Group forms to keep Georgia high school’s graduation at church

The Cherokee Ledger-News reports that a new group has formed urging the Cherokee County School District (CCSD) to keep graduations at First Baptist Church Woodstock. The group, known as H.U.S.H. (Help Us Stop the Harassment) of Cherokee County, was formed by Cherokee High School graduate Anthony Cammarata and his friends, with a mission to bring the voices of Cherokee County taxpayers and students before the school board on Jan. 20, when it is expected to decide whether or not to continue holding graduations at the large church facility or to move them to another location.

Americans United for Separation of Church and State (AUSCS)  has threatened to sue CCSD if it continues to hold graduation ceremonies at the church, charging that  holding the ceremonies in a house of worship is unconstitutional. Through the H.U.S.H. website and its Facebook page, Cammarata said they hope to gather signatures of high school-age kids and adults to present to the school board when it is set to make its decision Jan. 20. If the board votes to keep the graduations at the church and Americans United files a lawsuit, Cammarata hopes H.U.S.H. can raise money for the district’s defense. School board attorney Tom Roach has said he would offer his legal services for free to the district. Cherokee Parents Against Moving Graduation also support keeping graduation ceremonies at the church.

After receiving a complaint from a Cherokee County resident, AUSCS sent a letter to the school district, urging them to move the graduation ceremonies. On Oct. 12, CCSD and Sequoyah High School received a letter from AUSCS noting the practice of holding graduation at the church, and saying the situation “is magnified … because a large cross is displayed above the stage where the graduates receive their diplomas.” The Cherokee County school board discussed the graduation issue at its Dec. 2 board meeting but decided to table it, as three new board members will take their seats behind the dais this month.

School officials have said the cost is minimal to hold the graduations at the church facility ($15,000, compared to the $40,000 cost to rent the Cobb Energy Centre). They also have said the site was selected because it allows graduates to invite many family members, instead of issuing tickets and limiting the number of guests per graduate.

Source: Cherokee Ledger-News, 1/12/11, By Erika Neldner

[Editor's Note: In July 2010, a Wisconsin federal district court ruled that a school district did not violate the First Amendment Establishment Clause by holding graduation and senior honors night ceremonies at a local Christian church.  A summary of that opinion, which includes a link to a summary of Connecticut federal district court's opinion, based on similar facts, that issued a preliminary injunction barring a school district from holding a graduation ceremony at a church, is available below.]

NSBA Legal Clips archives on Does 1,7,8 and 9 v. EJCSD

New Jersey School Board Considers Voluntary Drug Testing for Middle Schoolers

CBS New York reports that a school board in New Jersey [Belvidere School District] is poised to pass a policy establishing a voluntary drug testing program for middle school students.  The program would randomly test sixth, seventh and eighth graders to see if they are under the influence of drugs. School administrators said they were confident the proposal would pass.

Elementary School Principal Sandra Szabocsik said school officials want to use the testing “as a deterrent.” “We’re hoping that the students if they’re at say a party or someone’s house or just hanging out somewhere, that they’ll say ‘I don’t want to get involved in drinking or using any drug because tomorrow could be a drug testing day,’” she said.

The program is voluntary and both parents and students must consent. School officials said it was important to note that if a student tested positive, they would not be suspended or have the results sent to the police. Instead, those students would get counseling or even be referred to a rehab facility.

Drug testing is currently mandatory at Belvidere High School for students who park on campus, join clubs or participate in athletics.  “It’s been working well in the sense that parents and students understand the choices they make and are able to make better ones,” high school assistant principal Joe Flynn said.

The district said it wants to convey a similar message to its students — that the tests are not about punishment, but about getting help to those who may be experimenting with drugs.

Source:  CBS New York, 1/10/11, By Staff

[Editor's note:  A voluntary drug testing program, which by definition requires the consent of those who are tested, may alleviate some Fourth Amendment "search" concerns that usually arise with mandatory drug testing programs.

Courts that have examined mandatory drug testing programs under the federal Constitution use the standard handed down by the Supreme Court in two cases, Bd. of Educ. of Ind. Sch. Dist. No. 92 of Pottawatomie Cty. v. Earls, 122 S.Ct. 2559 (2002), and Vernonia School District 47J v. Acton, 115 S.Ct. 2386 (1995).  In Earls, the Court upheld a drug-testing policy applied to participants in non-athletic competitive extracurricular activities under the Fourth Amendment.  The majority found that, like student athletes, the participants had  a reduced expectation of privacy and the search (urinalysis) was minimally intrusive.  In its earlier decision upholding drug-testing of student athletes (Vernonia), the Court had cautioned against broad drug-testing policies in schools:  "Taking into account all the factors we have considered above - the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search - we conclude Vernonia's Policy is reasonable and hence constitutional.   We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts."

Courts examining mandatory public school drug testing programs under state statutes and constitutions have come down on both sides of the issue.  In 2010, the California Court of Appeal, Third Appellate District, upheld a trial court’s issuance of an preliminary injunction prohibiting Shasta Union High School District (SUHSD) from enforcing its mandatory random drug testing of non-athlete high school students who participate in competitive extracurricular activities.  A summary of the opinion appears at the first link below.

An article summarizing recent developments in the law on student drug testing by NSBA Legal Fellow Nancy Dinsmore is available to COSA members at the second link below.]

NSBA Legal Clips archive on California drug testing decision

Inquiry & Analysis article on developments in student drug testing

North Carolina school board contemplating dropping accreditation rather than cooperate with investigation

The Wake County School Board (WCSB) is considering dropping accreditation for the system’s high schools rather than go along with an accrediting agency’s probe, reports the News & Observer. If the board votes to forgo accreditation, it could result in lowering  the value of diplomas for public high school students in the county. WCSB’s leadership has been resisting elements of the review by the agency, AdvancED, since the investigation was announced in fall 2010. The board has asked the agency to put off its visit while members considered whether to give up accreditation rather than cooperate.

Accreditation is a seal of approval on a school system and its graduates, based on a series of educational and operational criteria that are supposed to put schools on a level playing field. Loss of accreditation can make it harder for students to earn admission to some colleges. It also could make it more difficult for students to take part in certain grant, scholarship and military programs. According to Stephen Farmer, director of admissions at UNC-Chapel Hill, “The loss of accreditation may hurt more with universities that don’t know the system as well as we do.” He added,  ”And in the longer term, the loss of accreditation could be much more problematic even with us, if the result is that families lose faith in the system and remove their sons and daughters, or that the schools themselves begin to deteriorate.”

Several WCSB members argue that some of the agency’s questions are too broad and concern matters that shouldn’t affect accreditation. “Our position is they are much broader than we believe to be within the standards for accrediting schools,” school board attorney Ann Majestic said. “They had consistently said, ‘This is a voluntary organization. If you don’t cooperate in our process, we can drop you.’”  AdvancED told the system in a frank e-mail message that Wake will have to go along with the investigation or give strong consideration to dropping its accreditation. “I am disappointed and deeply concerned regarding the continued attitude and resistance of school system leaders,” AdvancED’s president Mark Elgart wrote to Majestic. Elgart noted that the accreditation process is “voluntary and collegial by design,” and described Wake’s attitude as confrontational. “I seriously doubt the school system can benefit from the accreditation process with this attitude and approach,” Elgart said. “As such, I ask the system to seriously consider withdrawing its accreditation unless it can move forward in a more collegial and collaborative manner.”

In addition to student assignment, AdvancED has raised questions about the board’s hiring of attorney Thomas Farr as special interim counsel, the use of the conservative-leaning Civitas Institute to train board members, the cost of ending mandatory year-round schools and the cost of not building a new high school. The board maintained in September that those and other questions don’t relate to the accreditation status of particular high schools. Additionally, the board had requested the presence of lawyers to advise those being interviewed by AdvancED, which responded that it would allow attorneys only as observers.

Source: News & Observer, 1/12/11, By Thomas Goldsmith and T. Keung Hui

[Editor's Note: In August 2010, the News & Observer reported in Education Week on the complaint filed by the North Carolina chapter of the  NAACP that triggered AdvancED's decision to conduct a review of  Wake County's school system. A summary of the article is available at the first link below. In November 2010, the News & Observer reported that the U.S. Department of Education’s (ED) Office for Civil Rights (OCR) would be conducting an investigation of WCSB student assignment and discipline policies to determine if the policies are in violation of Title VI of the Civil Rights Act of 1964. The federal probe is in response to complaints from the NAACP. A summary of that article is available at the second link below.

Finally, the Washington Post recently reported on the political and social battle consuming Wake County over the school board's decision to end the school system's student assignment program that sought racial/ethnic diversity through the use of socio-economic factors. The article is available at the third link below.]

NSBA Legal Clips archives on AdvancED accreditation review

NSBA Legal Clips archives on OCR investigation of WCSB

Source: Washington Post, 1/12/11, By Stephanie McCrummen

Virginia Board of Education considering new guidelines to prevent sexual misconduct by school personnel

In the aftermath of recently reported incidents of teacher-to-student sexual abuse, the Virginia Board of Education (VBOE) is considering its first statewide guidelines for the prevention of sexual misconduct in public schools, says the Washington Post. The proposed guidelines would target behavior that has led to student sexual abuse, and would seek to limit situations that could blur the lines in a teacher-student relationship. The guidelines suggest strict limits on communication, physical contact and socializing with students.

Patricia I. Wright, state superintendent of public instruction, said Virginia school officials have seen 120 cases of sexual misconduct over the past decade, most of them discovered and reported after a teacher was arrested or prosecuted. She said the guidelines would prevent such incidents and allow school systems to discipline teachers who are crossing the line. The proposed guidelines recommend that schools prohibit teachers from communicating with individual students on Web sites such as Facebook and MySpace and via text messaging. Teachers also would be prohibited from spending time alone with students or socializing with them outside of school, from giving or accepting lavish gifts, and from engaging in romantic or sexual relationships with students of any age.

The guidelines, presented to the board in November 2010, would for the first time offer a framework for the state’s 132 school systems, which develop their own sexual misconduct policies. Wright pointed out that the state has required school systems to have such a policy but has never provided specific guidance. Charles Pyle, a spokesman for the Virginia Department of Education, conducted the research for the guidelines and described them as a follow-up to 2008 legislation requiring schools to develop such policies and report sexual violations. “It’s important to have very specific policies focused on the conduct that typifies these cases,” Pyle said.

“Division-level policies are critical in the prevention of misconduct,” according to documents supporting the guidelines. “Well-designed local policies – with specific consequences for willful violations – also can play a role in preventing individuals who have been dismissed – but not prosecuted – for misconduct from moving to a new school division and engaging in further misconduct with students.” Wright said she hopes the guidelines will offer local schools a foundation for developing their own policies.

Source: Washington Post, 1/9/11, By Josh White

[Editor's Note: As the news item below points out, while policies are important, they are only as effective as their enforcement. In December 2010, Education Week reported that the federal Government Accountability Office (GAO) had issued a study finding that schools in some cases have hired individuals with histories of sexual misconduct as teachers, coaches, janitors, and administrators, partly because of lax systems of background checks. According to the article, GAO documented 15 cases in which individuals guilty of past misconduct were hired or retained by schools. In 11 of those cases, the individuals in question had previously targeted children; and in six of them, the offenders used their new positions to abuse more children. A summary of the article is available below.]

NSBA Legal Clips archives on GAO report

Wyoming teachers’ union attacks proposed legislation to eliminate teacher tenure

According to a report from the Casper Star-Tribune, Wyoming Education Association (WEA) officials are decrying proposed legislation that would eliminate “teacher tenure,” saying it would remove safeguards that keep teachers from being fired arbitrarily. Senate File (SF) 52, titled the “teacher tenure” bill, removes “continuing-contract” status from the state’s teacher employment law. State legislator Hank Coe, who is one of SF52′s sponsors, says the bill evens the field between new and experienced teachers and treats all teachers like at-will employees. The bill’s intent, Coe explains, is to make the teacher evaluation process stronger. Coe believes mandating evaluations without removing continuing-contract status would continue to protect bad teachers.

Teachers currently obtain continuing-contract status after serving three years in a particular school district, at which time their contracts are automatically renewed annually unless they resign, retire or are lawfully dismissed.

Portions of SF52 appear to grant more protection to teachers. The bill extends the right to a hearing, now only available to continuing-contract teachers, to all teachers who have taught for at least 90 days in a district. However, another provision in the bill states that a hearing or proof of cause for terminating a teacher is not required, causing WEA’s concern. “Our concern is whether or not it does offer a hearing, it makes it pretty clear the district doesn’t have to give reason for dismissal,” said WEA’s president, Kathryn Valido.

Although the bill would expand the pool eligible for hearings, Coe doesn’t think the number of hearings would increase because “the umbrella of protection” with continuing-contract status is gone.  He said school district superintendents told him the process can cost up to $20,000 to fire a teacher. Valido, on the other hand, asserts that more than 90% of termination notifications never make it to the hearing process. She said there has not been a single case in the past five years tin which a hearing officer supported a teacher in a termination recommendation. “That process is not protecting bad teachers,” Valido said. “It’s a really clear, very simple process.”

Valido contends the problem of ineffective teachers can be solved in other ways, such as improving annual evaluations already required by law. The state Department of Education has directed school districts to review and revise their evaluations to meet a variety of criteria, including measuring performance, documenting growth and linking student data to teachers.

Lawmakers expect the bill to change during the legislative session, which begins Jan. 11. House Education Committee Chairman Matt Teeters said school boards should be trusted with determining whom they hire and whom they fire.

Source:  Casper Star-Tribune, 1/7/11, By Jackie Borchardt and Jeremy Pelzer

[Editor's Note: In May 2010, the Los Angeles Times reported that Colorado’s recently-enacted statute tying teacher evaluations to student progress could help build momentum for a national movement that seeks to overhaul how instructors’ tenure and pay is earned. The article is available at the first link below.

In April 2010, Business Week reported that Florida's governor vetoed legislation aimed at eliminating tenure for teachers and instituting merit pay system. A summary of the article is available at the second link below.]

NSBA Legal Clips archives on Colorado teacher evaluation law

NSBA School Law Issues pages on vetoed Florida legislation

Washington school district not liable under Title IX or section 1983 for peer sexual harassment of student with autism

J.B. v. Mead Sch. Dist. No. 354, No. 08-223 (Dec. 10, 2010)

Abstract: A federal district court in Washington has ruled that a student alleging peer sexual harassment has failed to state a valid Title IX claim or a § 1983 claim based on deprivation of his substantive due process rights. The court concluded that the student had failed to allege sufficient facts to show that school officials had actual knowledge of the sexual abuse that occurred. Regarding the due process claim, it concluded that the student had failed to allege facts sufficient to overcome the general rule that the state (school district) is not required to “protect the life, liberty, and property of its citizens [students] against invasion by private actors.” Specifically, it found that neither the “special relationship” nor the “state-created danger” exception applied.

Facts/Issues:J.B., who suffers from autism, attended Mead High School (MHS).  He was subjected to ongoing sexual abuse by two other special education students during the 2005-06 school year. J.B. did not disclose anything about the other students’ conduct except that he told his case manager that one of the students had told J.B. to hug the principal and to touch another student’s backpack.  Neither J.B. nor his parents complained of the two students’ behavior until another student reported an incident. At that point, an investigation was initiated.  J.B. disclosed the year long sexual and physical abuse by the two students. After learning of the abuse, MHS officials took a number of steps to prevent any future occurrences. J.B. suffered no other sexual or physical abuse from that point until he graduated in 2008. After J.B.’s graduation, his parents filed suit against Mead School District No. 354 (MSD354) in state court alleging a number of negligence-based state claims and two federal claims, one under Title IX  and the other under § 1983 alleging violations of his substantive due process rights. MSD354 removed the suit to federal district court. MSD354 then sought summary judgment on the two federal claims.

Ruling/Rationale: The district court granted MSD354′s motion for summary judgment on the Title IX and substantive due process claims. The court analyzed the Title IX claim under the three-part test for student-to-student sexual harassment provided Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999). The test requires a plaintiff to show: (1) he suffered sexual harassment that was so severe,pervasive, and objectively offensive that it could be said to deprive him of access to the educational opportunities or benefits provided by the school; (2) the funding recipient had actual knowledge of the sexual harassment; and (3) the funding recipient was deliberately indifferent to the harassment.

Although the district court found that J.B. had satisfied the first element of a student-to-student Title IX sexual harassment claim, it concluded that he had failed to allege facts sufficient to establish the second element, actual knowledge. The court, therefore, did not consider the third element.  It found, “At most,administrators knew that J.B. had kissed [one of the harassers], hugged the principal,and touched another student’s backpack, which does not amount to sexual abuse or harassment.” Once MSD354 learned of the abuse, it tool immediate corrective action, noted the court. Moreover, there was no evidence that the harassing students’ disciplinary history put MSD354 on notice of a significant risk that they might sexually abuse another student.  However, the court did discuss at some length the fact that a teacher had observed J.B. and one of the harassing students in what could have been perceived as a sexually suggestive position. It found that even though J.B. may have perceived the incident as sexual in natural, the teacher “unequivocally testified that he did not perceive anything sexually suggestive.”  In addition, the court found that even if the teacher had perceived the incident in the same manner as J.B., it would not have satisfied Title IX’s actual notice standard because there was no evidence that the teacher would have thought the act was anything but consensual.

Lastly, the district court disposed of the § 1983 substantive due process claim because the facts as presented by J.B. did not satisfy either exception, i.e., special relationship or state-created danger, to the general rule that a state entity is not liable for the acts of private individuals.

J.B. v. Mead Sch. Dist. No. 354, No. 08-223 (Dec. 10, 2010)

[Editor's Note: Neither the parties nor the court itself made reference to the U.S. Department of Education's (ED) Office for Civil Rights (OCR) October 2010 guidance letter that takes an enforcement position further broadening the standard set by the Davis ruling by advising that school officials would be responsible if they “reasonably should have known” about a situation. The court's analysis of the Title IX claim stays faithful to the well-established standard laid out in Davis.

In December 2010, School Board News Today reported that NSBA General Counsel Francisco Negrón, Jr. asked OCR to clarify or reconsider its broad enforcement position, taken in the October 2010 guidance, with respect to student bullying and harassment. A summary of the article, with links to Negrón's letter to OCR and ED's "Dear Colleague" letter containing the OCR guidance, is available below.]

Legal Clips archive on NSBA response to ED guidance

Federal Fifth Circuit Court of Appeals grants full rehearing in Texas candy cane distribution case

The U.S. Court of Appeals for the Fifth Circuit has granted two Texas elementary school principals en banc (full panel) review in a case involving the question of whether the principals violated the U.S. Constitution by barring students from swapping religious gifts, including Christian-themed pens shaped like candy canes, reports Courthouse News Service. The Fifth Circuit will reconsider whether elementary school students were properly found to have First Amendment rights. In November, a Fifth Circuit three-judge panel refused to dismiss the religious discrimination claims against principals Lynn Swanson and Jackie Bomchill on the basis of qualified immunity, rejecting their argument that the First Amendment does not apply to elementary school students.

In an effort to streamline the appeals, the federal district court judge separated the claims against the school district from those against the principals. The panel found the bifurcation “commendable in concept” but “perverse in execution,” because the lower court had ruled for the school district but not the principals. Though the November ruling rejected the principals’ motion to dismiss, a different Fifth Circuit panel upheld the judge’s ruling for the school district in December 2009.  But the panel noted in November that its ruling was limited and “does not preclude the district court from granting qualified immunity in this case should the facts demonstrate that this is other than non-disruptive student-to-student speech.”

Source: Courthouse News Service, 1/3/11, By Staff

[Editor's Note: The Fifth Circuit order granting the motion for rehearing en banc (all active Fifth Circuit judges hearing the case) is available at the first link below.

A summary of the Fifth Circuit panel's November 2010 decision, in which it affirmed the district court’s denial of qualified immunity to the principals, is available at the second link below.

The Fifth Circuit opinion ruling that  the school district’s current policy imposing time, place and manner restrictions on the distribution of materials in school is constitutional is available at the third link below.]

Morgan v. Swanson en banc order

Morgan v. Swanson November 2010 opinion

Morgan v. Plano Indep. Sch. Dist.

School district’s administration of payroll deduction system for employee contributions to teachers’ union PAC does not violate the Michigan Campaign Finance Act

Michigan Educ. Ass’n v. Secretary of State, No. 137451 (Mich. Dec. 29, 2010)

Abstract:The Michigan Supreme Court has ruled that a school district, pursuant to the collective bargaining agreement (CBA) with its local teachers’ union, is permitted under the Michigan Campaign Finance Act (MCFA) to administer a payroll deduction system for purposes of remitting employee contributions to the state teachers’ union’s political action committee. It concluded that the use of the payroll deduction system to allow union employees to make political contributions did not run afoul of MCFA’s prohibition on a public body from using public resources to do three things: (1) make an expenditure, (2) make a contribution, and (3) provide volunteer personal services that are excluded from the definition of contribution under section 4(3)(a) of the MCFA (uncompensated volunteer services).

Facts/Issues: Michigan Education Association (MEA) is a labor organization that represents employees of public schools, colleges and universities in Michigan. Its political action committee (MEA-PAC) is a separate segregated fund under § 55 of the MCFA, which is funded in part by MEA member payroll deductions. The MEA (or its affiliates) has entered into collective bargaining agreements with various public school districts throughout the state that require the school district employer to administer a payroll deduction plan for contributions to the MEA-PAC. One of those school districts requested MEA to obtain a declaratory ruling from the  Michigan Secretary of State (MSS) regarding the validity of the payroll deduction system.

The MSS ruled that school districts “could not make and transmit payroll deductions requested by MEA members to the MEA-PAC because § 57 of the MCFA prohibits a public body from making expenditures or collecting contributions for a political action committee.” The MSS relied on previous rulings from the Michigan Department of State and Attorney General that concluded that a public body is prohibited from collecting and remitting contributions to a committee through its administration of a payroll deduction plan. MEA appealed MSS’s ruling in state court. The trial court held that a public body may administer payroll deductions as long as all the costs of making deductions are paid in advance. However, the Michigan Court of Appeals, reversed the trial court’s opinion, holding that regardless of advance payment for the associated costs, a public school’s administration of a payroll deduction system is still an “expenditure” under the MCFA and thus prohibited.

Ruling/Rationale: The Michigan Supreme Court reversed the decision of the Court of Appeals. It concluded: ”A public school may administer payroll deductions for its employees who remit funds to the MEA-PAC, because MCL 169.257(1) only prohibits a public body from using public resources to do three things: (1) make an expenditure, (2) make a contribution, and (3) provide volunteer personal services that are excluded from the definition of ‘contribution’ under MCL 169.204(3)(a).”

The supreme court found that the payroll deduction system at issue was not an “expenditure” within the meaning of MCFA ”because the cost of administration is an ‘expenditure for the establishment, administration, or solicitation of contributions to a separate segregated fund or independent committee,’ which is an enumerated exception to the statutory definition of expenditure.” It also determined that administration of the system did not constitute a contribution under MCFA ”because there is no net conveyance of anything of monetary value made for the purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question.” Lastly, administration of  the system did not “provide volunteer personal services that are excluded from the definition of contribution under [MCL 169.204(3)(a)] because the MEA-PAC fully anticipates prepayment for any administration costs.”

Michigan Educ. Ass’n v. Secretary of State, No. 137451 (Mich. Dec. 29, 2010)

[Editor's Note: The dissenting justice would have upheld the Court of Appeals, believing that the school district’s payroll deduction plan is prohibited under §57 of the MCFA. Noting that the statute prohibits a public body from using public resources to make any “contribution or expenditure,” the dissenting justice opined that a school district’s administration of a payroll deduction plan that remits funds to a partisan political action committee (a) constitutes a “contribution” because public resources are being used to advance the political objectives of the committee and (b) constitutes an “expenditure” because public “services” and “facilities in assistance of” these same political objectives are being provided. The evident purpose of the statute, the justice noted, “is to mandate the separation of the government from politics in order to maintain governmental neutrality in elections, preserve fair democratic processes, and prevent taxpayer funds from being used to subsidize partisan political activities.”

In May 2010, an Associated Press report carried by  KVII-TV Amarillo stated that Texas Attorney General Greg Abbott had issued an opinion stating that school districts have no authority to help teachers and educators direct donations to political groups, including those run by employee unions. A summary of the article, along with a link to a summary of the U.S. Supreme Court’s decision in Ysursa v. Pocatello Educ. Ass’n., 129 S. Ct. 1093 (2009), which held that a state’s “ban on political payroll deductions” is “justified by the State’s interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics,” is available below.

NSBA Legal Clips archive Texas Attorney General opinion

Secretary Duncan sees potential common ground in ESEA/NCLB reauthorization

In an opinion piece published in the Washington Post, Secretary of Education Arne Duncan laid out broad issues upon which Democrats and Republicans can agree as the new Congress tackles reauthorization of the Elementary and Secondary Education Act (ESEA) in its most recent version, No Child Left Behind (NCLB).  Noting that “few areas are more suited by bipartisan action than education reform,” Duncan listed four key areas of potential collaboration.

First, Duncan cited wide dissatisfaction with labeling schools as failing even when students are making broad gains.  Rather than an arbitrary level of achievement, the Secretary articulated a common goal of measuring the actual impact of schools and teachers on student learning.  Second, federal one-size-fits-all mandates like tutoring or transfers may not work as well as locally-developed programs, Duncan stated.  Third, both parties appreciate the transparency required by NCLB, and disaggregating data to show achievement gaps based on race, disability, English proficiency and income, but are leery of the tendency to teach to the test.  Fourth, Duncan stated that “almost no one believes the teacher quality provisions of NCLB are helping elevate the teaching profession.”  He believes that education stakeholders would like to see teacher accountability measures based on multiple inputs, including student growth, principal observation, and peer review.

The Secretary touted the work of the 44-state consortium working on “a new test that helps inform and improve instruction by accurately measuring what children know across the full range of college and career-ready standards, and measures other skills, such as critical-thinking abilities.” He also cited efforts to raise college-and-career-readiness standards.

The secretary concluded with reference to expansive education reforms being initiated across the country spurred, he said, by the administration’s incentive programs such as Race To The Top.  He suggested that the current NCLB law should be revised to let those local reforms takes root:  ”While we don’t agree on everything, our core goals are shared – and we all want to fix NCLB to better support reform at the state and local level.”

Source:  Washington Post, 1/3/11, By Arne Duncan

[Editor's note:  Michael Resnick, NSBA Associate Executive Director, Advocacy and Issues Management, noted that Duncan's comments suggest support for local level decision-making. NSBA's Advocacy team communicated to the secretary and his staff key points of importance to local school boards as the Department developed its "Blueprint for Reform," released in March 2010, and continues to advocate for flexibility at the local level.   "The devil, of course, will be in the details," explained Resnick, "as we continue to work with the Secretary and key Congressional leaders to move the reauthorization of ESEA forward." A link to the U.S. Department of Education's (ED) page on its "Blueprint for Reform" of ESEA appears below.  Click on the second link for issue briefs and other resources for school boards from the NSBA Advocacy team on ESEA reauthorization and ED's "Blueprint for Reform."]

ED pages on Blueprint for Reform

NSBA Advocacy pages on ESEA Reauthorization

New Jersey Supreme Court to hear arguments on governor’s cuts of state school funding

The Star-Ledger reports that the New Jersey Supreme Court will hear arguments in early January 2011 in a suit over whether Gov. Chris Christie’s cuts in education spending are unconstitutional.  The court is revisiting one of its most progressive and far-reaching decisions, Abbott vs. Burke (1985), which has diverted billions of dollars toward education in the state’s poorest communities, at a time when the governor is trying to rein in a court he says has overstepped its bounds.

At the heart of this court battle is the state’s school funding formula and Christie’s first budget.  In 2009, the New Jersey Supreme Court allowed the state to deviate from the original Abbott decision with a law that allocates education dollars based on enrollment of needy students, rather than a blanket classification of a district as poor or wealthy. But there was a caveat: “Our finding of constitutionality is premised on the expectation that the state will continue to provide school funding aid during this and the next two years at the levels required by (the) formula each year,” the court said.

Instead, Christie cut school funding by $820 million while closing a nearly $11 billion budget gap. In response, the Education Law Center, which advocates for the state’s poorest districts, filed a legal challenge, saying schools are not receiving “the funding necessary to provide a constitutional education.” The Christie administration said in court filings that the economic crisis forced the state to reduce education spending, adding that cuts were equitable. “The reductions do not give rise to any constitutional deficiencies in educational funding and, hence, no judicial involvement is necessary or appropriate,” the state’s brief said.

The court’s decision could have enormous implications for the state’s upcoming budget.  Paul Tractenberg, founder of the Education Law Center, sees three possible outcomes. First, the court could allow the state’s cuts, handing a victory to Christie. Second, the court could grant the state a “time out,” meaning a temporary reprieve from fully funding schools during the economic crisis. The third option would force the state to fully fund the formula. The court may even require it to pay schools the $820 million already cut, which would be devastating to Christie, who has tried to pare state spending and avoid tax increases.

Source: Star-Ledger, 1/3/11, By Staff

[Editor's Note:  A coalition of 63 Kansas school districts filed a similar suit in the fall of 2010, reported the Kansas City Star. They allege that cuts to education spending violate the state constitution and seek to force the state legislature to reverse budget cuts made in response to the economic downturn. The group contends that lawmakers cut more than $303 million from schools since the downturn began — even though lawmakers had previously agreed to increase funding.  A summary of the article appears at the first link below.

For his part, Gov. Christie made much news in 2010, culminating in an appearance on CBS's 60 Minutes in December.  Christie was the central figure in the show's segment on drastic measures being taken by states to reign in costs.  A report on the appearance by New Jersey Newsroom.com appears at the second link below.

In October 2010, the Star-Ledger reported on the acting Education Commissioner's testimony before a joint legislative committee that the state’s school takeover statute does not authorize gubernatorial or mayoral participation in efforts to reform a district under state control.  In the frenzy of the original announcement that Newark’s troubled schools would receive $100 million donation from Facebook CEO Mark Zuckerberg, officials said Governor Christie would name Newark’ Mayor Booker his “special assistant” for education in that school district. The governor’s office then backpedaled on the details of Booker’s duties.  A summary of the article is available at the third link below.

Christie signed a 2% tax cap bill into law during the summer of 2010, part of a fiscal "toolkit" of  nearly three dozen bills designed to help local entities cut costs while containing property tax increases.  In the spring he issued an executive order directing the state to withhold state aid to local school districts for the remainder of fiscal year (FY) 2010 in an amount equal to the anticipated surplus funds for each district as determined by the Commissioner of the Department of Education (Commissioner).  A summary of the reporting on these actions appears at the fourth link below.

In March 2010, the Associated Press reported in the Star-Ledger that New Jersey Gov. Christie said he would offer more state aid to school districts whose teachers agreed to a wage freeze for the 2011 fiscal year. A summary of the article is available at the fifth link below.]

NSBA Legal Clips archive on Kansas school funding suit

Source:  newjerseynewsroom.com, 12/20/10, By Bob Holt

NSBA Legal Clips archive on takeover of Newark schools

NSBA Legal Clips archive on Gov. Christie’s “toolkit”

NSBA School Law Issues pages on New Jersey school funding cuts