Last Month’s SCOTUS Case Is an Education Burrito with Civil Rights on the Side in a Fair-Housing Wrapper

To date, I’ve mostly shared FERPA musings on the EdJurists Blog, but after reading an article published last month in the Wall Street Journal and perusing the SCOTUS’ docket this term, I decided to tackle a different issue—even at the risk of jading readers by my incorporation of sociology and economic theory. So let’s start with a game I’ve cribbed from Sesame Street.

Which one of these is not like the other: school choice; school resource allocation; educational achievement outcomes; and the Fair Housing Act? Though their relationship may not seem intuitive at first blush, race, school choice and resource allocation, educational achievement outcomes, and the Fair Housing Act may be may indeed by intimately related. Uncovering the effect of neighborhood and school racial composition or the interaction between any two of these concepts, however, is a difficult endeavor for several reasons. First, extricating racial composition effects at the neighborhood and school level requires carefully sorting these effects from the many facets of neighborhood and school quality, including differences in student abilities and family background. Second, and perhaps more importantly, “racial mixing is not accidental but instead an outcome of government and family choices” (Hanushek, et al., 2006). Legal regimes at the federal, state, and local levels, as well as household residential decisions integrally form the racial composition of neighborhoods and schools. For instance, the Brown v. Board of Education Supreme Court decision precipitated massive national and state movement to desegregate local school districts. Over the intervening sixty years, however, the wide variation in patterns of school desegregation intensity and white flight from the urban landscape adds to distinct differences among jurisdictions, school districts, neighborhoods today (Hanushek, et al., 2006).

Recent studies in North Carolina (Billings, et al., 2014), Tennessee (Smrekar & Goldring, 2009), Texas (Hanushek, et al., 2006), among other places, have again made relevant and evident the link between housing and zoning policy and education policy (see also Schwartz, 2010; Vigdor, 2011). Their findings demonstrate that, as students and their families’ school choice options are reduced, typically by a zoning regime that assigns neighborhood schools—with the exception of magnate schools—student achievement outcomes decline; conversely, as school choice increases, student achievement outcomes outpace those for students and their families with fewer educational options, and particularly for students, regardless of their race, in neighborhood schools where minority students comprise the majority demographic population (Billings, et al., 2014; Smrekar & Goldring, 2009; Welnar & Spindler, 2009; Hanushek, et al., 2006). The resulting achievement gaps, as measured by standardized achievement scores, between students with increased school choice options and their counterparts without are rather consequential. For instance, Smrekar & Goldring find that these gaps amounted to: thirty-seven points in reading and forty-three points in math (Smrekar & Goldring, 2009). For those on the short end of the achievement gap, this deficit represents diminished labor prospects and quality of life in later years (Massey, 2007).

These findings seem to indicate that a widening, not decreasing, inequality, despite efforts by school districts to mitigate the effect of de facto segregation through compensatory resource allocation (Billings, et al., 2014). Massey (2007) argues that these effects are exacerbated by exclusionary housing lending and neighborhood restrictions, which shamefully still occur, resulting in what Massey has called a “new ecology of inequality” as manifested by spatial separation between races and a new de facto segregation of schools. Perhaps problematically, resolving the very issue that desegregation sought to achieve—interracial interfacing to promote equality of opportunity—requires a legal solution informed by empirics.

Traditionally, the court system has been wary to entangle itself in legal questions that require empirical methods to be resolved. Luna (2006) opines that this may be because the law is concerned with certainty, while empirical solutions are prone to bias and proffered with a certain level of uncertainty. However, the line on constitutional precedent borne from the Equal Protection Clause of the Fourteenth Amendment and its basis in civil rights legislation, has given rise to a number of legal claims which require an empirical foundation to meet the burden of proof. For example, a claimant may prove a violation of Title VII of the 1964 Civil Rights Act, by showing that an employment practice or policy has a disproportionately adverse effect on members of the protected class (which includes laws include race, color, religion, national origin, gender, and depending on the legislation, other traits such as disability) as compared with non-members of the protected class. This burden of proof is almost always met by demonstrating this disparity through empirical measures and methods.

Last month, the Supreme Court heard oral arguments to resolve whether the Fair Housing Act of 1968 creates a cause of action for disparate impact in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. This marks the third effort three years by Court to consider both the intent and scope of the Fair Housing Act. Ostensibly, before the Court is a case about whether a viable legal claim of disparate impact under the Fair Housing Act exists. However, as the foregoing discussion has revealed and our title makes mention, the Court’s decision will almost certainly have implications on school choice, school resource allocation, and educational achievement outcomes as well.

REFERENCES

Billings, S.B., Deming, D.J. & Rockoff, J. (2014). School segregation, educational attainment and crime: Evidence from the end of busing in Charlotte-Mecklenburg. Quarterly Journal of Economics, 435-476.

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

Hanushek, E.A., Kain, J.F. & Rivkin, S.G. (2009). New evidence about Brown v. Board of Education: The complex effects of school racial composition on achievement. Journal of Labor Economics 27, 349-383.

Luna, A.L. (2006). The faculty salary equity cases: Combining statistics with the law. Journal of Higher Education, 77, 193-224.

Massey, D.S. (2007). Categorically unequal: The American stratification system. Russell Sage Foundation: New York, NY. 

Orfield, G. & Frankenberg, E. (2014). Brown at 60. Los Angeles: The Civil Rights Project at UCLA. Los Angeles, CA: UCLA.

Smrekar, C.E. & Goldring, E.B. (2009). Neighborhood schools in the aftermath of court-ended busing: Educators’ perspectives on how context and composition matter, in From the Courtroom to the Classroom: The Shifting Landscape of School Desegregation. Cambridge, MA: Harvard Education Press.

Schwartz, H. (2010). Housing policy is school policy: Economically integrative housing promotes academic success in Montgomery County, Maryland. New York: The Century Foundation. http://tcf.org/publications/2010/10/housing-policy-is-school-policy.

Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., Nos. 12–11211, 13–10306. (5th Cir., Mar. 24, 2014).

Vigdor, J. (2011). School Desegregation and the Black-White Test Score Gap, in G. Duncan & R. Murnane (Eds), Whither Opportunity?: Rising Inequality, Schools, and Children’s Life Chances. New York: Russell Sage. 

Welch, F. & Light, A. (1987). New evidence on school desegregation. Washington, DC: United States Commission on Civil Rights. 

Welner, K.G. & Spindler, E.R. (2009). Examining School Districts’ Policy Options for Mitigating Racial Segregation, in C.E. Smrekar & E.B. Goldring (Eds.), From the Courtroom to the Classroom: The Shifting Landscape of School Desegregation. Cambridge, MA: Harvard Education Press.

A Unique Approach to Education Funding Litigation in Michigan: The Headlee Amendment

Michigan voters passed an amendment (popularly known as the Headlee Amendment) to its Constitution in 1978 that prohibits the State of Michigan from requiring local governments to provide new services without supplying them with the funding necessary to accomplish them. Several lawsuits have been brought since the amendment's passage to challenge new state requirements. Specifically, Article 9, Sec. 29 requires:

A new activity or service or an increase in the level of any activity or
service beyond that required by existing law shall not be required by the
legislature or any state agency of units of Local Government, unless a state
appropriation is made and disbursed to pay the unit of Local Government
for any necessary increased costs.

Recently, in the case of Adair v. State of Michigan, 450 school districts in Michigan brought a lawsuit challenging the State's 2010-2011 and 2011-2012 allocations for education funding. The challenge questioned funding for new reporting requirements, a student-teacher data link, to Michigan's Center for Educational Performance and Information (CEPI). As a result of a 2010 court decision in a related lawsuit, the Legislature appropriated $25 million for 2010-2011 to pay for local districts reporting costs to CEPI. The Legislature allocated $34 million for 2011-2012 after a student-teacher data link requirement was added to the system.

The Michigan Supreme Court dismissed this most recent lawsuit, holding that the plaintiffs were required to allege specific amounts of underfunding rather than relying upon expert testimony that the schools were underfunded. The Michigan Court of Appeals had allowed the plaintiffs to demonstrate that the funding methodology used by the Legislature to determine the amount of the appropriation was materially flawed. The Supreme Court explained that the Headlee amendment requires plaintiffs to quantify the extent of the harm so that the state government can anticipate financial adjustments that it needs to make to fully fund local government compliance with new laws and to avoid "litigation gamesmanship."

I've been following Headlee amendment litigation since I began working as an attorney in Michigan 20 years ago. It has always been a very complex and time consuming endeavor. I think the idea behind the law is sound--make sure the State pays for costs it is passing along to local governments. I also believe, for the most part, its operation is beneficial--school districts and other local government entities receiving more more when more is required of them. However, the enforcement mechanism--lawsuits--is cumbersone. I know this is the way our legal system operates, and it would be helpful to have another way to resolve these disputes. I see a similar sentiment in the court's reference to "litigation gamesmanship." Are all of these iterations of Headlee lawsuits necessary or is another solution possible?

What’s Eating Johnny(‘s Brain)? The Walking Dead and Educating Children

As I begin this blog post, I have to confess that I love watching The Walking Dead. My appreciation for the show begins with the inclusion of zombies (I am into zombies…), but this appreciation in enhanced because in virtually every episode I find myself wrestling with ethical issues, many of which could have legal implications, and that is what I find the most compelling aspect of The Walking Dead. Although I do not envision a situation where the dead will actually begin walking down my street – if that were to happen I would want to link up with Daryl Dixon – a more plausible scenario recently presented itself in the American psyche when Thomas Eric Duncan, a Liberian visiting family members in Texas, was diagnosed and eventually died from the Ebola virus. Today it was reported that a US soldier sent to assist with the Ebola crisis in western Africa has died.

As the mere threat of an Ebola outbreak was reported in all news outlets, I found the reaction of certain school officials curious. Consider the following examples:

• ·      In October, the same month that Duncan died, an elementary school in Connecticut requested that a student quarantine herself for 21 days after she returned from Nigeria, a country declared by the World Health Organization free of the Ebola virus. This student was in Nigeria to attend a family wedding. The family decided to sue the school district for the actions taken against this third grade student.
• ·      Two students from a Texas school district were on the same returning flight with the nurse, Amber Joy Vinson, who helped treat Mr. Duncan, then traveled to Ohio to visit family, and then was diagnosed with Ebola. When the superintendent of that school district learned of this fact, three schools in the school district were closed for a week so they could be thoroughly cleaned and disinfected (along with the buses serving these three schools). In addition, despite being deemed cleared by state health officials, the parents of these two students unilaterally decided to keep them home from school for the 21-day incubation period.
• ·      Finally, in Ohio a school district shut down two schools because two teachers flew on possibly the same plane, albeit a different and later flight, as Amber Joy Vinson.

Did school officials overreact in these three situations? Obviously, with hindsight, it is easy to answer that question in the affirmative. However, when school officials are in the throes of a potentially dangerous situation, such as the threat of a pandemic, what is the right course of action? Or, stated differently: Do school officials err on the side of caution at the risk of violating the rights of an individual or do they risk exposing more people to a potentially fatal disease by minimizing the dangers? And, ultimately, what are the personal, legal, and financial costs of either decision?

Another question related to the threat of a pandemic is when do school officials err on the side of caution? For example, during the height of the Ebola scare I informed my family that if there was a reported case of the disease in Colorado that we would cease interacting with others to ensure that we were not exposed to the disease. On a macro-scale, when do school officials deem the threat to be too great to keep schools open? And, if left to their own judgment, will some school officials wait too long before closing schools?

I am not certain if there are clear answers to the questions I pose here. One of the reasons for this statement is that each situation has its own particulars and a general policy or guideline may not appropriately apply to all situations. However, I also feel the Ebola scare should serve as a “wake-up call” to educators across the nation to think through all of the nuances associated with the threat of a pandemic before such a situation actually arises. And, where possible, hire Rick Grimes to be the school resource officer.

Charter School Trends: Accountability and Ownership

I am attending the Ohio Alliance of Charter Public Schools in Sandusky, Ohio today. Nina Rees, the President of National Alliance Charter Public Schools spoke about the charter school movement that has grown to the point where 42 states allow them and 2.5 million students are currently educated in a charter school. She said that annually 600 new charter schools are opened and 200 are closed. 

I presented in a session on Charter School Policy Trends around the Great Lakes with Kevin McKenna (Latsha, Davis, & McKenna), Chad Reeves (Ohio Alliance), and David Hansen (Ohio Dept. Of Education). One policy trend we noticed in Ohio and a Michigan is the push for greater accountability for charter school authorized. In Michigan, HB 5852 is designed to encourage "complete transparency" and a more rigorous authorizing process and, if enacted, would prevent the creation of new charter schools until an authorizer accedition system is established. In Ohio, the Department of Education is working on a system.

The most notable case is Hope Acad. Broadway Campus v. White Hat Mgt., LLC, 2013-Ohio-911 (Ohio Ct. App., 2013), that is currently before the Ohio Supreme Court. It asks the court to determine whether the management company (White Hat) or the school owns the physical property at the school because the items were purchased by the management company for use at Hope Academy but White Hat was given public funds to do it. White Hat argues they own it, and the school contends they should be able to keep it because it was purchased to benefit the public. 

Another trend mentioned at the conference is the need for charter schools to perform better academically then traditional public schools. Two Pennsylvania cases involved charter schools that were closed in part because they didn't perform better than the traditional school district where they are located: Graystone Academy Charter School v. Coatesville Area School Dist., 2014 WL 4214057 (Pa. Cmwlth., 2014) and New Hope Academy Charter School v. School Dist. of City of York, 89 A.3d 731 (Pa. Cmwlth., 2014). Nina Rees applauded this effort by contending that charter schools should close themselves if after 5 or 6 years their students are not outperforming their neighboring public school district.

School Boards, Political Agendas, and Student Resistance

School boards, historically, have been, for the most part, a necessary democratic entity charged with representing the public’s interest related to the governance of public education and rubber-stamping a majority of the decisions made by professional educators. It seems the importance of the local school board has increased in certain political circles. As a result, the overall make-up of school boards has changed in a number of school districts throughout Colorado.

 One local school board to experience a change in its make-up after the November 2013 elections was the Jefferson County School Board (JeffCo). The Denver Post reported on September 25, 2014 that a majority of the JeffCo Board was elected after running as a slate of conservative, reform-minded candidates. On September 18, 2014 the JeffCo School Board tabled a vote on the formation of a proposed curriculum committee. The proposed committee would be responsible for reviewing curricular choices for conformity to JeffCo academic standards, accuracy, and omissions. Also, the 9-person committee, whose members would be appointed by the school board, would ensure curricular information was presented accurately and objectively. Specifically, the proposal favors instructional materials that “promote citizenship, patriotism, essential and benefits of the free enterprise system, respect for authority and respect for individual rights.” In addition, instructional materials could not “encourage or condone civil disorder, social strife or disregard of the law.”

Those concerned by the formation of the curriculum committee claim that its sole purpose is to bar the revised US History advanced placement (AP) curriculum from being implemented in JeffCo schools. As possible evidence that partisan politics are exerting a greater influence in public education, the Republican Nation Committee issued a statement last month calling for delays in the implementation of the new US History AP curriculum because it was viewed as revisionist history that stressed negative aspects of US history.

At the board meeting when a vote on the curriculum committee was table, the JeffCo School Board was accused of censorship and shifting the focus of instruction from teaching students how to think to teaching them what to think. In response to the concerns articulated at the meeting last week, one of the conservative JeffCo Board members has suggested adjusting the wording related to the curriculum committee that would make its charge less directive.

What I have found most interesting about this situation is that students from at least 13 of the school district’s 19 high schools have walked out of classes each day starting on September 19, 2014 in protest against the proposed curriculum committee. And, these student activists are considering an organized walkout during the October 1 student count school day. There has been a lot of political posturing from both sides of issue concerning the student walkouts and rallies, but it appears the student actions are producing the desired results. The JeffCo School Board is experiencing pressure nationally and within the state and it remains to be seen if the board will stay the course.

Taking a step back from the current events unfolding in JeffCo, I am fascinated by the impact student walkouts can have on school boards. As stated above, a number of school districts in Colorado have recently, or in the last five years, experienced a shift in the make-up of their school board members due to the election of individuals with specific political agendas. Some of these political agendas have disrupted the governance process within school districts and, unfortunately, taken resources away from educating children. What recourse do people have when they elect an individual to a school board who is failing to appropriately represent them? In Colorado the answer to that question is, “no much.”

School boards may censure one of its members if deemed necessary, but a censure amounts to little more than a statement being posted in each school within the school district. There is also the option of a recall, but the laws around recalling an elected official place the burden on those seeking the recall. For example, in Colorado a recall election must be preceded by a petition signed by at least 40% of the people who voted in the election when the individual in question was elected. In addition, if the recall fails, then the costs accrued by the incumbent for the recall election are assumed by the school district. In short, there is little oversight or accountability for elected school board members.

Enter student walkouts. The actions of the students in JeffCo appear to be an effective means to bring attention to the antics of school board members that may not be in the best interest of students. These walkouts seem to be shedding a national spotlight on the JeffCo School Board and that spotlight may be proving a bit blinding for some. I anticipate the JeffCo School Board to back down from the curriculum committee based on the public outcry, led by the students. So, in the end, kudos to the JeffCo School Board for providing its high school students with an authentic opportunity to practice civil disobedience and for teaching others how to effectively challenge partisan school board actions.

Thoughts on Compulsory Attendance Laws

I recently read about Commerce City, Colorado mulling over the possibility of enacting a daytime curfew, from the hours of 9 am to 2:30 pm. Teenagers on the streets during this daytime curfew would be transported to their schools and levied a $499 fine. The city’s police chief and the two superintendents of the school districts serving Commerce City all support this proposal. One superintendent stated, “We know if we get them in our building, we can reach them, but we can’t do anything when they’re standing behind 7-eleven.”

I will contrast that effort in Commerce City with a view articulated by a colleague of mine when I taught at a high school in Utah. He desired to place a sign above the high school’s main entrance that read, “Only enter if you want to learn.” He felt a frustration with having to teach some students that had no interest in learning. His educational utopian was to work exclusively with students that wanted to take advantage of all that the high school had to offer. What about those who did not want to learn? He did not want to concern himself with these students.

Obviously, there are quite a few flaws in limiting access to education to those who want to learn – not the least of which is that such a policy would only serve to widen the opportunity gap between students. However, just forcing students to attend schools seems antiquated. So, what is the answer?

I believe that all students, regardless of background or ability, have an innate thirst for knowledge. All schools need to do is tap into that thirst and students will want to come to school each day (assuming the learning environment is safe – a plug for the video on bullying that was posted earlier on this site). However, to tap into that innate thirst requires resources. If I am at-risk of ending up behind 7-eleven then “business as usual,” or traditional public education with 30 students in one class listening to a teacher lecture, is going to fail to tap into my thirst.

Education must be allowed to become more attentive to the individual needs of each student if society desires all students to fully realize their potential. Specifically, a more individualized system of education would have to be defined by local education agencies. Just imagine a system where educators can identify the particulars of every student and each student has a genuine advocate. In addition, instruction is tailored to the needs and interests of each student. In such a system students would want to come every day not because of a law, but because adults cared about them and the learning was meaningful.

Such a system takes a significant infusion of resources and, given the political climate nationally, seems unlikely. It is significantly less expensive to just force students to attend school, albeit ineffective. I will end this entry with a quote from Richard Rothstein. In his book Class and Schools, Rothstein (2004) proposed widespread social changes to address the achievement gap. He then quantified the social changes at $156 billion, and recognized that it is politically unlikely that such changes will occur due to political apathy. He then offered the following explanation related to this price tag, which I feel applies to the idea of creating a more individualized system of education, “to say that this spending is not politically realistic is not the same as to say that it is unaffordable. An average annual spending increase of $156 billion is only about two-thirds of the average annual cost of federal tax cuts enacted since 2001” (p. 145).

Big Brother, Big Responsibility: Faculty Emails, Open-Records Acts & FERPA Compliance

Utilizing an open-records request to uncover faculty emails, records, and other personal and professional documents is something of a controversial topic and, increasingly, a cause for debate. Earlier this year, contributing editor to The EdJurists, Dr. Neal Hutchens, et al., published an article [1] in the Chronicle of Higher Education discussing a few such cases—including a request lodged by a political advocacy group to access a law professor’s documents after the latter authored a political opinion piece [2] criticizing the state’s governor. Dr. Hutchens and his co-authors underscore an important consideration in the dialogue about public access to faculty documents. The prevailing issue with these requests isn’t the important interests of transparency and accountability that state open-records acts demand; rather, the problem is that these requests are often used to suppress debate, and even harass faculty. However, state legislatures have begun --and may continue--to remove unfinished research, [3] or other certain types of faculty communication unrelated to government functions from the scope of disclosure under state open-records laws. [4] Dr. Hutchens and his co-authors also wisely suggest that courts and institutions should balance between the interests of disclosure and academic freedom. However, instead of spilling more ink on what Dr. Hutchens, et al., have ably discussed, I would like to briefly investigate another quadrant of the “access to information” map.

My last post dealt with the proliferation of student data collection, [5] which seems to be experiencing something of an upswing amidst privacy concerns. [6] The topic of student data privacy concerns is not far afield from, and in fact inextricably linked to, faculty privacy concerns. This is because open-records requests for faculty emails and other records or communications not only impact academic freedoms; they may have a chilling effect on day-to-day faculty responsibilities. Sometimes, between faculty, there are justified reasons for sharing identifiable student data, or other critical student information, particularly to serve a legitimate educational interest or even to address a health or safety emergency. Generally speaking, a faculty member’s email records at a public postsecondary institution may not be exempt from an open-records request. Furthermore, it may be difficult or impossible to search, cull out, and redact emails containing potentially private student data in the open-records request window. This means any resident of the state (including the press, a political organization, or a student's parent) could gain access to faculty emails with sensitive information. Assuming, arguendo, that this situation occurred, it risks disclosing protected information to someone who presumably has no legitimate educational interest in it, and would directly violate FERPA. [7] While most states’ open-records laws would shield faculty email correspondence in such an instance, as a practical matter, this example illustrates the need for expanded exemptions to open-records laws in the interest of student--and faculty--privacy. Ultimately, this issue is more than just a student or faculty issue; it is a systemic issue that, sooner or later, all educational institutions (and state legislatures) must address.

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[1] Neal H. Hutchens, Jeffery C. Sun, Karen Miksch, Open-Records Requests and Academic Freedom, Chronicle of Higher Educ. (Jan. 10, 2014), available at http://chronicle.com/blogs/conversation/2014/01/10/open-records-requests-and-academic-freedom/. While this trend seems to have increased in recent years, as Dr. Hutchens and his co-authors note, the “weaponization” of open-records laws to harass a speaker or impair an organization’s work was earlier catalogued in a 2006 Journal or Higher Education article. See Michael K. McLendon, James C. Hearn, Mandated Openness in Public Higher Education: A Field Study of State Sunshine Laws and Institutional Governance, 77 J. of Higher Educ. 645 (2006). For a discussion of the response one university faculty has made addressing the problems Dr. Hutchens’ article discusses, see Colleen Flaherty, Protecting Faculty Records, Inside Higher Ed (Jan. 14, 2014), available at http://www.insidehighered.com/news/2014/01/14/ucla-produces-statement-designed-protect-faculty-inappropriate-open-records-requests.

[2] Gene Nichol, McCrory’s Stands Strain His Ties, News & Observer (Oct. 14, 2013), available at http://www.newsobserver.com/2013/10/14/3281798/mccrorys-stands-strain-his-ties.html. To be fair to the Civitas Institute, Mr. Nichol’s criticism verged on the ad hominem--not a great look for a former university president. Id.

[3] See, e.g., N.J. Rev. Stat. Ann. § 47:1A-1.1 (2014); Ohio Rev. Code Ann. § 149.43(A)(5) (2014).

[4] See, e.g., Ga. Code Ann. § 50:18-72 (35) (2014).

[5] CJ Ryan, Private Eyes: FERPA and Student Data Security Breaches, The Edjurists (Apr. 2, 2014 at 8:50 pm), available at http://www.edjurist.com/blog/.

[6] See, e.g., Benjamin Herold, Danger Posed by Student-Data Breaches Prompts Action, Educ. Week (Jan. 22, 2014), available at http://www.edweek.org/ew/articles/2014/01/22/18dataharm_ep.h33.html?tkn=LSOFCCaHP3qLAhA8rjypHkxMwnf%2BBfllt9Vy&cmp=clp-edweek. Even critics of the No Child Left Behind Act, Pub. L. No. 107-110, 115 Stat. 1425 (2002), acknowledge that the act promoted a salutatory leap in data collection--generally thought to be a good thing. However, the rate at which data collection has increased since the passage of the act, and more importantly, the kind of data collected, has caused alarm in recent months, particularly among opponents of the Common Core. Perhaps concerns like these prompted a modest response from the U.S. Department of Education on responsible collection of student data through online educational vehicles. U.S. Dept. of Educ., Protecting Student Privacy While Using Online Educational Services: Requirements and Best Practices, Feb. 2014, available at http://ptac.ed.gov/sites/default/files/Student%20Privacy%20and%20Online%20Educational%20Services%20%28February%202014%29.pdf.

[7] 20 U.S.C. 1232g(b). As a result of this federal statute’s requirements, some public postsecondary institutions explicitly discourage or altogether disallow their faculty and staff members’ posting protected student information in email correspondence, but as the statue does, carve out an exception for records kept in the sole possession of the record’s creator. Compare Office of the Registrar, Preserving Student Privacy, Univ. of Cal. Davis, available at http://registrar.ucdavis.edu/faculty-staff/privacy/ (containing in pertinent part: “Students have a right to access most information in the records that the University maintains about them, including e-mail messages between faculty or staff that refer or relate to them. Knowing that a student might read your e-mail message later, keep your e-mail messages focused on facts and try to avoid communicating subjective judgments.”) with Univ. Registrar, FERPA Guidelines for Faculty, Staff, and Students, Univ. of La. Monroe 5, available at http://www.ulm.edu/registrar/ferpa.pdf (strictly prohibiting: “[t]he transmission of grades electronically (e-mail) to any party, including the respective student . . . even at the student’s verbal or written request. Such transmissions could result in a privacy violation because they may not be secure and could be retrieved by an unauthorized party.”).

Education Law: A Year in Review Policy Institute

The Education Law & Policy Institute at Loyola University School of Law is holding an event entitled “Education Law:  A Year in Review” on June 25, 2014 from 1-5 p.m. The seminar will address important developments in the area of education law during the past year. Topics to be addressed include recent federal guidance on school discipline, bullying, and sexual violence; best practices in special education due process hearings; and other hot topics in the area of education law. CLE credit is available, and a reception will follow the program. For the full program and to register, click here.

Martha McCarthy Education Law & Policy Summer Institute

Looking for some Education Law Training this summer? 

June 12, 2014
9 a.m. to 5 p.m.

The Institute program will include several national speakers discussing current developments in school law including special education, bullying and harassment, and teacher evaluation.

For more information, check out the website at http://education.indiana.edu/graduate/programs/ed-leadership/mccarthy-institute.html

Securing Freedom through Civic Education

I recently heard Dr. Os Guinness speak about the importance of the U.S. Constitution and the American experiment with freedom. Dr. Guinness argues that the U.S. is facing a gathering crisis of freedom and that we must act to protect our freedom.

Although we as Americans celebrate the freedom that we won in 1776, that was really just the first step in our great experiment. Next our founding fathers ordered freedom by setting its parameters in the Constitution. The framers of the Constitution placed much importance on gaining freedoms as on keeping them. They wanted a free republic that would last forever. Now maintaining freedom is our most important task as a nation. 

Dr. Guiness describes the paradox of freedom--that freedom is its own worst enemy. Freedom can be undermined in times of prosperity because people stray from the principles that tie us together as a nation and protect freedom. Freedom can also be damaged by actions that are desgined to protect us such as terrorism survelliance. 

It is returning to the first principles that is the most important step in maintaining freedom, according to Dr. Guiness. He describes a Golden Triangle of Freedom involving freedom, virtue and faith where freedom depends on virtue, virtue requires faith of some sort, and faith depends upon freedom to survive. Sustainable freedom depends upon the charater of the rulers and trust between rules and citizens. Only a virtuous people are capable of freedom. 

Although key to the survival of our democracy, since the 1960s, civic education has disappeared from our schools. Reintroducing civic education would return our nation to a common understanding of our the first principles or virtues upon which our nation was built and protect our freedom, particularly our freedom of conscience. He describes it like the bedding in which the Constitution sits. If the bedding is corrupted, the Constitution will fail. This would allow for a re-opening of the public square where every American would be able to speak their mind based on their own values, including religious values. 

He concluded that we need a renewal of faith and an end to culture warring.  The next chapter is crucial. Just like a novel, the hardest part of a revolution to write is the ending.  The chapter that the next generation writes will be critical for sustaining the USA.

Although I haven't read his books, as a supporter of civic education, I thought Dr. Guiness's arguments were important. I think civic education is something that we as Americans can all agree to support.

Having studied Establishment Clause jurisprudence, though, I understand why church and state are separate in the U.S. in the sense that laws cannot promote or inhibit religion, particularly in public schools. Yet as currently practiced it creates a conundrum where thousands of Americans feel excluded from the public square because their views are based on their closely held religious beliefs and these views cannot be used as the official basis for new laws. Instead, Americans who are driven by religious convictions to pursue worthy causes that better society as a whole must explain them in secular ways in order to be heard and taken seriously. Dr. Guiness argues that this exclusion is more serious than just a feeling of exclusion; instead it threatens to undermine the foundation of Constitution itself because it is these principles that undergird our original freedoms. I think what he envisions is an American society that would more readily welcome relgious views into the public sphere while still maintaining the formal separation, so that the laws themselves would not promote or discourage religion but that individual citizens are able to openly discuss their views in religious terms if they want to but then lawmakers decide to pursue or not based on the needs of the society. This reintroduction of civic education and a welcoming of religious voices into the public square would return the concepts of virtue and first principles back into the national conversation.

The Need for a Test to Help Courts Make Sense of Off-campus Student Speech

I have recently begun preparing for a paper I will co-author and present with Dr. Amy Dagley at Education Law Association's annual conference in San Diego where we examine trends in adjudicated free speech lawsuits involving off-campus communication resulting in on-campus discipline. This preparation included reading Benjamin L. Ellison’s opinion published in 2010 (85 Notre Dame L. Rev. 809). What struck me in Ellison’s piece was the following statement, “A test is needed to mark the boundaries of free speech protection from school discipline over speech that originates off campus.”

Ellison reviewed what other scholars have written on the subject of a test and then offered his own ideas. I would like to summarize the tests Ellison included in his opinion:

Tuneski advocated for an intent-focused test that would permit on-campus discipline if the student’s off-campus communication was directed toward the school, students at school, or school officials. The obvious challenge with this test is proving intent.

Adamovich argued that the standard for government employee speech should be applied to students’ off-campus communications. Specifically, Adamovich identified four points in determining if a student can be punished for off-campus communication: 1) intent, 2) “the number of listeners, 3) the nexus between the student speech and school operations; 4) the level of disruption” caused by the speech. Brenton and Servance also argued for nexus-based tests.

Pike differentiates between active and passive student communication. Active communications include email, text messaging, tweets, and phone calls. Passive communications are web pages, blogs, and social networking profiles. Ultimately, Pike argued that school officials should only be able to limit active forms of student off-campus communication.

Finally, Ellison offered a test that focused on pure intent and location. By pure intent, Ellison suggested that if school officials can prove that the student told others about the off-campus communication or showed others at school a website then intent has been established.  This definition of off-campus speech could be applied to all types of communication – electronic, print, etc.  With location, Ellison suggested that once school officials establish intent then the location transfers from off-campus to on-campus.

With that superficial summary of the different tests, I am interested in hearing what EdJurists bloggers and readers think on this topic. In effect, I am wanting to transition from one-way communication to a more interactive two-way discussion. I am also a bit of a dreamer and I think it would be commendable if this community of legal scholars were to develop its own test that appropriately differentiated between off-campus speech that is completely protected by the First Amendment and off-campus speech that should result in on-campus consequences. I am of the opinion that, ultimately, a test related to off-campus communication must adhere to the guidelines established in the student speech trilogy (Tinker, Fraser, and Hazelwood).

I look forward to reading what others think on this subject.

Auburn Looking for Education Law/Finance Expert

It is late in the typical job cycle for the year, but Auburn University has posted an assistant professor position in education leadership with a focus on education law and finance. The position is such that I think they would hire a new graduate potentially, depending on the pool.  

This would be a great job. I know some of the team members at Auburn and they are a strong program, at a strong university, and only a couple hours from the beach! 

Private Eyes: FERPA & Student Data Security Breaches

It is something of a truism to say that data collection is integral to individualizing student learning, providing educators with immediate feedback on the success of pedagogical delivery methods, and supporting successful educational methods with evidence-based rationale. To serve these important goals, states now have large-scale longitudinal information systems and upload large quantities of student data in an effort to track student performance over time. [1] Even local school districts now contract with third-party providers of database management, [2] storing everything from contact information and curriculum planning, to grades, test scores, disciplinary data, Social Security numbers, health information—representing extremely confidential information. [3] But, as with all data, when this information is not properly guarded, it is low-hanging fruit for the unscrupulous digital underworld. [4]

It should be noted that recent changes to the Family Educational Rights and Privacy Act (FERPA), relaxed security measures for this data. For example, under the prior regime, schools were required to obtain parental permission before sharing information in their school’s educational record. [5] Now, schools may disclose directory information (such as name, address, phone-number)—even to third-party vendors—so long as parents are provided the opportunity to opt out of any such releases. [6] But a concern greater than third-party vendor access to student information is that security breakdowns in confidential student data, particularly P-12 student data, may result in identify-theft fallout, which may not be known for years.

The call for safeguards to student data [7] exposes the shortcomings of the latest changes to the FERPA regime. While debate may continue over whether a student or student’s family’s ability (or right) to limit who collects or maintains information, including the data that companies and schools collect and retain, at the very least, students should have a right to responsible, secure data collection practices. A lot of ground lies between codifying this right into FERPA and granting a private right of action for violations of FERPA (which is currently unavailable to a victim of a FERPA violation); perhaps, it is time that policy and law makers tilt the pendulum back in the direction of privacy.

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[1] See Benjamin Herold, States Make Progress on Data Systems, Advocacy Group Reports, Educ. Week (Nov. 19, 2013), available at http://www.edweek.org/ew/articles/2013/11/19/13data.h33.html.

[2] See Natasha Singer, Deciding Who Sees Student Data, N.Y. Times (Oct. 5, 2013), available at http://www.nytimes.com/2013/10/06/business/deciding-who-sees-students-data.html?_r=0. Yet, for a fairly nascent cottage industry, the education technology software industry for pre-kindergarten to twelfth grade represents an $8 billion market. Id. See also, Natasha Singer, Regulators Weigh in on Online Educational Services, N.Y. Times (Feb. 25, 2014), available at http://bits.blogs.nytimes.com/2014/02/25/regulators-weigh-in-on-online-educational-services/?_php=true&_type=blogs&ref=education&_r=0.

[3] See Benjamin Herold, Danger Posed by Student-Data Breaches Prompts Action, Educ. Week (Jan. 22, 2014), available at http://www.edweek.org/ew/articles/2014/01/22/18dataharm_ep.h33.html?tkn=LSOFCCaHP3qLAhA8rjypHkxMwnf%2BBfllt9Vy&cmp=clp-edweek.

[4] In recent months, student data breaches have occurred in Loudon County, VA, Chicago, IL, Tallahassee, FL, and Long Island, NY. “The 71,000-student Loudoun County [Virginia] public schools was thrust into damage-control mode last month after an outside vendor, New York City-based Risk Solutions International, inadvertently uploaded and left unprotected some schools’ emergency evacuation plans, as well as ‘directory information’ that included students’ names, addresses, telephone numbers, dates and places of birth, course schedules, and attendance histories . . . . Last November, the [Chicago school] district reported that 2,000 students participating in a free vision-examination program offered by the city had their names, dates of birth, gender, and ID numbers, as well as information from their exams, accidentally posted online. . . . In June, the Tallahassee Democrat reported that roughly 47,000 participants in state teacher-preparation programs had their personal information—including names and in some cases Social Security numbers—posted on the Internet for two weeks last spring. The information was being stored by Florida State University. . . . The 12,000-student Sachem Central School District [on Long Island, NY] suffered three data-security breaches in recent months, including one in which the names, ID numbers, and designations for free-lunch programs of 15,000 former students were posted online, according to a Newsday report.” Herold, supra note 3. Florida State is not the only postsecondary institution to fall victim to a data breach; Indiana University has spent more than $80,000 responding to a data breach that exposed the names, addresses and social security numbers of students enrolled at any of the IU’s campuses from 2011 to 2014. Data Breach Response Costs IU More Than $80,000, Diverse Issues in Higher Educ. (March 17, 2014), available at http://diverseeducation.com/article/61254/.

[5] See, generally, 20 U.S.C. § 1232g (2007); Parents’ Guide to the Family Education Rights and Privacy Act: Rights Regarding Children’s Educational Records, U.S. Dept. of Educ. (Oct. 2007), available at http://www2.ed.gov/policy/gen/guid/fpco/brochures/parents.html.

[6] See, generally, 20 U.S.C. § 1232g (2011); Revised FERPA Regulations: An Overview for Parents and Students, U.S. Dept. of Educ. (Dec. 2011), available at http://www2.ed.gov/policy/gen/guid/fpco/pdf/parentoverview.pdf.

[7] In December 2013, the Electronic Privacy Information Center, a Washington-based nonprofit, filed a complaint with the Federal Trade Commission accusing the popular financial-aid website Scholarships.com of selling sensitive student information to third-party marketers without adequate disclosures. See Herold, supra note 3. To that end, Common Sense Media announced a new initiative last week to encourage the educational technology industry to safeguard student data from falling into the hands of corporate interests. See Ben Kamisar, Group Calls on Companies to Safeguard Student Data, Educ. Week (Jan. 22, 2014), available at http://www.edweek.org/ew/articles/2013/10/23/09privacy.h33.html?tkn=XVTFfIPR7XvFa3FV7mZ0a5%2B8aYacxuog25JF&cmp=clp-edweek. See also Valerie Strauss, Why a ‘Student Privacy Bill of Rights’ is Desperately Needed, Wash. Post (March 6, 2014), available at http://www.washingtonpost.com/blogs/answer-sheet/wp/2014/03/06/why-a-student-privacy-bill-of-rights-is-desperately-needed/; Adrienne Lu, Protecting Student Privacy in the Data Age, USA Today (Dec. 17, 2013), available at http://www.usatoday.com/story/news/nation/2013/12/17/stateline-student-privacy-%0A%0Adata-education/4054307/.

Should an Educational Leader's Testimonial Speech be Protected?

Imagine that you are an educational leader hired to head up an important community college program for at-risk youth.  In your first days on the job, you do what any good leader does and audit the books.  Through this review, you discover that you have an employee who is drawing a large salary from the program, but is not doing much, if any, work.  You do some further digging, and you realize that this "employee" with the "no-show" job is also a sitting state legislator.  You care about your fiduciary duty over the public money you've been entrusted, so you confront the no-show employee and request that she begin showing up and working.  She not only refuses, but also threatens your livelihood.  You are not a coward, so you fire her.  Not only that, but when subpoenaed, you testify truthfully against her in her criminal trial once the feds discover her fraud.  Soon after, you are fired. 

You file suit against your former employer to challenge your termination as retaliation for your speech as a citizen on a matter of public concern.  But the District Court, and later the Circuit Court of Appeals, reject your challenge, citing the Suprme Court's recent decision in Garcetti v. Ceballos.  In Garcetti, the Court held that, "when public employees speak pursuant to their official duties, they do not speak as citizens, and the First Amendment does not shield their communications from employer discipline."  Essentially, speech that a public employee is hired to make is not that employee's own speech, but his work product, and may therefore be the basis of employer discipline.  The Circuit Court cites Garcetti and reasons that, because you testified only about matters you learned about at work, your testimonial speech "owe[d] its existence" to your employment, and was therefore made "pursuant to [your] official duties."  Notwithstanding the Garcetti rule, the Circuit Court proclaims that it is immaterial that your job does not require you to testify in judicial proceedings, as long as your testimony is about your job. 

Should this judicial sleight-of-hand resulting in an unbelievably expansive reading of the Garcetti exemption be allowed to stand?  In Lane v. Franks, the Court will consider the question on alleged facts similar to those in the vignette above.  Along with Professors Paul Secunda and Sheldon Nahmod, and on behalf of more than 60 other law professors, I have written an amicus brief (free download) arguing for the reversal of the 11th Circuit's flawed reading of Garcetti.  The case will be argued on April 28th, and it could have major implications for public employees--including educational employees--nationwide. 

Title IX and Teen Parents

Title IX of the Education Amendments of 1972 states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Since the passage of Title IX, school officials have been scrambling to ensure a documentable degree of equity between genders in every aspect of public school governance.

With that backdrop, I would like to summarize a conversation I recently had with a doctoral student. This female student was a teen parent who gave birth to her first child while in high school. She is now a principal of a school for students that are either pregnant or caring for their own children while completing the requirements for graduation (often referred to as “mothers school”). Students that attend her school, all of whom are female, choose this alternative setting for a number of reasons: access to free childcare while in school, specific emotional support provided to teen mothers from both the staff and the other students, and a learning environment that validates teen mothers’ adjusted priorities.

However, a majority of those who choose attend alternative schools for teen mothers also choose to loose access to a number of services found at traditional secondary schools. For example, most schools for teen mothers do not provide their students access to advanced curriculum such as honors or advanced placement courses. In addition, those attending mother schools seldom have access to transportation services through the school district.

As I have processed these facts, I have come to the conclusion that teen mothers are being forced to choose between access to an advanced curriculum and childcare. For some teen mothers, there is no choice – childcare will always win out over other factors. The irony, and potential legal pitfall, is that the teen fathers are not being asked to make similar choices. I recall a situation when I taught high school in Utah where two juniors had a relationship that resulted in the female student becoming pregnant. She gave birth over the summer and finished her schooling in an alternative setting her senior year while raising her newborn. The father, on the other hand, was the starting fullback for the football team in the fall and graduated with his peers. The differences in how these two students were treated stemmed exclusively from their gender.

I feel like teen mothers are being excluded from participating in advanced curriculum options based on their gender and this practice appears to violate Title IX. The evidence for the claim of discrimination based on gender lies in the fact that teen fathers are not facing the same difficult choices – childcare versus AP calculus.

Virtual Snow Days

Living in Michigan, the articles about virtual snow days have caught my attention this year. We have been pounded by bad weather this season, a combination of extreme low temperatures and higher than average snowfall. My kids have already missed 8 days due to bad weather, and some districts have missed more days. 

Michigan law provides many opportunities for virtual learning for K-12 students. The legislature has authorized 5 virtual charter schools and all public school students can take 2 virtual courses per marking period (Mich. Comp. Laws 388.1621f). For more flexibility, school districts can apply for students to receive seat time waivers, so they are able to receive their education without physically attending school. Yet, the Department of Education hasn't yet addressed the idea of virtual snow days. 

Are virtual snow days possible in Michigan? Probably not.

School districts are required to provide 1098 hours of instruction over at least 175 days to K-12 students. To count instructional hours for a particular building, pupils and certified teachers must be present and engaged in instruction. This instruction must be scheduled in advance and be available for the entire student population (MDE, Pupil Accounting Manual 2013). The requirement that pupils and certified teachers be "present" most likely means "physically present" because it is referring to counting hours per school building. Therefore, Michigan would have to change its Pupil Accounting Manual to allow for virtual attendance during snow days in order for this to be possible. 

As Michigan continues to develop its online educational practices, I think this is something to seriously consider as an option to allow students to learn in a way that is less disrupted by the state's sometimes extreme weather conditions.

Here is an article about the practice in New Jersey: http://www.cnn.com/2014/02/23/living/snow-days-virtual-schools/ The article describes the practice but says schools don't know if the instructional time will actually count towards the State's requirements.

ELA Submission Deadline: March 1

Just a heads up that the ELA submission deadline is this Saturday, March 1. 

Here are the details on the conference and here is the call for papers. 

ELA this year is in San Diego from Nov. 3-7. See you all there. 

School Law Position at Tennessee

For those interested. 

Love to have a great school law person as my southern neighbor. 

Sanity with Zero-Tolerance (Finally)

I hate zero-tolerance policies. Always have. They are just wholly unnecessary, legally silly, probably discriminatory, generally bad for kids and, on top of all that, don't even work. 

So, to my delight, finally zero-tolerance seems to have the worst of it in policy circles lately. Credit to Arne Duncan and the U.S. DOE for releasing new guidance last week that tries to put the brakes on mandatory suspensions and expulsions. I think the Secretary has intelligent things to say in this release video:   

The bottom line is that the law entrusts principals and other school leaders with the discretion to make appropriate decisions toward novel situations amongst kids. These disciplinary decisions can be incredibly difficult with intense lobbying on all sides. Many tears are shed and sleepless nights suffered over how to appropriately discipline kids. But, that is the job. It is a core function of a school leader and the manifestation of the trust provided to that position in our society. To attempt locally to shirk that responsibility through the use of hastily adopted zero-tolerance policies is cowardly. The policy position may appear tough, but it actually speaks to the weakness of the proposer. 

I am glad to see the light at the end of the dark, dark tunnel of zero-tolerance. 

Complying with Copyright Just Got Easier

One of the huge areas of potential copyright violations if you are a techy like me are around images. I post images to the blog, add them into my powerpoints, upload them to sites, ... so available images to use are important to me. All those same uses also apply to our kids and teachers in schools everyday.

On the web, only a few images are available to use without a direct copyright violation though. I usually try to find those images when producing documents, but it can be difficult. Compflight is a great tool and there are others such as the Creative Common search. These search engines take extra time to search and their search functions are not as powerful as core search giants like Google, Bing, and Yahoo. 

Well, Google has made this process easier by adding a licensure limitation on your image search directly on the search page (see image). Here is the procedure:

(1) run a search (such as "education law" below),

(2) go to "Images,"

(3) click "search tools," 

(4) use the "Usage Rights" drop down to select the licensure category. 

Now, this is not a fool proof method in that Google is not guaranteeing the license.  To be safe you need to independently check the license, but it is a great time saver and a really good step by Google during this Copyright Week to make the world a slightly more functional place (even if this doesn't address the core issue of the broken copyright system).