Ed. Law Scholar Assumes Deanship of Harvard Graduate School of Education

James Ryan officially began his duties as the new Dean of the Harvard Graduate School of Education a few days ago. You can see the release naming him the new Dean here. His podcast upon starting the job is here. 

I am really excited to see his promotion and wish him the best of luck (frankly I am sort of happy to see HGSE finally employ a full-time law scholar). He is just the next in a long line of education law scholars assuming very high level leadership positions within the field of education in the United States ... and I think that is a very positive thing for all of us. Hopefully James will provide leadership not only to HGSE but to education colleges broadly who frequently look to Harvard for precedence. 

Making Sense of Evaluations in Higher Education

The University of Northern Colorado, where I am privileged to work, along with countless other institutions of higher learning recently (within the last five years) transitioned from paper and pencil evaluations to web-based ones. The utilization of technology for course evaluations offers a multitude of benefits: significant reduction in the use of paper, easier to compile data and run reports, less intrusive to instructional time, and students can complete the evaluation on their time. However, there is one significant problem – students are not completing course evaluations, at least those attending the University of Northern Colorado.

The last 15 courses I have taught produced an average return rate of 19%. The highest return rate I received was 53% and the lowest was 0% (twice). I realize the importance of teaching related to an individual’s job status varies from institution to institution. However, at the University of Northern Colorado teaching is typically weighted at 60% of an employee’s contract and all professors are expected to excel in the classroom.

Assuming the trends observed at the University of Northern Colorado are indicative of return rate trends at other institutions, I await a wrongful termination lawsuit claiming a professor was dismissed for poor teaching when only 20% of the enrolled students completed evaluations. Clearly, there are a number of issues associated with such a low return rate:

•  To ensure the validity of the findings, researchers will either strive to document the views of the entire population or employ a proven sampling procedure to survey a portion of the population. The current practice at the University of Northern Colorado is failing to capture the voice of the entire population and is not employing any defensible sampling method. Instead, it is conceivable that only extreme viewpoints are represented in an evaluation (“He is the worst/best professor I have ever worked with”).
• Regardless of the professor’s overall rating, the evaluations lack validity due to low return rate. If I had a 10% return rate and all of the completed evaluations rated me as an outstanding professor I am unable to make any conclusions from this feedback. What did the other 90% think?

I could continue that list of issues associated with a low return rate, but I prefer focus on the legal questions. Can a university legally defend a position that a professor is ineffective in the classroom if that conclusion is based solely upon student evaluations and the return rate is below 50%? What if an assistant professor is denied tenure and promotion by her colleagues due a lack of evidence of solid teaching when a vast majority of the evaluations are not being completed by students? I look forward to hearing what other institutions are doing to increase evaluation return rates and I will be interested to see the outcome of this eventually unavoidable lawsuit.

The Case of the Unwelcome T-shirts (14 t-shirts, that is)

As students head back to school this year school administrators are once again embroiled school dress code fiascos. From shorts that are way too short to pierced lips, today’s administrators are never far away from the latest fashion trend. It stands to reason that the most reasonable fashion choice for any student is the good ol' t-shirt. Today’s public school students rely often rely on t-shirts as a staple of a modern, yet comfortable wardrobe choice.

A case handed down this past spring by the 4^th Circuit US Court of Appeals could certainly be filed away in your First Amendment playbook as a typical dress code incident where reasonable school policies prevailed over an unreasonably dressed teenager, but a closer look at this case reveals just how time consuming even the simplest wardrobe infraction can become.

Candice Hardwick should indeed go down in the books as a student who was not only willing to challenge a school dress code policy, but one, who along with her parents, was relentless in doing so for four complete academic years. Hardwick, a middle school and high school student during the incidents that spawned the litigation, wore not one or two troublesome t-shirts, but ended up with a stockpile of at least fourteen controversial t-shirts. Most of the t-shirts bore the Confederate flag in some form and pursuant to past dress code judicial rulings favorable to school administrators in school districts where racial discord maintains a presence, these t-shirts were unacceptable for this public school setting. A portion of the shirts were protest shirts focused on the school administration. The dress code itself was standard fare for most schools and attempts by the parents to convince the school board to revise the dress code policy were unsuccessful.

Hardwick’s parents were insistent that the shirts displayed a pride in family heritage, yet school officials were able to cite recent racial tensions and incidents that clearly illustrated the need for additional improvement. The Court held the Tinker standard allowed school officials to forbid any shirt they could reasonably forecast would cause a disruption. Again, for legal scholars a case that, once seen in in its totality, seems like a First Amendment slam-dunk.

The lesson here is more than your first-year Constitutional law one. It illustrates the persistence of some students and their families to challenge school policies. Had the school administrators in this case not understood the concept of forecasting a “reasonable or materials disruption,” the case could have ended much differently. Instead of losing patience and sound judgment, the administrators wisely and consistently relied on the fact that any of the shirts worn by Hardwick would disrupt the educational process. The case is a glaring example of the types of stress even the most minor legal issues can place on school administrators. Imagine dealing with this student and her family over ten times, only to have her show up at school the next day with a new shirt bearing a new message, some critical of you and your job. In addition, imagine the impact that being the 't-shirt cop' can have on your overall relationship with school culture. Without much detail, it is safe to assume this one dress code situtation demanded a great deal of administrative time and attention - repetitively. Such discussions are necessary to encouarge democracy and maintain school order, but I speculate, can also become tiresome for the school leader.  The lesson here is short: the t-shirt, society’s comfy, reliable staple, can also be the principal’s worst nightmare.

Common Core (Predictably) Falling Apart

Politico reports today that Georgia has become the fifth state to withdraw from the Common Core standards project after fully understanding the additional expenses involved in administering the new standardized tests, as well as realizing the enlargment of the federal role in education that will come along with adoption of the Common Core.  Considering that other states are already considering opting out (including Florida, home of former Governor Jeb Bush, a big Common Core supporter), and counting the four states that chose at the beginning not to be part of the Common Core (which included Texas, the great driver of textbook content for the nation), the list is approaching death-spiral territory. 

I predicted this a while ago.  Essentially, the Common Core is "NCLB-light."  Great taste: The standards, from what I can tell, are consistent with the better state standards that exist.  The tests, also from what I can tell, seek to go beyond the overly formulaic and reductionist forms of testing that exist in most states today.  Less filling: But none of this matters.  Why?  Because teaching a more rigorous curriculum is harder, and therefore more expensive.  And testing in more authentic ways is more labor-intensive, both on the test-administration side and on the test-scoring side, and therefore much more expensive.  At present, standards development and test development are funded, but not test administation, scoring, and reporting, let alone teacher training.  And most importantly, no existing state education funding rides on the decision whether to adopt the Common Core or not. 

Putting aside its many, many flaws for a moment, NCLB's main successes (and it was successful in causing many school districts to finally start paying at least some attention to disadvantaged and minority students' test scores) came from the fact that it was enacted mostly as an amendment to Title I, meaning that the failure to adhere to NCLB would (at least theoretically) put at risk federal Title I funding, which is very substantial.  Many states hated NCLB (really, most states hated it), but they went along with it because there were consequences for noncompliance--the potential loss of lots of funding.  Not so with the Common Core, which is supported only by a (relatively small) set of grants, most of which have gone to the testing/textbook companies and their agents which have developed the standards and tests.  It is very easy to see why states are now beginning to say "No thanks."  This is a new set of more rigorous demands on instruction and assessment, decoupled from any real consequences for the states themselves for noncompliance.  I'm actually amazed that more states have not opted out yet. 

Standardization of curriculum and assessment (whether at the state or federal level) requires a coercive mandate.  In federal education legislation, that means coming up with a big enough pile of money to induce the states to act in the way desired in exchange for the money.  Congress is broken today, so I don't see that happening.  Common Core was probably the best that could have been done in this environment, and having a set of well-developed standards at least gives the states something they can adopt, adapt, and draw from, but I doubt it will go much farther than that when the other costs become apparent.   

The Lobato Ruling in Colorado

On May 28, 2013 the Colorado Supreme Court overturned a trial court’s ruling that deemed the state’s funding formula unconstitutional for failing to comply with the “thorough and uniform” constitutional standard. In fact, the trial judge referred to the state funding formula as “irrational.” The state Supreme Court, on a 4-2 vote (one justice recused herself due to potential conflict of interests), offered an extensive analysis of “thorough and uniform” and adequacy. Based on this analysis, the state Supreme Court ruled that the current funding formula meets the “thorough and uniform” standard and provides all students with an adequate educational opportunity in the state of Colorado.

Although I was extremely disappointed by this ruling – I had hopes that a more favorable ruling would have resulted in a repeal of the restrictive Taxpayers Bill of Rights (TABOR) – legally, I do not disagree with the state Supreme Court. The justices offered a defensible definition of thorough and uniform (“describes a free public school system that is of a quality marked by completeness, is comprehensive, and is consistent across the state”), and then applied that definition to the state’s funding formula. Despite extensive evidence supporting the plaintiffs’ claim that the funding formula is inadequate, the state Supreme Court’s definition of thorough and uniform required a decision that the state funding formula is constitutional.

However, the fact that the state funding formula meets a minimal constitutional standard is not to imply that it even approximates the state’s moral obligation to its students. Colorado is currently shackled by two regressive constitutional amendments – the Gallagher Amendment and TABOR – that have resulted in an alarming disparity between local and state dollars supporting public education. Despite the goal of 50-50 between local and state funds supporting public education, the current distribution is 35-65 with the state shouldering the greater burden. My research findings have estimated that the state is failing to collect between $1.7 and $2.2 billion in property taxes because of the unintended consequences of the Gallagher Amendment and TABOR. As a result, the state coffers are being used to backfill these lost revenues.

So, what is our moral obligation to children in Colorado (or any other state)? I feel the answer to that question should be driven by policy makers in Denver but my point here is that there needs to be a shift in thinking. Ensuring all children have access to an adequate education should be a political agenda that unites policy makers on both sides of the aisle. Why only political party is viewed as a friend to public education is a mystery to me (or I am incredibly naïve). If you value a stronger economy then you have to value public education. If you value stronger communities then you have to value public education. If you value people pulling themselves up by the bootstraps then you have to value public education. In fact, even if the only thing you value is your own well being then you have to value public education given all the benefits associated with an educated populace.

If the discussion related to school finance operated in the moral arena, as opposed to the legal one, then children would benefit. I guess it comes down to how the question is crafted – does public education need more money (politically unpopular) or do America’s children require additional resources to be able to complete in the 21^st Century? Advocates for better funding ought to take a page from Bush’s No Child Left Behind. If you had voted against that it would have appeared like you were voting for some children being left behind. A similar catch phrase is needed to encapsulate the need for greater funding in Colorado and the nation.

I will end my commentary on this ruling by stating that the state Supreme Court failed in one key aspect of Lobato. State statute requires school districts to work toward providing students with a world-class education. In other words, the standards and expectations are fairly high for educators throughout the state. However, what are the standards and expectations for the state to fund a world-class system of education? According to the state Supreme Court, there are no such standards or expectations.  

Social Networking and School Employees

Social Networking and School Employees

Remember Ashley Payne? She is one of the many teachers who gained national notoriety for their social networking.

In Payne’s 2009 lawsuit, she claimed her supervisors forced her to resign because of what she had posted on her Facebook page. What was so controversial? Was it that she called her students “germ bags” and their parents “arrogant” and “snobby”? Or had she said, “I’m not a teacher—I’m a warden for future criminals”? Maybe she was taking a controversial political stance like condemning homosexuality as a “sin” that “breeds like cancer”?

No, these statements got other school employees in hot water, but Payne’s transgression was apparently more about the pictures than about what she had posted online.

So, now you may be thinking Payne posted nude pictures—like maybe a shot of her topless while kissing her girlfriend or at a Bachelorette party posed next to a stripper? No, those online photos were why other teachers have been disciplined. So, what was the outrageous, controversial content of Payne’s pictures?

She was holding a mug of beer and a glass of wine.

It may be shocking that something legal that occurred off-campus and off-duty could cause such a stir—especially considering Payne claims she took special precautions by ensuring her page was private and by not “friending” any students. You may be equally surprised to hear Payne’s lawsuit remains unresolved. In April 2013, Payne did not prevail in her lawsuit against the district, but she has filed a notice of appeal.

One legal issue that distinguishes Payne’s case is her lawsuit focuses more on due process violations than free expression violations. However, other teachers who have been dismissed for social networking have not prevailed after arguing that their free speech rights were violated.

The story of Ashley Payne is at one end of the continuum; whereas, there are plenty of school employees posting comments, blogs, pictures and videos that are worthy of reprimand and a few teachers who undoubtedly should be dismissed for their cyber-behavior. For example, a California band teacher pled guilty to sexual misconduct after sending more than 1200 private Facebook messages to a student.

When faced with situations ranging from mildly unprofessional conduct to serious sexual misconduct, it is no easy task to determine how schools ought to react to employees’ social networking. Administrators are confronted with the difficult responsibility of balancing school employees’ constitutional rights, safeguarding the image of teachers as role models, and preventing inappropriate employee-student relationships.

One way school leaders can respond to this challenge is by staying abreast of the constantly evolving law surrounding social media. Because of the prolific media attention surrounding employees and social networking, there are numerous articles, webinars and presentations on the topic. For example, on Thursday, June 20^th, the Indiana University (IU) School of Education will host a law panel about “Social Media, the First Amendment and Public Schools.” I will participate on the panel with Suzanne Eckes, associate professor at IU School of Education; Martha McCarthy, Chancellor's Professor Emeritus at IU School of Education and Presidential Professor at Loyola Marymount University; Dave Emmert, attorney for the Indiana State School Boards Association; and Seamus Boyce, attorney at Church, Church, Hittle and Antrim.

I hope you can join us, but if not, I think we may have at least one EdJurist in the audience who may blog or tweet about the conversation!

Cone of Shame

This happened last year and I somehow missed it: teacher permits "cone of shame" on students -- which is essentially a dog collar with a cone attached when the students misbehaved. Brought to my attention again by @sjciske. 

 Apparently, she was just transferred and not fired. Being a science teacher saved her. 

By the way, I'm not sure what is happening in Pasco County, FL, but they certainly seem to make the education law news a lot. 

New Education Law Blog

It is not that often that I get to announce a GREAT new outlet for education law news and resources, but today I do in the form of the Education Law Prof Blog. The blog is part of the Law Prof Blog network and is written primarily by Derek Black of the University of South Carolina Law School and LaJuana Davis of Samford University with occassional posts by Areto Imoukhuede of Nova Southeastern Law School. You absolutely must add it to your readers (and, remember, Google Reader is going away soon, so please switch to Feedly). 

I feel like this blog was the exact blog that I expected to exist way back in 2004 when I first searched googled "education law blog" and found nothing (and this started this one). I am glad that we finally have a presence at that law professor level (besides with this blog) and I hope that education law continues to be taken more seriously by those in the legal academy. 

New Publication Opportunity

Information Age Press has a new publication opportunity for peer-reviewed chapters in a book to be titled "Law & Educational Inequality: Removing Barries to Educational Opportunities." The effort is lead by our friends Susan Bon, Kevin Brady, Karen Miksch & Jeffery Sun. The deadline for chapters is August 15 and publication is expected early next year. More information about the opportunity can be found in this call for papers. 

Michigan Governor's Education Summit: Connecting Education to the Economy

I'm attending the 2013 Michigan Governor's Education Summit today. Its theme is connecting education, business, and talent to create vibrant economic opportunity in the state. It follows the Governor's Economic Summit that was held last month in Detroit.

Michigan's workforce is aging, so within 10 years, we will need a lot of highly skilled workers to take these jobs. This is a big opportunity for our state. Historically, Michigan has had a strong manufacturing economy. We are continuing with advanced manufacturing where we have an advantage over foreign countries. Here's a list of the predicted workforce needs:

STEM

Skilled trades (welders, tool and die fabricators, line workers, machinists, mechanical maintenance technicians, pipe fitters, designers, electricians, and mold makers), engineers (electrical, mechanical, electro-mechanical, manufacturing, chemical, robotics, software, metallurgy, and design), and IT specialists.

Non-STEM

Project managment, administrative services, digital marketing, and primary care physicians and registered nurses (in particular, speciality RNs).

Soft skills:

Adapatibility, ability to work in teams, critical thinking skills, passion, and problem-solving skills are crucial because workers need to constantly adapt to a changing workplace. 

Suggestions for educators: expose secondary education kids to potential job opportunities through information and internships, and help students identify job interests, so they pursue careers where jobs will be available. Apply business principles such as continuous improvement in the classroom.

Suggestions for parents: value the skilled trades as viable careers for their children. Consider apprenticeships. 

Other things we need to work on as a state: place-making so that Michigan remains attrative for young people (vibrant urban areas, capitalize on the great lakes), be positive about the state.

This conversation reminds me of the various, competing goals of education. David Labaree's work would classify this economic goal as social efficiency, the matching of talent with economic needs. This view of education, while always present, was prominent at the turn of the 20th century. This strong focus on the economy downplays the importance of the other goals of democratic equality (education for citizenship) and social mobility (education as a way to better an individual's life). In light of the fact that Governor Rick Snyder is a businessman, it is not surprising that his education agenda would be for a stronger connection between schools and the workforce.

More Right-to-Work Controversty in Michigan

In what the Michigan Education Association (MEA) calls a political move, the Ferris State University Trustees rejected an extension to their current faculty contract recently after this solution was initially supported by the university and ratified by 96% of the faculty.  Allegedly the trustees voted against the contract because it extended the MEA's right to represent the faculty for another three years.  This move is allowed under Michigan's new Right-to-Work law, but it would essentially prevent the law, which prohibits public employers from making participation in a union a condition of employment, from taking effect at FSU until it expires. The MEA has filed suit.

I think this is a very interesting situation, and I will be watching it closely. Michigan has a long and proud tradition of being a union friendly state. This is evidence of our very painful transition to a Right-to-Work state.

Taylor Teachers sue for Right-to-Work in Michigan

The Right-to-Work law controversy continues in Michigan with a new lawsuit being filed by the Mackinaw Center for Public Policy and three teachers employed in Taylor, Michigan. This lawsuit is in response to the 10-year union security agreement entered into between Taylor's teachers' union and its public school system. This agreement provides for the Taylor Federation of Teachers to be the exclusive bargaining representative of the teachers until 2023 and requires teachers to pay union dues or a service fee as a condition of their employment. Michigan's new Right-to-Work law prohibits this type of union security provision in contracts entered into or modified on or after March 28, 2013.

Taylor's new agreement is drawing rapt scrutiny because it was just enacted, appears to comply with the requirement, and therefore allows parties to enter into extended agreements that circumvent the Right-to-Work law. Unions around the state have been asking and achieving similar agreements with their school districts in exchange for significant consessions.  Because Taylor is one of the first school districts enacting the new security provision, it is serving as the issue's lighting rod.

The lawsuit takes issue with the fact that the union security agreement is a separate collective bargaining agreement from the five-year agreement containing the teachers' wages, terms and conditions of employment, and working conditions. It alleges that Michigan law prevents one part of a labor agreement from extending beyond the others (Count I). It also contends that the agreement has insufficient consideration because it lists "labor peace and bargaining continuity" as the benefit (Count II). Finally, the lawsuit alleges that the union security agreement is in essence a policy that binds future school boards and this is impermissible under Michigan law (Count III).

Examining Michigan law on these points, I don't think the plaintiffs are likely to be successful on Count I because the provision they cite, M.C.L. 423.215b, prohibits wage or benefit increases after a collective bargaining agreement expires. It doesn't specifically address the issue of the continuation of a separate collective bargaining agreement for union security. I think their argument is that there can only be one agreement, not two like in Taylor, but it's a stretch to read that into the law's prohibitions.

Regarding Count II, for the consideration to be valid, there must be a mutual exchange of something of value.  The plaintiffs argue that this was already guaranteed during the five years of the other CBA, so it can't be used again for this agreement. In addition, the union can't guarantee bargaining continuity for 10 years, especially because Michigan law allows for another union to be elected as bargaining representative three years after a new agreement is enacted. There is no clear answer in Michigan law for this argument. I lean towards the defendants, though, because I think labor peace and bargainining continuity could be considered valuable consideration. I do think it could be problematic for the union security contract if another union was elected during its 10 year term.

Finally, to be successful on Count III, the plaintiffs will have to prove that the union security contract is really a legislative policy that binds subsequent school boards. I think this will be hard to establish.

We will be watching closely as this lithmus test for Right-to-Work and certain circumvention strategies unfolds in court.

http://www.mackinac.org/archives/2013/Taylor_Complaint.pdf

Charter Schools and School Discipline Policies

A recent Education Week article titled, Charter Schools' Discipline Policies Face Scrutiny raises some important and currently unanswered legal questions concerning the ability of charter schools to develop and enforce their own school disciplinary standards separate from district-level disciplinary policies impacting regular public schools.  An analysis of recent 2009-10 data collected by the U.S. Department of Education's Office of Civil Rights revealed no overall significant difference between the student disciplinary expulsion rates between charter schools and regular public schools.  However, higher student discipline rates in charter schools were observed in a few select large urban school districts throughout the country, including Washington, D.C., New Orleans, San Diego, and Newark, N.J. (See a comparison chart of student discipline data rates in charter schools compared to public schools in these selected cities).

  According to the National Alliance for Public Charter Schools, approximately 55 percent of today's charter schools are located in urban areas.  Moreover, charter school student populations represent a "huge market share" in cities cited in this particular study, including New Orleans and Washington, D.C.  From a legal perspective, Paul T. O'Neil, an education attorney and author of the Charter School Law Deskbook comments in the Education Week article "...most state laws exempt charter schools from district disciplinary policies, typically allowing them to devise their own standards, with authorizer approval."  Despite this relative autonomy, all public schools, including charter schools must provide students with minimum levels of procedural due process as well as follow federal guidelines regarding disciplining students with special needs and disabilities under the Individuals with Disabilities Education Act (2004).  

Disparities in student disciplinary rates between charter schools and regular public schools have caused some districts, including Newark, N.J. to require charter schools to adopt the district's language in its student disciplinary policies. Given the current growth in charter schools nationwide, it is interesting whether charter school discipline policies will align more closely to district-level policies or move away and develop their own student disciplinary standards and practices.  Since there are quite a few followers of the EdJurist blog with an expertise in charter schools, I welcome your thoughts and insights related to student discipline policies in today's charter schools.

On another note, it is great to be back blogging on the EdJurist after a LONG hiatus.  I look forward to contributing on a regular basis.  

A Nice Video on Overcoming Bullying

I am a sucker for this kind of stuff. Passion. Art. Poetry. Combined into a beautiful message for kids that are facing challenges. There should be more of this. 

h/t Jayson Richardson

Eyes on Kansas School Finance Cases

A most unusual wave in the story of school finance litigation is washing upon Kansas at the moment.  In January, a trial court in Kansas ruled that the state’s current education budget – adopted following a very large income tax cut that diminished state revenue – did not meet the Kansas constitution’s mandate to provide “suitable provisions for finance of the educational interests of the state.”  Nothing terribly new there – for decades, state courts and state legislatures across the country have been engaged in ping pong matches over whether state school finance schemes comply with state constitutional mandates.  Indeed, the Kansas Supreme Court had recently been in such a back-and-forth with the legislature, ultimately approving of the legislative action taken in 2006 as discharging the legislature’s constitutional duties.  However, the most recent decision – Gannon v. State – criticized the legislature for cuts since that ruling and concluded “that the Legislature could not have possibly considered the actual costs of providing [a] suitable education in making its appropriations” between 2008 and 2012.  Governor Sam Brownback, whose zeal for small government and minimal tax burden helped (along with revenue shortfalls due to the economic downturn) create the cuts to education funding, was critical of the decision; the state has already appealed, but an affirmance would force the Governor to reluctantly find the revenue to return to public education.

However, the unusual part of this story comes from another lawsuit, Petrella v. Brownback, in which members of the suburban Kansas City Shawnee Mission school district have challenged the state’s cap on local taxes for education as unconstitutional under the federal constitution.  In essence, the plaintiffs desire to tax themselves at a higher rate than is permissible under state law.  According to the complaint, the cap “strips Plaintiffs and local citizens fo their fundamental freedom to use their own money to improve the public educaiton of their children.”  Constitutional scholar Laurence Tribe is part of the plaintiffs’ legal team.  It is a fascinating legal theory on its own and, if successful, could undermine school finance schemes elsewhere, many of which rely upon similar caps or expenditure limits to ensure some measure of equity in school funding between property-rich and property-poor school districts.  The federal district court dismissed the case last year for lack of standing, but the Tenth Circuit reversed and remanded in October for a determination on the constitutional questions.  

Interestingly (though not surprisingly), parties who support the Gannon case and the push for more overall funding have opposed the Petrella plaintiffs’ claim - indeed, this is true of the Gannons themselves.  In the Gannon case, they are the named plaintiffs pushing the state to increase its funding, but they have also intervened on the state’s behalf in Petrella, claiming that the effect of allowing local taxation above the cap would lead to inequitable educational opportunities within the state.  (Of course, while they are named parties, the Gannons are not the primary movers here - rather, a conglomeration of school districts, Schools for Fair Funding, and their lawyers appear to be leading the charge)

Both suits, however, have as their underlying premise the idea that the state is not doing enough to fund public education.  In Gannon, the plaintiffs are looking to the state to provide more money directly; in Petrella, the plaintiffs are simply asking for the liberty to provide the increased money themselves.

Stay tuned as these two cases develop.  Gannon is up on appeal, while Petrella is back to the district court on remand.   The outcomes will affect not only the future of school financing, but also the viability of attempts like Governor Brownback’s to shrink government and lower taxes in the face of constitutional mandates to provide for education.

Legal Obligation or Moral Imperative?

I am not completely certain the following thoughts perfectly align with a blog devoted to school law topics (probably better suited in a school finance blog – but, then again, there is a degree of overlap between the two disciplines). I recently received the following thought from Dr. Dan Maas, the chief information officer for a school district in the Denver area:

If you restrict the fuel into an engine, you should not be surprised when the car seems to struggle and under perform.

Dr. Maas used that fact as a metaphor to explain what is occurring in a vast majority of school districts across the nation. As a result of the 2008 recession, state funding for public education has declined over the last four years. These cuts have come with a cost. Public school officials are being asked to do more to ensure that the organization provides the same services at a reduced expense. However, there are not more hours in the day and educational leaders put in additional effort and time to the point of overwhelming fatigue. Eventually these overworked educators will either say “no” to additional work, and the work will not get done, or they will burn out. Neither option is ideal.

The question that Dr. Maas wanted answered was how do educators effectively communicate the current plight of public education to state legislators? This question has generated a few thoughts in my mind that I would like to share here.

As the nation’s economy slowly recovers from the recession there is a danger that some elected officials will be hesitant to provide public education with the requisite dollars to return to pre-recession funding levels since public education has functioned sufficiently well on the reduced budget over the last four years. State legislatures must work to restore pre-recession funding levels for public education and such efforts should garner widespread popular support. So, once again, how do those who are committed to ensuring that all students receive access to an adequate educational experience inform policymakers on the needs of public education?

The overly simplistic answer focuses on helping the community understand the fiscal realities of the current budget. Programs and services could be cut due to budget constraints. The problem with cutting programs or services is that it goes contrary to the core beliefs of most educators – to do no harm to children. Educators constantly work to insulate children from the financial side of public education. But, when children and, by extension, parents do not feel the impact of budget cuts then public education loses its most powerful group of lobbyist.

I have worked with a chief financial officer who once purchased the most dilapidated portable classrooms he could find the summer before the school district was to approach its voters about a bond issue. He then had the portable classrooms placed in the most prominent location on campus. The net effect of these efforts was that parents were appalled at the conditions and overwhelmingly supported the ballot measure in November. I feel like the same thing must happen to help public education return to pre-recession funding levels. Parents must become aware of the cuts school districts have implemented and appreciate the burden these cuts have had on the system. Just like the engine with restricted fuel, if the funding issue continues to go unaddressed then public education will begin to sputter and under perform.

A coalition of advocates for public education, including parents, business owners, and city officials (to mention just a few), could prove the catalyst to help policymakers shift the discussion from constitutional obligation related to funding public education to moral imperative. Only when elected officials view funding public education in the latter light will all children realize the Brown ideal of equal access to education for all children.

If the entrance is closed, is it still an open meeting?

The Michigan Education Association and the AFL-CIO have filed a lawsuit challenging the new right-to-work legislation that passed in December.  The suit alleges that the legislature violated Michigan's Open Meetings Act, its Constitution, and First Amendment principles by blocking access to the capitol for four hours during the debate on the legislation.  The focus of the lawsuit is the Open Meetings Act violation.

Like many other states, Michigan law requires that meetings of public bodies be held at a public place and be open so that members of the public may attend.  If an open meeting is not held, the decisions made while closed can be invalidated if this has impaired the rights of the public.  According to the complaint, although the actual vote on the legislation took place after the capitol was reopened, many significant changes to the bills were made during the building closure that essentially transformed the legislation into a right-to-work law. The plaintiffs allege that their rights to participate in the governement by listening to the debate, lobbying legislators while it was ongoing, and to report out the facts of what was taking place were impaired.  The state police claim that the building was closed for structural safety concerns.  The plaintiffs question this claim because this was, from their vantage point, one of the most significant pieces of legislation addressed by the legislature in the past 50 years and the building had never been closed before.

Here's my initial impression of this lawsuit:

While the closing of the Capitol was unprecedented and a very bad idea unless there really were safety concerns, I think that the plaintiffs are unlikely to prevail in this lawsuit because the actual vote took place after the building was reopened.  Michigan's law only invalidates decisions made while in closed session.  In addition, when interpreting this law, Michigan courts have looked for an intentional closing of a public meeting to cover up for misdeeds or to hide information about how public officials voted as proof of impairing the public's rights.  This situation appears to be about limiting public access to protest or talk about the law before it passed.  Moreover, even if plaintiffs could convince the courts that the votes should be invalidated, in the past Michigan courts have allowed public bodies to reenact votes that were not in compliance with the Open Meetings Act.  So, even if the vote was improper, public bodies have been allowed to re-hold the vote in a public forum and reach the same result.  

Despite my initial analysis, I am very concerned about the closing of the building during this legislative debate. Unless it really was for safety concerns, excluding hundreds of citizens who wanted to participate and observe the debate on important state legislation flies in the face of our democratic traditions.  Public bodies in other states have taken steps to keep their meetings open by moving locations to accommodate more people and/or televising the debate so many more individuals can watch it.  These changes were found to be consistent with open meeting act principles. Michigan did not take these steps in anticipation of a heated debate; instead it closed the capitol building.  It does have a government access tv channel that could have broadcast the legislative proceedings on December 6th.  I don't know if that actually occurred.

This issue promises to continue to be a contentious one in Michigan.  I'll keep you updated.

Here's a link to the complaint:

http://www.aclumich.org/sites/default/files/file/RTWcomplaint.pdf

We Need Fewer Guns

Today, I was moved by the testimony of former Representative Giffords, "Too many children are dying. Too many children." You owe it to this country to at least listen to that video (click the link). 

I am a hunter. I grew up with guns, I still enjoy shooting, and I personally own a shotgun for that purpose. My own child went deer hunting just two weeks ago and I was proud of him. Most of my family and friends are gunowners and hunters as well, so they are likely to disagree with what I am about to say. So be it. 

We need fewer guns. Because "too many children are dying."

That's the long and short of this. Too many children are dying. We must respond and there is only one reasonable path. We need fewer guns.

Guns beget guns beget guns and a society with more guns is not safer, it is more dangerous.  

Not only are children dying from random acts of insanity at schools like those in Connecticut, Colorado, Kentucky, Virginia, and just about everywhere else ... but too many kids are killing themselves as well. There is too much unnecessary death and the always present tool seems to be the gun. 

I work with schools. I am deeply saddened by what I have seen these last ten years. Now, armed police roam the halls between our classrooms. Children not only learn to read these days, they learn to live in environments constantly patrolled by gun barrels. They learn to live in fear. That should be embarassing to us as a country. Children are in the presence of guns more frequently in the United States than in any third world country. It is compulsory in the United States for kids to spend their days watched by guns. I am embarassed at that reality.  

Now, serious people all over the country talk of arming principals or teachers. We should be disgraced at the thought. Anyone that advocates for giving educators guns but won't consider limiting assault rifles has a serious detachment problem from sanity. 

Guns beget guns beget guns. There is no solution to more guns except for more guns. Someone did actually define that cycle as insanty, once. So, our current national policy toward guns and kids is definitionally insane.  

Our poor schools do not know how to respond, except only to join in and try to stay ahead in this vicious cycle. I work with school leaders. I know what a difficult position they are in. So difficult, in fact, that reasonable school leaders have even started purchasing their own assault rifles for their office, so that in a shootout they will not be outgunned, I suppose. Where does this end? Metal detectors, surveillance cameras, police controlling our school hallways ... we have already given up so much that we cannot get back and for what? The children keep dying. Some cry out liberty and freedom in this debate, but where is our children's liberty? We have deprived them of their liberty, even of their lives, in our disillusionment that owning an AK makes us free. 

I don't care whether guns kill people or people kill people or whatever nonsense cliche you want to throw around to avoid the painful truth. Dead kids lie in graves that should be playing in schoolyards. Far, far too many of them. 

"Too many children are dying." We need fewer guns. 

From Athletics to RFIDs: Have Schools Gone Too Far?

As I read the lively discussion related to the use of radio frequency identification (RFID) in a Texas magnet school I feel a need to stress one point that is possibly being overlooked. A vast majority of the reactions to the RFID synopsis center on the correctness of the practice from either a legal or ethical perspective. I feel there are inherit inequities embedded in the practice.

The US Supreme Court established the notion that not all students are equal when it handed down the Vernonia School District 47J v. Acton ruling in 1995. Part of the justification for allowing random urinalysis for interscholastic athletes recognized that these students had less expectation to privacy as a result of their participation in athletics. In the end, students who desired to use illicit drugs were not being denied access to an education, they were merely excluded from participation in interscholastic athletics.

My fear is that the concept of treating certain students different than other students, as a result of the choices they make, is being applied too broadly. I co-authored a paper that was presented at the Education Law Association’s 2009 conference and relates to the point I am trying to establish. The paper analyzed the actions of a Colorado charter school and its chartering school district toward a student who qualified for free lunch. The charter school lacked a sufficient kitchen to run a lunch program internally, so charter officials were required to contract with outside vendors to provide lunch services. One year the outside vendor informed the charter school that it would offer its lunches at both a regular price and a reduced price, for those who qualified, but not at the free rate. The one student attending this charter school who qualified for free lunch (that is another issue) was forced to chose to attend the charter school and receive a reduced lunch or attend the neighborhood traditional public school and receive a free lunch. In effect, the student was being denied access to a desired pedagogy due to his parents’ socioeconomic status. I think that sounds like discrimination…

The magnet school in Texas appears to be heading down a similar path related to the use of RFID. Students have an option – chose to use the RFID and attend the magnet school or refuse the RFID and obtain an education elsewhere. I see this either-or approach as dangerous and I fear it will result in denying students access to the magnet curriculum. I am not certain that students attending magnet schools are in the same boat as interscholastic athletes when it comes to a decreased expectation to privacy.

My final observation related to the use of RFID attempts to take the practice to the logical extreme. Let’s suppose the student refuse to comply with the RFID expectations and returns to the neighborhood school. What happens when the neighborhood school decides it, too, is losing money due to students missing classes during the school day and moves to implement the RFID practice? Will the student be forced to comply with the policy in order to remain in public education? Is that a desirable learning environment?

No public school, be it a charter or a magnet school, should ever be allowed to justify discrimination by arguing that if a student does not like the practice then he or she can go elsewhere to learn. Public schools are charged with serving all students and if some public schools are allowed to exclude certain students (by imposing RFID or counseling some students out) then the entire system is in jeopardy.

Troublesome student writing after Sandy Hook

I blogged shortly after the Sandy Hook tragedy in Newtown, CT about the potential impact such an event would have on student speech, and in particular, student writings. Eric Harris and Dylan Klebold were writers of a sort and after the fact, many questioned why English teachers, administrators, and friends couldn't dissect those writings to prevent the horrific event that occurred.  After Columbine in 1999, many of our nation's public school administrators responded in a very natural way - over reaction, fear, and intolerance - in particular to student writings that were dark, violence, or disturbing. This led to a number of student speech cases wherein courts referred to Columbine as an event that all school administrators are aware of and are attempting to prevent. While student speech rights faced some difficulties after Columbine, over time Hazelwood, Fraser, and Tinker (and eventually Morse) reemerged as the landmark cases we could all rely on.

Student writing is again on the forefront after Sandy Hook. In San Francisco, Courtni Webb, a 17-year-old charter school student, was suspended for the content of a poem she wrote in which she stated that she understood why Adam Lanza did what he did. She offered a brief commentary on the state of society as she saw it writing, “I know why he pulled the trigger. Why are we oppressed by a dysfunctional community of haters and blamers?” Webb made no threats of violence in her poem nor did she turn the poem in for class credit - a teacher found the poem and turned it over to administrators. Webb likened herself to a young Stephen King and noted that she often writes about sadness and other emotional topics. The school maintains a zero tolerance approach to threats of violence and apparently felt the student writing was just that although Webb maintains she has no disciplinary record to indicate she is a potential threat.

Violence in student writing is nothing new, but the issues will be renewed after Sandy Hook. Removing the charter school issue from Webb's scenario, the implications are still there for public schools - how do we best allow students to be creative, thoughtful, and provocative writers while still maintaining school safety? I argue in favor of writing - only because as a former English teacher I know how important meaningful and personal writing can be to adolescents. But I also know the difficulty of handing over a piece of student writing to a principal and asking "What if???" There are no easy answers here but as legal scholars and educators we must be vigilant of the issues that arise quickly within one day and ready to respond swiftly in a defensible fashion.

Any suggestions?