-analysis, teacher-specific data leading to evaluation ratings = probably protect. This is where the easiest case is made to exempt the records, but still not in all states. If you are in a state with a personnel records protection provision, the evaluation analysis of the data is probably protected as I think most rational people consider job performance ratings to be personal in nature. This protection is not trivial, however, as working with the raw data is not a simple task and puts a much larger burden on journalists, researchers or other individuals requesting access. Obviously it is just much easier for them to publish the school's analysis and evaluation of the teacher. So, still not totally protected in this instance, but the easiest legal case to make as the statutes seem to imply, if not explicitly state, that such evaluations are protected. 

Option 5: I think it is possible to visualize a hybrid between Option 3 & 4 - or perhaps several (help me out Bruce as you know the data better than I do). The analysis of the value-added raw data would likely involve several steps, each of which would get us closer to protection as the data goes from unaggregated to aggregated to compared against previous years to compared against similar classes to graphed to assigned a rating code to translated to an evaluation statement. Where along that line of analysis protection begins ... well, that's the kind of question that takes decades of litigation. Each specific instance will be different, meaning there could be minimally 50 and potentially thousands of different scenarios possible as individual districts begin rolling out value-added systems.  

Okay, getting back on track then, this explains the New York story, for now anyway. New York has a mid-to-narrow exemption (see Section 87(2)) putting it somewhere between Delaware and Georgia (if I'm missing something, New York readers, let me know). Thus, as New York City's attorneys have concluded, the likely position is that the raw data should probably be released.

That's not the end of the story, though, for the union. Their next play, in the absence of a protective statute or regulation, is to attack the raw data as unreliable and thus (1) lacking a rational basis, (2) a violation of due process, (3) unconstitutionally vague, (4) discriminatory or some such effort. Remember, though, this is not an open records issue, it is attacking the facial validity of the entire value-added evaluation system (read the posts that Scott, Bruce, & myself wrote before). As Scott explained these efforts rarely win, but I kept the door slightly open if there is overwhelming evidence of statistical error. This is going to be an uphill battle, however, because the overriding public policy at play here dictates open government over privacy. That the rationale behind open government statutes is so clearly stated and privacy law is such a legal morass is not going to help this situation either.

Anyway, summarizing, I think the raw data is generally going to be made publicly open following FOIA requests. I think New York City is currently correct in their assessment that no exemption exists under New York's Freedom of Information Law. However, this is just my analysis after considering this issue for a single day and I want to caution against over reliance on my initial assumptions. A thorough analysis needs to be conducted of all 50 state policies, interpreting regulations, attorney general opinions, and previous case law. Further, data experts such as Bruce must assist the analysis with a complete understanding of each state's dataset and the possible links to both teachers and their evaluations within the datasets. Thus, there is still a lot of work left to be done. 

This is a legal frontier (another one of those enabled by technology) that most legislatures would not have contemplated as possible in enacting their open records laws. Thus, it is a great topic for us to debate further to inform future policy actions on open records personnel evaluation exemptions.

Sixth Circuit Applies Garcetti to Classroom Speech

Today, the Sixth Circuit issued an opinion in Evans-Marshall v. Board of Education applying Garcetti v. Ceballos to exempt the curricular and classroom speech of a non-renewed teacher from First Amendment protection.  I'll have more to say about the decision later, but on a first read, my initial impressions are that:

1.  The case ultimately presents a pretty straighforward application of the Garcetti holding, finding that classroom teaching and expressive curricular choices, as expression "pursuant to the official duties" of a teacher, is unprotected. 

AND

2.  The case should allow for a more definite (as opposed to hypothetical) inquiry as to whether the Garcetti rule makes sense, and whether it deserves to be rethought in the context of academic speech. 

The Sixth Circuit's slip opinion is here. 

Illinois School Finance Suit

I just received the pleadings on this, but school reform advocates last March filed a state constitutional lawsuit against the state superintendent, the state board of education, and the governor in Illinois.  The case is styled Carr et al. v. Koch.  This suit joins ongoing actions in Florida and California as another high-profile school finance challenge in a large state.  The plaintiffs have also secured for themselves the help of some big legal guns--Sidley Austin, LLP, a massive, Chicago-based law firm, is handling the case. 

Like the plaintiffs in the California suit, the plaintiffs in Illinois have (I think wisely) chosen to attack the state finance distribution system as not rationally related to a legitimate governmental objective.  The objective that most states trot out to justify their acquiescence in local inequalities in funding due to inequalities in tax bases is the tired old salve of "local control."  The plaintiffs essentially contend that this term has lost its meaning in the current world of standards, accountability, and NCLB, and I agree.  Currently, the case is at the motion-to-dismiss stage, and my understanding is that the state is grounding its arguments in the separation of powers, as most state defendants do in these cases. 

One thing puzzled me about the complaint's allegations.  The complaint states local property tax "rates" for school taxes alone as ranging from about 1.5% to over 6% per annum.  If this is true, then a homeowner with $100,000 of assessed valuation in a 6% district would owe $6,000 per year in just school taxes.  That just does not pass the laugh test.  I suspect that Illinois may have the same problem that Kentucky had before the Rose suit--assessing its property at wildly varying rates, none of which approach 100% of market value, leading to even wider disparities in revenues than even the published numbers would indicate. 

At any rate, if the figures hold up, there appear to be very wide disparities in funding levels in Illinois, and the system might be subject to invalidation under even a rational basis standard.  Keep watching this one!

Year Round Discipline?

Why a we doing this? 

It's dumb and probably not authorized under law. 

Here's the situation. No other branch of government is going to stop a school from expanding their authority in this way. It is just less responsibility on the police, parks, etc. In fact, mayors and other elected officials I am sure love when schools on their own and without funding take on additional responsibility. 

But, the way the law works, once you start taking on additional responsibility, it is very difficult to get rid of it. For instance, several years back, I railed against schools taking on additional responsibility for regulating off-campus speech. But, down the road a bit now, patrolling Facebook and whatnot is now largely seen as a core duty of schools. There was no money for that ... it was just something that schools decided to do on their own (and no one stopped them). And then schools have the gall to talk about not having enough funding to do these things. 

So, again, I'm begging you schools to stay out of this stuff. If the Legislature wanted you to regulate in the summer, they would tell you to and they would pay for it. Otherwise, it is not your problem. I get the arguments that bad behavior might translate into the school year, but that is never going to go away no matter how much you try to regulate. 

Stop it.

Integrationists vs. Choice Advocates in New Orleans

First, thanks to Scott for noting my article attempting to connect the post-Katrina reconfiguration of New Orleans schools to the post-Brown efforts in New Orleans 40 years prior.  Scott humbly failed to mention his own article that was part of the same presentation in New Orleans in January – I am told it will be posted in the near future, so stay tuned. 

Part of what my article attempts to do is place post-Katrina New Orleans in the broader narrative of efforts to deliver more equitable quality educational opportunities for African American students.  If one starts at Brown, that narrative begins with efforts at integration and is currently being dominated by efforts at increasing school choice, particularly through charter schools.  Where integration was about ensuring better educational opportunities for African American students by dismantling racially-identifiable schools, then choice is about ensuring better opportunities for African American students by dismantling failing schools.  

New Orleans represents an opportunity for choicers (I know it sounds a bit too much like “birthers” but it rolls so much more smoothly than “choice advocates”) to seize the flag of equal educational opportunity by implementing widespread choice (currently, more than 60% of students are in charter schools; nearly all schools in the district have district-wide open enrollment) in a largely African American district.  The recognition of this reality is apparent in the vehemence with which integrationists are fighting the post-Katrina New Orleans model. 

This summer, the Institute on Race and Poverty at the University of Minnesota and the Cowen Institute for Public Education Initiatives at Tulane engaged in a colorful, almost incendiary back-and-forth about the ability of the post-Katrina model to deliver for African American students.  Both seek to solve the same problem, but they could hardly disagree more about how to do so. 

[Links to the IRP Report - The State of Public Schools in Post-Katrina New Orleans: The Challenge of Creating Equal Opportunity and the Cowen Institute’s Response] 

In a nutshell, IRP criticizes the post-Katrina model as creating a separate and unequal tiered (and segregated) system of schools.  Specifically, the report criticizes the growing charter school sector for skimming the best students through a variety of practices.  IRP advocates for regionalizing the school system (i.e., erasing district lines among city and suburban districts) and increasing regional magnet options in order to provide more potential racial integration and broader choices for all.  Using IRP’s own words, “When charter schools are the exclusive instrument of school choice in segregated urban districts such as New Orleans, school choice produces substantial inequalities among public school students.” 

The Cowen Institute’s response is harsh, critiquing the IRP analysis as “often incorrect, selective, and misleading.”  It notes that racial segregation in New Orleans schools predates Katrina, that charter schools were proposed to replace a model that had been failing educationally prior to the storm, and that the IRP’s proposed solutions, though not objectionable, are politically unfeasible or unlikely to achieve the desired results. 

Although I certainly have my own opinions on this, what I find most fascinating is the vigor with which two institutions, both arguing on behalf of the same basic endgoal, are fighting this fight.  Reading the documents, the animosity among these two is palpable.  This turf war over the future of reform creating equal educational opportunities is unfolding right before our eyes within a single district.

Kiel on Hurricane Katrina and the Brown Legacy

Our own Daniel Kiel has posted to SSRN a draft of his forthcoming piece, entitled, It Takes a Hurricane: Might Katrina Deliver for New Orleans Students What Brown Once Promised?  Daniel presented this piece last January in a special session of the AALS Annual Meeting focusing on education in New Orleans after "The Storm."  You can download the full text of the draft here. 

Here is the abstract:

Presented as part of a program for the AALS Education Law section entitled “Five Years After Katrina: Access to Education,” this article places post-Katrina education in New Orleans directly in the line of education reform triggered by the decision in Brown v. Board of Education in 1954. The article agues that post-Katrina New Orleans represents the pursuit of the same goal pursued by the Brown plaintiffs: improved access to educational opportunities for students, most of whom are African American, not being equitably served by the status quo. The article then frames these two moments – the Brown decision and Hurricane Katrina – as inertia-jarring events in the history of New Orleans public education and compares the responses to these two hurricanes (one figurative, one literal).

Connecting the post-Brown and post-Katrina eras, the article focuses on themes common to both – state intervention in New Orleans schools and an increase in choice for students – and details the ways in which the response to one has shaped the response to the other. Looking at ways the city has learned from the Brown era and the ways in which the city seems on a path to repeating some of that era’s mistakes, the article argues that success or failure in post-Katrina public education will be impacted by the city’s post-Brown experience. Specifically, although the motivation behind state intervention is clearly different than it was during the Brown era, there remains skepticism about the role of the state in providing for New Orleans public schools.

Further, despite having made choice far more widely available after Katrina than it had been before, the potential for a return to a stratified system of schools – and the class- and race-based resentment such stratification engenders – could threaten the public support New Orleans public schools currently enjoy.

The progress of public education in New Orleans is important beyond the boundaries of Orleans Parish. Post-Katrina New Orleans serves as the pivotal proving ground for the use of increased choice and charter schools to provide more equitable access to quality education. With 61% of New Orleans public school students enrolled in 51 charter schools (both numbers by far the highest in the nation), post-Katrina New Orleans represents an opportunity for the choice movement to demonstrate success on a large scale. Success in New Orleans will lead to broader choice in struggling urban districts across the country. Conversely, failure to deliver improved access to quality education will reverse the current upward trajectory of the choice movement.

Given the stakes, the New Orleans public schools are likely to be among the most scrupulously evaluated in the coming years. However, as scholars and advocates begin evaluating this reform effort and continuing to shape the future of public education in New Orleans, it is imperative to recognize the ways in which the story that precedes the hurricane shapes and impacts the story unfolding in its wake. This article serves will help ensure that happens.

If reformers in New Orleans are able to focus on the goal of increasing access to quality educational opportunities, then the chance created out of the tragedy of Hurricane Katrina will not be wasted. It would be beautifully ironic if, thanks in part to a hurricane, the schools in the city whose segregated railcars gave us Plessy v. Ferguson could finally deliver on that elusive promise of Brown to provide more equitable access to quality educational opportunities.