Edjurist TV Episode 6: Kentucky School Finance History

I was asked to present this morning on the history of Kentucky School Finance, the Rose v. Council for Better Education case, and the Kentucky Education Refom Act here at UK. So, below is the presentation in Episode 6 of Edjurist TV. It is narration over a Prezi.

Sources:

William H. Hoyt, An Evaluation of the Kentucky Education Reform Act

Debra H. Dawahare, Public School Reform: Kentucky's Solution, 27 U. Ark. Little Rock L. Rev. 27 (2004).

More Data Needed: State Special Education Due Process Systems

The latest 50 state (even then it was only 44 state) data on special education due process systems is from 2001.

Specifically, I wanted to know the number of states running two-tier due process systems (and maybe even make a pretty map for the blog). But, no data. In 2001 it was in the teens, but dropping. Where is it now? I'm not sure anyone knows.

Eileen Ahearn, who has done fabulous work in the past, did the 2001 study in which she sent a survey out to the 50 state directors of special education. That report was under the auspices of Project Forum, in conjunction with NASDSE, who I am sure would love to partner to do the study again if anyone was interested. I'd even offer to provide assistance because I would really like more data on these systems. 

AERA Law and Ed. SIG Open for More Presentations

Just talked with the Law and Education SIG program chair and she confirmed that there is a lot more room in our program for more proposals. So, with the week extension, I am recommending that you should submit something to our SIG - or, alternatively, you should tell your graduate student friends to submit (they could win an award!).

AERA Proposal Deadline Extended

For those of our readers working furiously to finish a presentation proposal by 11:59 P.S.T. tonight for the 2010 AERA Annual Meeting in Denver, according to the AERA website, you now have until July 22, 2009 (one week from today).  Procrastinators (like me) rejoice! 

Indiana's School Finance Adequacy Ruling

About a month ago, the Indiana Supreme Court handed down its decision in that state's education finance adequacy litigation.  The opinion is here.  In the case (Bonner v. Daniels), the plaintiffs claimed, in the alternative, (1) that the state constitution's Education Clause imposed a duty on the legislature to provide a certain level of quality education, and that this duty was not fulfilled by the current system; (2) that the state constitution established a fundamental right to education, and that this right was abridged by the current system; and (3) that the current system violated Indiana's Equal Privileges and Immunities Clause (the state's version of the Equal Protection Clause) due to unequal expenditures. 

The trial court granted the state defendant's motion to dismiss for failure to state a claim (under Indiana's version of Rule 12(b)(6)), and the intermediate appellate court reversed the trial court.  The state Supreme Court, however, agreed with the trial court, holding that, because the state constitution's education clause contained no quality-based language that the judiciary could use to enforce a constitutional duty to provide a certain quality of education, no relief could be granted on the plaintiffs' claims.  The court also held that, because no rights-based language accompanied the education provisions of the state constitution, no fundamental right to education existed under the constitution, and therefore, the complaint's equality-based claims were also dismissed. 

The most interesting aspect of this case is that, although the Indiana court joined the minority of state courts in dismissing the adequacy claims on the pleadings, the court did not explicitly do so on separation of powers grounds, as the others did.  Instead, the court appears to have lifted the "no judicially manageable standards" prong from the political question doctrine test in Baker v. Carr and used it as a means of evaluating the legal sufficiency of the claim itself.  If the court had applied the federal political question doctrine, it would not have mattered whether the complaint had stated a valid claim because the political question doctrine counsels judicial abstention even from valid, well-stated claims due to separation of powers concerns.  The Indiana court has apparently chosen to focus on the weakness of the language of the education clause, rather than its commitment of discretion to a coordinate branch, as the basis to deny review. 

Good analysis of Richerson and Blogging in the Workplace

Check out Ellen Simon's great analysis of the recent Richerson case, which I wrote about here, and general issues with blogging in the workplace.

since the law is quite undeveloped and the waters uncharted in this area, both employers and employees need to use common sense and tread carefully.

She also links us to Paul Secunda's new law review on Blogging While (Publicly) Employed.

H/t @NancyEH

Leadership Day 09: Ignorance is Legally Unacceptable

It's Leadership Day 09, details here. My post is simple. Ignorance of student used technology is legally unacceptable. 

On Thursday I ran a manifestation determination simulation in my special education class. The fact pattern had a student threatening a teacher and school via twitter (see threat here). Because my future school administrators did not understand the basic elements of the technology, they made a crucial error. Some of them thought the @queenters posts were someone else speaking, not Nordeer (the threatening student). They were making decisions about a student's future, and relatedly the safety of the school, with knowing ignorance and did not bother to try to understand the technology first before they exercised policy-making authority. My students admitted this early in the meeting: "I don't know anything about Twitter" was a common statement. Yet, we plowed forward into the MD hearing without taking the 5 minutes to understand the basics.

Unacceptable.

Besides putting student and teacher lives at risk and incorrectly deciding the future of the special education student, my students acted recklessly in proceeding while knowing they were ignorant of the technology, which in many jurisdictions may put them outside the scope of state immunity provisions. So, technology ignorant administrators are not only putting their school at risk, but are also potentially putting themselves and their families at risk. 

I have a class full of very good students who will all be very good school leaders in the near future. In the past this cohort has shown they really value technology (they are avid google docs users as a collaboration tool, for instance). But, we educators have fundamentally accepted our ignorance of the technologies that students are using. This lack of literacy in an area where students are so literate is legally unacceptable and can have some really rough ramifications.

There are a whole lot of fantastic reasons for school leaders to understand and use digital technologies, and folks all over the world today are articulating those. School leaders, please become technologically literate for those reasons ... but, if you need a little extra incentive, know that if you don't learn it, it might cost you your job or your house.

AERA Deadline this Wednesday

The AERA deadline for proposals is this Wednesday, July 15. AERA is in Denver next year, which should be fun. Please submit to the Law and Education Special Interest Group.

"National" Standards--Part III

Okay, now it seems that we MAY get a "national" assessment to go along with our "national" standards.  According to this article in Education Week, it appears that the Department of Education has "set aside" up to $350 million dollars that is apparently earmarked to assist the states in developing "common assessments" (though talk is indeed cheap in this context).  No information yet as to how these "common assessments" will be developed, but the process for developing the standards themselves might shed some light.

Under the process as currently conceived, the National Governors Association and the Council for Chief State School Officers are jointly coordinating the effort, but they have named several other parties to do the initial drafting, including the College Board, Achieve, Inc., and ACT, two of which are actually testing companies, as mentioned in my prior post.  Once the initial drafting is done, the standards will be critiqued by a panel of designated experts, including representatives from academia, state school leadership, and the national professional organizations for both math (NCTM) and language arts (NCTE).  There is also a new website allowing one to follow the process. 

That's the good news.  The bad news (if you are into centralization of education policy) is that four states have already stated that they will not adopt the standards (see here--subscription required).  This is before any content of the standards is known.  Once the content of the standards comes out, it seems likely to me that several other states will have problems with one or more portions of the standards, either due to over- or under-inclusiveness.  You know the old joke that a camel is a horse built by committee?  Standards are never promulgated in any other way.  It is the states' prerogative whether or not to adopt the standards, and nothing except a "memorandum of understanding" prevents any state from opting out after seeing the standards. 

It seems that the same will be true for any "common assessment" developed in this manner.  Do we really think that states performing poorly on any common assessment will not find a way to get out of it?  Which brings me back to my original point, which is that a set of standards that is not binding through a requirement in positive law that states abide by them, or through pegging state supplementary funding to results on a common assessment, is merely a set of suggestions, not standards. 

If we are really serious about this, isn't it time to start thinking about getting Congress involved?  That is, if it is a good idea to have common national standards and a common national test, it seems that federal law is the best way to accomplish it.  No person who supports "national" standards could possibly object on "local control" grounds to federal standards.  The process could even occur in much the same way (with the NGA and the CCSSA, as federal designees, spearheading and the already named experts developing and critiquing the standards). 

However, the end result, once passed into law, would not be a set of suggestions, but a set of actual standards--the binding kind.  The kind we actually have to meet.  These would be federal standards, AND national standards.  If backed up by a rigorous federal test (mandatory NAEP anyone?), we could then make meaningful comparisons of state outcomes, and we might even save the states a lot of money that would otherwise go to test development.  To me, this would be a vast improvement over the extremely expensive (and yet underfunded), confusing, and frustrating half-measures of NCLB. 

Detroit Inches Closer to Bankruptcy

Detroit Public Schools overseer is meeting with an ex-bankruptcy judge today to talk it over. My Chapter 9 background here. Was hoping we didn't need to use that. 

H/T Linda704 via Twitter

"National" Standards Part II

Recently, I noted that a new move is afoot to develop "national" (i.e., NOT federal) standards for high school language arts and math. Here in this second post on the topic, I consider more deeply the question of accountability. Our readers no doubt are aware that we have had "national" standards in language arts, math, and at least five other subjects for years. Unfortunatley (or fortunately, depending on your perspective), these existing national standards have never been viewed as very important. This could be because they are very generally stated (and thus not very useful on the ground), or it could be because they are just flat-out poor standards. However, I believe that the main reason that state education agencies have basically ignored the existing "national" standards is because they can. That is, none of the existing national standards is backed up by any common accountability measure, and therefore, the state education agencies understandably do not see them as binding in any way.

This point brings me to the new push for more "national" standards in two subjects.  The development of these standards apparently stems from the conception that, among the states, students are not being asked to achieve rigorous enough outcomes, and as a result, we are falling behind our international peers. But I fail to see how this conclusion derives from a lack of "standards" at the state level. For at least a decade, most, if not all, states have published and refined specific curricular "standards" for each grade level, and many of these, AS STATED, are quite rigorous.  It seems much more likely that the conclusion derives from a lack of rigorous assessment targets, and the resulting lack of any meaningful common accountabilty for achieving rigorous standards. Many commentators have pointed out that the main flaw of NCLB (our only existing "national" accountability system) is that the law allows the states to determine for themselves the meaning of "proficient" (the all-important holy grail of educational attainment) and how to measure it.  The new "national" standards aparently will do nothing to fix this glitch, as there is no accompanying movement for a "national" test or other assessment, and there is no indication that these "national" standards will be anything other than optional. 

So, what does this mean?  If history is any guide, it means that we will spend a lot of money promulgating and publishing these new standards, forcing teachers into staff development sessions to learn them, translating them into layperson's language for parents, and ordering new textbooks reflecting them, but we may not see any benefit from them, and more importantly, we may not even see them actually taught in anything other than a token way.  Without aligned assessments, any new "standards" are mere suggestions to change what we are already teaching.  But change is expensive.  It will not occur without a catalyst, and like it or not, assessments accompanied by consequences have thus far been the only meaningful catalysts for system-wide curricular reform in education.  We can argue about the value of assessment-based accountability, but I fail to see how "national" standards could ever succeed without it.   

Because Boys Hunt and Girls Get Married?

One of the really disturbing trends of late is the movement back toward segregated schooling by gender, thanks to loosening of regulations by the Bush administration, which I have said before is probably unconstitutional. So, I am happy to report, thanks to a tip from Kevin Welner, that the ACLU of Alabama was effective in ridding 10 school districts of single-sex classes. Here is the rationale offered by one of the districts:

"a writing prompt for a boy may be what place in the world he would most like to go hunting or drive on a race track where the girls may write about their dream wedding dress or their ideal birthday party."

Thankfully, the district has agreed to end this practice. Unfortunately, there is still a lawsuit pending on the same issue in Kentucky. But, I do sort of hope that one of these cases makes it to at least the appellate level so we can reinforce the notion that segregated schooling is inherently unequal.

Outliers = Dangerous

I planned to pen some long articulate criticism of Malcolm Gladwell's Outliers, but I'll leave that to my good friend Jon Becker, since we seem to be pretty much on the same page here.

My bottom line, as I tweeted, is that this book is a mile wide and an inch deep and, as such, is really dangerous. This book should be treated more like fiction than nonfiction, in that it should not be the basis of any policy decisions.

Rather than examine his methods, as Jon has done, I'll just examine his conclusions.

First, keep in mind that Gladwell is out to sell books, and that's fine. He is good at it and that generates speaking fees, and I am sure he makes a good living. He is, in effect, Tom Friedman in a different form. A good storyteller telling a story that we are primed to hear.

But, that's the dangerous part ... that we are primed to hear this story. Fundamentally what Gladwell is saying is that cultural differences and opportunities are significant and it impacts people's ability to achieve success. If you stopped right there, that idea alone is extremely dangerous. One group, Chinese students with a heritage in rice fields, are culturally more prepared (careful to not say better) to achieve at higher levels on math. Let's just assume for a minute that this theory is correct. Stop and think of the implications of that. One group is programmatically better than others. What does that call to mind?

Well, rather than going there (nor will I talk about what he said about Kentucky), let's talk about KIPP, rice patties, and Native Americans. What Gladwell is saying is that there is fundamentally something nonacademic in poor, inner city, predominately black and brown lifestyles. KIPP "recultures" these students into an academic culture and basically pulls them out of the cultures they were from. These students go on to achieve well in high school, enroll in college and wind up in middle class, suburban lifestyles. What could possibly be wrong with that?

Well, were this a new idea, I'd give it more consideration, but it is not. We did this in the United States already, several times actually. In fact, we have been having this exact same battle for a very long time. I'll let Andrew tell you about the U.S. government education policy of reculturing. But it is not just the official reculturing of Native Americans, this was also the debate between Booker T. Washington and W. E. B. DuBois in African-American educational history. This "success is tied to cultural opportunities idea" is not new and in the past it has had some major impacts, both positive and negative.

Anyway, I am not going to get into that discussion other than to point out that Gladwell is not really saying anything new, he is just retelling a centuries old story in a very modern package with Bill Gates as a main character. For instance, Gladwell assumes that Bill Gates is successful and Christopher Langan is not. Why? They both seem happily married and have some acres. Both have libraries in their house -- does the fact that Gates' is organized in oak bookshelves really make the difference? And, what, exactly, makes Robert Oppenheimer a success? The fact he built the most dangerous weapon in human history? 

What I am saying is that just because the storyteller tells a good story, it does not mean the story is good or that the story's assumptions are accurate. There must be a MUCH more serious conversation about such things before we run off and start changing policies. Some of that conversation needs to happen in the scholarly world, as Jon concludes, and some of that needs to happen in other places. 

But, just like we don't need to change foreign relations with China because Tom Friedman says so, we don't need to be changing our schools because Malcolm Gladwell says so. Let's not rush to judgment here. Gladwell's positions are extremely dangerous and it has taken us decades to work those out of the education system. Let's not put them back in one fell swoop. 

Careful with those files ...

The digital age makes everything so much easier - but that can lead to really bad mistakes. Like this teacher in Elk Grove Unified Sch. Dist. (same one as in the Pledge case) that included 6 seconds of her sex life on a DVD sent home with kids. Here is CNN video via Scott McLeod.

The point is that mistakes happen, so keep your personal life extremely separate from your professional life. It is inefficient for personal and professional to not share devices, but that inefficiency may keep mistakes like this from happening to you. Maybe someday we'll get to the point where districts provide professional devices, like companies do laptops, so as to avoid this issue.

My Favorite Holiday

Just wishing everyone a spectacular July 4. It's pouring down rain right now here in Illinois, but it doesn't spoil my enthusiasm at all. I got a little fishing planned for later today and fireworks tonight.

On this July 4, everyone should remember our founding fathers and present day soldiers, but give a little time to contemplate over our educational founding fathers as well and the events that shaped our particularly American system of education. Spend a minute to research education in your state or in your own school. For all its faults, we have built a beautiful and revolutionary education system here in the United States and that took the labor and dedication of millions of our fore fathers who believed in the same dream as those that signed our Declaration of Independence.

Bankrupt Schools - Implications

Until this year, I have never really heard of a school district going bankrupt. It's an extremely rare event. But, Detroit may be left no other option and several schools in California (2) are telling the state they simply cannot pay their bills anymore.

We don't hear about school bankruptcy normally for several reasons. Schools usually have rainy day funds, they usually compensate for lower budgets with cuts, and if everything else goes wrong the state may well bail them out. But, rainy day funds are exhausted. Staff and programs have already been cut to bare minimums. And, some states (California, Nevada, Florida, etc.) are in worse shape than the schools. In effect, there are no more fallback plans. Bankruptcy is real option.

So ... can schools, as public entities, go bankrupt? Yes - and here are some details:

Chapter 9 of the Bankruptcy Code provides for municipality bankruptcy, which under the definition expressly includes school districts. Not surprisingly, this provision was put in place during the Great Depression. But, use of this provision is very rare. Since its passage, it has been used less than 500 times. Compare that to the over a million Chapter 7 and 13 filings that are going to happen this year alone.

Here's the deal with Chapter 9, though. There are serious federalism problems when a federal court, acting under federal statutes, seeks to tell a state entity how to restructure its debt. There is far less flexibility than in personal or corporate bankruptcies for restructuring. For instance, schools can't just stop offering math. They can't sell off a division, like GM with Saturn. The federal bankruptcy judge can't tell the state to sell property. There is some flexibility with union contracts, but those are more procedural than substantive. In short, there is not a heck of a lot a court can do in these situations other than provide protection and negotiating power to municipal debtors against creditors - who, together, sort of have to work it out. If they don't, though, there is less protection for creditors against public debtors than against private debtors.

What happens is that after failure of good faith negotiations between the creditor and debtor, the debtor (school) must offer a restructuring plan to the court. Unlike other bankruptcies, the creditor is not permitted to offer a counter-restructuring plan (because we don't allow private entities to dictate public financial choices). The judge then reviews it for legality on several aspects and, if legal and not overly unfair to the creditor, will confirm it and the school district's debt will be discharged as articulated in their restructuring plan.

Really, what schools get here is time because bonds and other general debt do not have to be paid during the court proceedings, which could last a long time. And, while they probably can't just write off debt like under Chapter 7, the restructuring can put off payment of that debt for a while. The beauty is that schools don't really have to change all that much as long as they propose a plan that conforms with all the bankruptcy laws. If they do, federal judges and creditors are not in a strong position to deny that plan. So, there are certainly short-term financial benefits to filing.

The downside, though, is that school districts have credit ratings just like individuals (instead of numbers they use letters). This is for the bonds that schools get for buildings and repairs and whatnot. Of course, bankruptcy will absolutely destroy a credit rating and these schools will have serious trouble getting acceptable loans in the future. For instance, the damage was so bad to the 1991 bankruptcy of Richmond Unified School District in California that it was forced to change its name and it is still trying to get out from under millions of dollars of debt nearly 20 years later. Going down to a default credit rating will absolutely destroy a district's ability to obtain money.

So, as we see more and more school districts start to consider the nuclear option of bankruptcy, keep in mind the far reaching implications it will have on the kid's kids in that district. I would hate to have to be the school leader that pulls the trigger on one of these filings.

Do Students Dislike Education Law Classes? Evidence from Twitter

Playing around with Twitter tonight. Signed up even (you can follow me at edjurist and/or if you are reading this I should probably be following you, so please tell me you handle in way or another).

Anyway, ran a search for "education law" and "school law" and this is what I got (representative).

I sort of like Twitter because of the personal and honest nature of the posts. But, if this is what people honestly have to say about school law courses, it is a little concerning.

I really don't get why school law courses have to be boring. That is certainly their reputation, and perhaps it is deserved, but it is totally unnecessary. There are so many cool things out there related to education law. Yes, there are stuffy cases ... but the stuffy cases are about strip searches and the like. There are YouTube videos to watch (or make), lots of fun activities, lots of interesting news clippings ... there is just a lot of interesting stuff that, if presented properly, simply cannot lead to boredom.

So, that's one of the reasons I joined twitter. I come across interesting school law related stuff all the time, but most of it is not post worthy on this increasingly scholarly oriented blog. But, that stuff is perfect for Twitter. So, hopefully we can get some other school law profs tweeting and we can collectively take the edge off a little.

ELA's Perspective

This is encouraging from ELA.

Administrator, Attorney and Professor perspective on Forest Grove.

Ditto for Safford v. Redding.

A Symbolic End to Bush Era Symbolism

Something about this just makes me feel good inside and I thought I would share:

I hated those damn schoolhouses. Nothing says "we're a joke over here" like fabricating symbolism and the Bush Administration was really good at such blatent fabrications. From the name of the law, to "scientifically based research," to the 2013 deadline, to these damn schoolhouses. Good riddance schoolhouses ... may I never think on you again.

h/t Tom Panarese

Discrimination is Delicate - Leave This One to Lawyers

Today we got the ruling from the Supreme Court in Ricci v. DeStefano - the case that people only really care about because the Supreme Court overturned the Second Circuit panel on which nominee J. Sonia Sotomayor sat. The point I want to make is not the one that you will see splashed all over the papers or cable news in the coming months, but instead I want to use this opportunity to reiterate that discrimination is an extremely delicate topic - and really, one best dealt with by lawyers.

The New Haven Fire Department thought it was doing the right thing in tossing a test that seemed discriminatory against African Americans. Turns out, as the Supreme Court has ruled, it was discriminatory against Whites and Latinos. The question here was whether in trying to reduce a disparate impact against one racial minority, the employers in fact committed disparate treatment Photocredit: TheeErinagainst other racial groups. Really, this is can't win territory here and the best legal route may not, and probably does not, correspond with the best ethical route. Ethics aside, even then it can be extremely difficult to know what the proper legal route is as we swing 5-4 in case after case from the Supreme Court in this area. 

So, I am going to go against my normal tradition today which encourages school administrators to make their own informed, best legal judgments and recommend that when it comes to issues of discrimination in the workplace ... call your board attorney.

P.S. - Know what today's decision makes me think about, and question? - the discrimination inherent in merit pay systems. Today's decision may quell some of those fears (or heighten them, as we know that future Justice Sotomayor would go the other way).