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From the Blogs

The information on this site does not constitute legal advice and is for educational purposes only. If you have a dispute or legal problem, please consult an attorney licensed to practice law in your state. Additionally, the information and views presented on this blog are solely the responsibility of Justin Bathon personally, or the other contributors, personally, and do not represent the views of the University of Kentucky or the institutional employer of any of the contributing editors.


Legal Literacy at the Education Law Association Conference

Today I attended a session at the Education Law Association entitled “Legal Literacy: The View for the Education Law Bar” by Mark Paige (University of Massachusetts-Dartmouth) and Vince Connolly (University of New Hampshire). They shared their results from a survey of education law attorneys about what legal issues administrators and teachers need the most support from attorneys.

A key point underlying the study is that school administrators and teachers must have a working knowledge of the law in order to do their jobs. One definition of ”legal literacy” that was promoted during the session was a deep interconnected knowledge about school legal issues so school leaders and teachers have a sense of what to do in certain legal situations and knowing when they should call a lawyer for assistance.

Administrators need guidance on issues surrounding discipline, teacher employment & termination, teacher evaluation, first amendment rights of teachers & students. Other important issues include sexual harassment, Office of Civil Rights investigations, and discrimination issues in schools.

Teachers need guidance on bullying, teacher evaluation, special education services, student records, student First Amendment rights, and student discipline.

What was interesting about this study is that the legal issues differ based on the role individuals play in schools. Educational leadership programs are cognizant of this fact when they design courses to inform school personnel about relevant legal issues and principles. I look forward to learning more from this study about key legal issues and how to promote legal literacy as this work continues.  


New Book Provides Insight into Preventing Special Education Litigation

TC Press recently released the book, How to Prevent Special Education Litigation: Eight Legal Lessons. This book provides key information regarding eight topics in special education law that all educators need to know. It is designed to allow anyone working in a school to easily teach others about these topics. It does so by answering the following questions through a series of engaging activities:

Why learn about special education law?

What are the main entitlements and protections?

Who is eligible for special education?

How can we ensure an appropriate IEP?

What does it mean to teach students in the least restrictive environment?

How are students with disabilities disciplined differently?

Why must we plan for students' lives beyond high school?

Why is fostering positive family-school relationships important?

The book was written by Regina Umpstead, Janet R. Decker, Kevin P. Brady, David Schimmel and Matthew Millitello.

Regina Umpstead is an associate professor of educational leadership at Central Michigan University. Janet R. Decker is an assistant professor of educational leadership at Indiana University’s School of Education. Kevin P. Brady is an associate professor in the Department of Curriculum and Instruction at the University of Arkansas. David Schimmel is professor emeritus at the University of Massachusetts, Amherst. Matthew Militello is a professor and the Wells Fargo Endowed Chair of Educational Leadership at East Carolina University.


Colorado’s Supreme Court Fails to Negate the Negative Factor

For years Colorado policymakers have been between the proverbial rock and a hard place due to amendments added to the state constitution. Indulge me as I offer an overly simplistic summary of these constitutional amendments, presented in chronological order:


Gallagher Amendment – Amended in 1982, the purpose of the Gallagher Amendment was to stabilize mill rates levied on personal property owners. In short, the ratio between tax revenue generated by residential and non-residential properties was frozen in 1982 (the ratio was and still is 45:55 with 45% of all the revenue raised through property tax coming from residential properties and 55% coming from non-residential properties). However, over time, the sheer volume of residential properties and the individual value of each property have significantly increased since 1982. As a result, the taxable portion of residential properties has decreased from 30% in 1982 to 7.96% in 2015 and a greater tax burden is placed on non-residential properties.


The Taxpayer Bill of Rights (TABOR) – TABOR was amended to the state constitution in 1992 and requires that all voters approve proposed tax increases as opposed to allowing elected officials to enact tax hikes. TABOR’s purpose was to starve the beast, or restrict the flow of money to state government. It has been estimated that TABOR and Gallagher, working together, have resulted in an annual loss of $1.5 to $2.2 billion of public education dollars.


Amendment 23 – Amended in 2000, Amendment 23 was designed to ensure that public education in Colorado would always receive an increase to the base funding level equal to the rate of inflation plus 1%. Ironically, when Amendment 23 was added to the state constitution, Colorado was roughly $700 below the national average in per pupil funding. Today, Colorado is over $1,400 below the national average.


These three amendments seemed to peacefully co-exist from 2000 to 2010. However, with the Great Recession of 2008 and its subsequent decline in state revenue, the state legislature discovered in 2010 that it could no longer fund all of the social programs with the existing revenue streams. TABOR presented significant barriers to policymakers passing a tax increase to address the loss of revenues since any tax increase would have to be approved by Colorado voters. As a result, Colorado policymakers were left with one option – cut the state budget.


Amendment 23 proved to be a major obstacle in balancing the budget and ensuring other state obligations were sufficiently funded in 2010. Policymakers analyzed the wording of Amendment 23, which guaranteed an increase in funding for public education of inflation plus 1% to the current base funding level. Base became the focus as elected officials desperately looked for ways to make the state budget work despite the reduction in revenues.


The solution was dubbed the negative factor. The negative factor drew a line of distinction between the base funding and the factors incorporated in the state funding formula. The decision was made to only apply Amendment 23 to the base funding and exclude the factors from the constitutional guarantee of a funding increase of inflation plus 1%. In Colorado there is an identical per-student funding level for all 178 school districts and this figure continues to increase by inflation plus 1% even after the negative factor was instituted in 2010. However, factors that were no longer subject to the increase due to the negative factor included the different weights in the state funding formula for at-risk student populations, cost of living, and size of the school district. In addition, local contributions to a school district were also excluded from the inflation plus 1% increase.


In effect, the negative factor works in the following fashion. The state provides local school districts with full funding in accordance with Amendment 23 and then implements the negative factor, which requires school districts to return a portion of that full funding to the state. Over the years, the negative factor has resulted in over $5 billion dollars being redirected from school districts back to the state. For the current 2015-2016 school year the negative factor will reallocate $855 million dollars.


On September 21 the Colorado Supreme Court handed down a 4-3 decision rejecting a claim contending the negative factor was unconstitutional. The lawsuit, Dwyer v. State of Colorado, sought to end the use of the negative factor and restore public education in Colorado to the perceived proper levels of funding. However, the state supreme court interpreted the wording of Amendment 23 to only require the predetermined increased to the base per pupil funding as opposed to the total per pupil funding. The state supreme court interpreted base in the most restrictive manner possible, thus validating the practice of the negative factor.


This ruling is a disappointment for advocates of public education in Colorado given the fact that the state supreme court also ruled in favor of the state in the recent school finance lawsuit (Lobato). However, I am of the opinion that both Lobato and Dwyer are, ultimately, missing the mark. To illustrate this point I would like to stress that if the state supreme court had ruled that the negative factor was unconstitutional then policymakers would have faced a different dilemma. Instead of underfunding public education, policymakers would have had to cut other aspects of the state budget in order to properly fund public education. In short, there is not a cache of money sitting in some account that state policymakers could access to fund the negative factor. Instead, there is insufficient revenue in Colorado to properly fund all of the social programs throughout the state.


The proper solution for the state of Colorado is to tackle the issue of TABOR and the Gallagher Amendments. These two anti-tax amendments have successfully starved the beast and are now beginning to restrict the state revenue sources to a dangerous point. In public education across the state vital programs are being reduced or eliminated. In addition, class sizes are on the rise throughout the state. Despite all of these cuts, Colorado educators continue to do amazing work in the classroom. However, in order to truly have a “world class” system of education in Colorado policymakers and voters must be willing to add revenue to the state coffers.


Michigan A Top 10 Education State (in the next 10 years)

Michigan's State Board of Education spent the day today listening to presentations from state officials and education association representatives on what needs to be done to make Michigan a top 10 education state in the next 10 years. Currently, Michigan is in the bottom 15 states ranked by student academic performance. Amber Arellano (Education Trust MidWest) reported that student achievement has declined in Michigan over the past few years, and Jeff Guilfoyle (Public Sector Consultants) explained that this decline was likely due to the economic crisis that resulted in an increase in students living in poverty in the state. There is also declining enrollment in the public schools because of a reduction in Michigan's population and increased competition for student enrollment. All of the presenters agreed that improving Michigan's educational system and it student outcomes is a worthy goal.

I noted many of the recommendations made today regarding things that the State Board of Education should consider on this journey to recreate Michigan into a top 10 education state. Here is what the presenters shared:

  • Invest in early childhood education.
  • Make sure all kids are in school. Address barriers to attendance such as discipline policies and support for students.
  • Raise the expectations and close the achievement gaps for all students in Michigan's schools.
  • Define common curricular standards for all students. Develop a coherent policy for teachers to implement. Early literacy is key for academic success in all areas. Do not narrow the curriculum; instead keep the arts, music, and literature for a well rounded education.
  • Personalize education for all students.
  • Address the needs of students with disabilities.
  • Assessments: Reduce standardized tests so they are used as benchmarks every few years &/or Use assessments to guide instruction.
  • Enhance school choice (at least within current public school options).
  • Engage parents. Strengthen the school to home connection.
  • Allow students to take more ownership in the school and in their own education.
  • Encourage site based management with parent & community collaboration.
  • Educators matter.  Honor the profession and compensate them fairly. Provide more professional development. Use evaluations to provide meaningful feedback. Employ and retain effective teachers. Solicit their input on changes to our educational system.
  • Bring in talented people even if they are not traditionally trained.
  • The classroom is key.
  • Make clear connections for students to post secondary education.
  • Fix the funding formula in light of Michigan's declining student population and increasing completion among schools for these monies. Equalize spending among districts. Consider more money for higher cost to educate students (poverty, special needs, etc.).
  • The charter schools association recommended that the State develop a school accountability system that would close poor performing public schools. The unions recommended that charter schools be required to have a certificate of need in order to open new schools within a community.

Many presenters talked of using bold solutions to address big problems that involve transformational leadership and approaching school reform in new ways. Sandra York of the Parent Teacher Association recommended that Michigan set a goal of maximizing the options of all students in the state.

Bruce Umpstead (Scaleup Education Partners) & I presented a vision of Michigan having all students engaged in meaningful tasks that result in authentic and beautiful work based on our experience last year at High Tech High in San Diego. Their philosophy is one of integrated learning where all students take the same core classes together, teachers (rather than textbooks) design the learning experience, and students drive their own learning. It is a system where equity is embraced, each person is treated with dignity, and all students engage in deeper learning.

The Michigan Board of Education has a big task ahead of them in setting the direction for the future of our educational system. My hope is that we will come together and develop a meaningul educational experience for all of our kids where they can engage in authentic tasks that make a difference in their schools and communities today and prepare them for success in the future.


Education Law Association Conference, Nov. 4-7, 2015

Watch this video  about the Education Law Association Conference in Cleveland, OH on Nov. 4-7, 2015. I go every year to stay updated on education law topics and to stay connected to others in the field.


Here is the link to the website to sign up to attend the conference:


Education Law Presentation Opportunity

The Education Law Association is hosting its 61st Annual Conference in Cleveland, OH on Nov. 4-7, 2015. It is a great opportunity to meet individuals from around the country in the education law field and to present your work. Proposals for roundtable and poster sessions are due by July 15th. Apply today!


My Concern for the Future of Public Education

I love public education. I am honored to have worked as a teacher and an administrator in public schools for 15 years in two different states. I am an unabashed proponent of public education and I genuinely believe that public education provides most (I wish I could write all) students with the opportunity to reach their potential.


It is with that backdrop that I wish to recount the following experience I had a couple of weeks ago in a course I teach to aspiring educational leaders. The curriculum of the course provides students the opportunity to explore external influences on the governance of public education and one of the assignments requires students to work in small groups to develop a mutually beneficial partnership between a school and an outside agency. One of the partnership proposals called for a union between an elementary school and a series of museums within a particular town. The net result of this partnership would produce greater exposure for the local museums and provide the students with the opportunity to study, in depth, various historical figures. The students would even dress up as the historical figures and create a living museum experience one evening (much like the movie Night at the Museum).


As a former US history teacher, I loved this idea. In fact, I have actually seen the school that my own children attend do this very activity and I have witnessed, first hand, the benefits it had on them. My children will never forget about Temple Grandin and Walt Disney because they got to be these historical characters for a night. So, I was genuinely surprised when, at the end of the presentation on this innovative idea to help history come alive for elementary students, the first two questions that other students asked were:


How many standards will be covered in this activity?


You are going to dedicate four months to this activity and you will only be able to cover how many standards?


I was shocked by these questions and I left this class genuinely concerned for the future of public education. Since this is a legal blog, I will now attempt to articulate my concerns and link those concerns to existing statutes. Why am I concerned for public education? My fear is that accountability and assessment, both essential components of public education, have succeeded in limiting the scope of creativity within educators. I have the privilege to work with an amazing group of aspiring educators each year – literally the best of the best. And, yet, these questions were asked by students in one of the more impressive cohorts I have ever worked with to date. Why? Are these students opposed to creative ideas? No. Instead, they have worked in a system of education that has become too focused on checklist or quantifiable items (how many teacher are highly qualified or how many standards will be addressed by a particular lesson) and have, possibly, lost sight of sound educational practices.


I am not advocating for a return to a time when teachers taught whatever they felt like with no regard to standards. Instead, I am trying to raise a voice of caution against statutes, such as No Child Left Behind, that rely exclusively on measureable outcomes. My fear is that an overreliance on measureable outcomes leads to different forms of corruption, including what I witnessed in my class. These amazing educators in my class do not care more about standards than authentic learning experiences for all children. Rather, they are a part of a system that has become too focused on measurements and, as a result, the system is beginning to lose sight of the ultimate goal – to help a child discover the joy of learning. In addition, those within the system are personifying the values of the system – that is what I think I witnessed.


Standards, accountability, and assessment all have a vital role in public education, but an “advanced” or “proficient” score on a standardized test is not the end goal for public education.


Race to the Top, Teacher Evaluations, and Families Opting Out

In 2010, the Colorado General Assembly passed Senate Bill 10-191, now known as the Educator Effectiveness Act. The purpose of the Educator Effectiveness Act was two-fold: first, the act served to enhance Colorado’s third application to access federal Race to the Top dollars (this application was approved), and second, the act attempted to improve the teacher evaluation process.


There has been a lot written about the merits and demerits of teacher evaluations and I feel no need to revisit this lengthy debate and discussion. Instead, I would like to provide the reader with an overview of the Educator Effectiveness Act. This act made the following changes to the teacher evaluation process in Colorado:


Non-tenure teachers: historically, non-tenured teachers (in Colorado vernacular these teachers are referred to as probationary) needed to receive three years of favorable evaluations in order to receive tenure (or to become non-probationary teachers in Colorado). Under the Educator Effectiveness Act this process was changed. A non-tenured teacher now must receive three favorable evaluations in consecutive years in order to become tenured and there is no time limit for a non-tenured teacher to become tenured. In other words, an effective teacher could spend his or her entire career as a non-tenured teacher if the evaluators of this teacher made sure that every third year the individual was marked down to the point that the overall evaluation was less than favorable.


Tenured teachers: again, prior to the Educator Effectiveness Act tenured teachers could only lose the protections afforded them from tenure as a result of egregious acts. Now, if a tenured teacher in Colorado receives two consecutive unfavorable evaluations then that teacher loses his or her tenure and reverts back to non-tenure status. It should be noted that the state has been slow and purposeful in rolling out the implementation portion of the Educator Effectiveness Act, so, to date, no teacher has actually had his or her tenure status revoked. However, when this happens it stands to reason that there will be a lawsuit to follow.


Teacher evaluation criteria: finally, the Educator Effectiveness Act required that the school district created evaluation tool base 50% of a teacher’s evaluation on student growth. Each school district is able to determine acceptable evidence to document student growth, but the results from the PARCC testing are used by most Colorado school districts as a portion of growth indicators related to teachers’ evaluations.


It is under this backdrop that I wish to share a fact that I recently came across. As per Colorado state law, parents have the right to opt out of standardized testing. In fact, the state legislature has spent a fair amount of time this session debating the amount of testing Colorado public school students are subjected to and was looking at reducing these requirements (the effort, despite enjoying bipartisan support, is stalled out currently). So, the legal question that requires greater exploration is focused on parents opting out of testing. What happens if the percent of students opting out of end-of-year testing balloons to a majority of the student body?


This is what I discovered a few weeks ago while visiting an intern-I was informed that at this particular high school over 40% of students opted out of PARCC testing. I was shocked by the number so I checked with other administrators throughout the state and only found one other high school where the percent of students opting out exceeded 30% of the entire student population (this was a sample of convenience and is not scientifically defensible).


I feel we can make some gross generalizations about the parents and students that are opting out of testing – more educated parents, higher socio-economic status, etc. Again, these are generalizations, but if they are accurate generalizations then what will happen to a school’s testing results? It stands to reason that the results will decline, in general. And, here is what I find interesting about this situation –can school district administrators use PARCC testing results to quantifiably establish that a teacher in negatively impacting student growth if 40% of students are opting out of the testing?


In my opinion, the answer to the question is yes – administrators can use the PARCC data, but to rely exclusively on incomplete data (given the percent of students opting out of testing) will prove problematic. I feel there is a double standard at place in Colorado – testing is essential for accountability standards, but not all students need to be tested. Ultimately, this double standard will possibly prove the demise of the Educator Effectiveness Act and tie up limited public funds in litigation surrounding teacher evaluations.


A pre-litigation remedy would be for policymakers to determine if testing is vital for accountability reasons. If testing is deemed vital then all students should be required to test – if it is good for one student then it is good for all students. If, on the other hand, testing is not essential for accountability then do away with it. Why require school districts administer testing and, at the same time, allow certain (educated) parents opt their children out of testing?


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.



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.

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.

[1] Neal H. Hutchens, Jeffery C. Sun, Karen Miksch, Open-Records Requests and Academic Freedom, Chronicle of Higher Educ. (Jan. 10, 2014), available at 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

[2] Gene Nichol, McCrory’s Stands Strain His Ties, News & Observer (Oct. 14, 2013), available at 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

[6] See, e.g., Benjamin Herold, Danger Posed by Student-Data Breaches Prompts Action, Educ. Week (Jan. 22, 2014), available at 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

[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 (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 (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


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!