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Louisiana school boards joining suit challenging the state’s per pupil funding formula

According to Natchez Democrat, at least 19 local school boards in Louisiana have joined an education funding lawsuit against the state.  The suit comes in the wake of a Louisiana Supreme Court decision striking down the state’s funding formula, known as the Minimum Foundation Program (MFP), as well as the manner in which Louisiana’s expanded voucher program is funded.  The school boards are seeking a 2.75% “growth factor” in the suit, which had been included in previous years’ MFPs, that would provide an estimated $200 million in state funding.

The Louisiana School Boards Association (LSBA) is encouraging all of its 69 member districts to sign on to the suit.

Source: Natchez Democrat, 12/12/13, By Lindsey Shelton

[Editor's Note: In its letter to members calling on them to join the suit, LSBA notes that there are no costs associated with joining the suit (the attorneys are working on a contingency basis) and that LSBA will not be a plaintiff in the suit due to standing issues but will likely file an amicus brief in support of the school boards.

In May 2013, Legal Clips summarized the decision by the Louisiana Supreme Court in Louisiana Federation of Teachers v. State holding that the state’s method of funding its statewide private school voucher program violates the state constitution and voiding the MFP.]

North Carolina School Boards Association sues state over private school voucher program

The Bladen Journal reports that the North Carolina School Boards Association (NCSBA) has filed a lawsuit challenging the validity of the state’s newly enacted private school voucher law under the state constitution.  The voucher program, which goes in effect in the 2014-15 school year, allows private schools to receive up to $4,200 in public funding for each eligible student that they enroll.  Although the law initially earmarks $10 million for the program, NCSBA’s suit alleges that the public funding required will rise to $50 million in future budget cycles.  In addition to NCSBA, four individual taxpayers joined the suit as plaintiffs, three of whom have children attending public schools in North Carolina.

“This challenge raises important questions about the use of public funds and our commitment to North Carolina’s students,” said Shearra Miller, NCSBA’s president.  “By diverting funding from the public schools, vouchers have the potential to significantly damage individual school systems, particularly in smaller districts.”

Miller also pointed out that the voucher program fails to ensure that students who utilize public funds to attend private school will receive a sound basic education and be protected from discrimination.

Source: Bladen Journal, 12/17/13, By Staff

[Editor's Note: NCSBA's legal complaint seeks declaratory and injunctive relief.  It asks the court to declare that the voucher program violates several provisions of the state constitution and to permanently enjoin the state from implementing the program.  The complaint cites six provisions in the North Carolina Constitution as the bases for striking down the law. 

1) Article V, Section 2, which restricts use of the state's taxation power to public purposes.

2) Article I, Section 15, which imposes a duty on the state to provide public education.

3) Article I, Section 15, which guarantees the right to a sound basic education.

4) Article I, Section 19, which prohibits discrimination the basis of race, color, religion, or national origin in publicly funded programs.

5) Article IX, Section 6, which requires that public funds placed in the state school fund be used exclusively for public schools.

6) Article IX, Section 2, which requires that "equal opportunities" be provided to all students.

In addition to NCSBA's suit challenging North Carolina's voucher program, the North Carolina Association of Educators (NCAE) and the North Carolina Justice Center (NCJC) also filed a suit challenging the law.  According to a December 11 report in the News & Observer by Jane Stancill, the NCAE/NCJC suit charges that the voucher program is a broad assault on the state’s public schools and violates fundamental provisions of the state constitution.]

Study finds racial disparity in suspension of Virginia students, but effective programs as well

The Washington Post reports that a joint study from the University of Virginia’s Curry School of Education and the Legal Aid Justice Center finds male African-American students in Virginia are twice as likely to be suspended from public schools as white male students.  In other findings, the report said female African-American students are more than twice as likely to be suspended as their white counterparts.  The study also points out that students are often disciplined for minor offenses such as talking loudly and disrupting class, and that African-American  students are 67% more likely than white students to be suspended for offenses involving disruption or disrespect.  Other research shows that racial gaps in discipline persist even after experts control for poverty and other factors, the report said.

The use of suspension as a disciplinary tool concerns experts because its use has been linked to academic failure, dropping out and juvenile justice involvement.  “We know the more you suspend a student, the more likely they are to drop out and end up in the criminal justice system,” said Dewey Cornell, one of the authors of the study.

The study pointed to promising findings as well.  Researchers found that suspension rates are lower in secondary schools that use threat assessment guidelines, which provide procedures for examining the intent and risks associated with student misbehavior.  Even more, racial gaps are narrower for long-term suspensions in schools that used such guidelines, according to the report.  “The zero-tolerance mind-set has taught us that the only way to make schools safe is to remove students who misbehave,” said Angela Ciolfi, legal director of JustChildren, a child advocacy program of the Legal Aid Justice Center.  But the report’s findings, she said, show that “school safety and keeping young people in school go hand in hand.”

Researcher Daniel J. Losen, who has studied racial disparities and suspension on a national level, said the report adds to a growing conversation about alternative discipline approaches.  Losen said the report found 65% of short-term suspensions were for non-violent acts, such as defiance, disruption and cellphone use.  “What this report suggests to me,” he said, “is that Virginia could do a lot more by extending this problem-solving approach to all the minor misconduct.”

Source: Washington Post, 12/18/13, By Donna St. George

[Editor's Note: The study, titled "Prevention v. Punishment: Threat Assessment, School Suspensions, and Racial Disparities," makes four recommendations:

1. The Virginia General Assembly should ensure that sufficient funding is available to provide school employees and law enforcement employees working in schools training in threat assessment, as well as in other interventions that can help reduce suspension rates and improve student behavior.
2. The Virginia Departments of Education and Criminal Justice Services should draft a model memorandum of understanding between schools and law enforcement to facilitate the implementation of threat assessment procedures and related efforts to maintain school safety.
3. The Virginia Department of Juvenile Justice should collect data on school-based arrests, referrals to law enforcement by schools or school resource officers, and delinquency petitions or criminal complaints based on conduct occurring at school.
4. The General Assembly should require that schools ensure that students who are suspended or expelled continue to make academic progress during periods of disciplinary removal.

In December 2013, Legal Clips summarized an article in the Lubbock Avalanche-Journal reporting that investigators from the U.S. Department of Education’s Office for Civil Rights were conducting a Title VI compliance review of Lubbock Independent School District (LISD) to determine if disciplinary action is meted out to African-American and white students in an equal manner.  The review was not conducted as the result of a complaint, but rather as part of a nationwide performance review.] 

U.S. Dep’t of ED seeks additional comments on categories for civil rights data collections *****Correction*****

The U.S. Department of Education (ED) has issued a second notice in the Federal Register requesting comments from the public on its revised proposals to the Office of Management and Budget (OMB) for approval to expand the categories of student, staff, and operational information sought for its civil rights data collections beginning in the 2013-14 and 2015-16 school years.  Generally, these categories include school and district characteristics, discipline, harassment and bullying, early childhood education, pathways to college and career, school finance and teachers and related funding.

In response to its first notice issued in Summer 2013 of its proposal to expand its data collection, ED received almost 300 comments from various members of the public, including school administrators, educators, state educational agencies, local school districts, non-profit and professional organizations, education associations, advocacy groups, parents, and other private citizens.

As identified in its response to these comments (identified as “Response to 60-Day Public Comment” at this link), the comments from parents, private citizens, advocacy groups, and non-profit organizations typically were favorable of the proposed categories to be added to the existing civil rights data collection, including suggestions for still additional categories.  However, the comments from school-based personnel, school districts, education-related entities, and education associations were not typically favorable of the expansion areas.  These comments identified the increased scope of information to be requested by these new categories, the subsequent additional burden that would be placed on school staff in locating and reporting the responsive information to ED, and the areas in which ED’s Office for Civil Rights might be overstepping its legal authority in regards to asking for data that is not civil rights-related.

Consequently, ED has identified categories of data proposed in the first notice that it is now seeking OMB’s approval through its second notice to make responses mandatory for the 2013-14 school year, such as distance education courses, costs of kindergarten and preschool, ungraded schools, credit recovery and dual enrollment/dual credit programs, student absenteeism, and the presence of law enforcement officers on school campuses.

ED also identified categories of data for which it is now seeking OMB’s approval to make responses mandatory for the 2015-16 school year, such as disciplinary transfers of students, use of corporal punishment, school absenteeism due to discipline, crimes committed on campus, harassment and/or bullying of students based on sexual orientation and religion, numbers and salaries of teaching staff, teaching aides, support staff, and school administrators.

Comments to ED’s second notice are due by January 3, 2014.

[Editor's Note: The original Legal Clips story contained an inadvertent mistake, erroneously stating that ED was seeking OMB's approval to make responses for the 2013-14 school year optional.  In fact, ED's proposal is to make responses mandatory. Legal Clips regrets the error and any confusion it may have caused.  

The National School Boards Association (NSBA) was among those organizations that submitted comments to ED's first notice, criticizing ED's proposed expansion of the data collection scheme. NSBA's comments "identified several areas of concern with regards to certain proposed new data groups and data categories, as well as proposed revisions to existing data groups and data categories."  The comments express NSBA's concerns about: "the specific information regarding the types of data being proposed to be collected, the burden and expense to already financially-strapped public school districts of such proposed collections, the confusion certain requests will generate because of the differences between OCR’s characterization of certain ideas and actions and the actual definitions and obligations, responsibilities, and rights of public school districts as defined by state law, and the areas of proposed data collection for which NSBA believes there is questionable legal jurisdiction to support, or be the basis for, OCR’s inquiries."]

Two New York districts file OCR complaints challenging state’s system of funding schools

The Associated Press (AP) reports in the New Jersey Herald that superintendents in two upstate New York school districts, Schenectady and Middletown, have filed complaints with the U.S. Department of Education’s Office for Civil Rights claiming that the state’s public school funding scheme discriminates against minority students.  The complaints come as a lawsuit filed by a coalition of small city school districts challenging the funding system moves toward trial next year.

According to the complaint, the poorer districts are more likely than wealthier to get less than they’re entitled to under the state’s school aid formula, despite having weaker property tax bases.  The result is larger class sizes, pressure to reduce programs, poorer performance and difficulty attracting some of the best teachers. “There’s clear data on states that have a distribution that’s more equitable have a tendency to have better student performance,” said Middletown Superintendent Kenneth Eastwood.  His complaint also says that New Jersey, with a more equitable formula than New York, ranks 10th in the nation for graduating black males while New York ranks 50th.

Critics say the inequity stems from changes Gov. Andrew Cuomo and the Legislature made in recent years to 2007 legislation that was intended to eliminate the disparities after the state’s top court found in favor of the Campaign for Fiscal Equity, which initially filed a lawsuit against the funding system in 1993.  Wendy Lecker, a lawyer with the Education Law Center in charge of the CFE program, said lawmakers “wanted to balance the state budget on the backs of school children” and shifted billions of dollars from education while approving a cap in property tax growth that has affected “the poorer districts much more heavily than affluent districts.”

The state Board of Regents said last year that the changes in aid programs had resulted in a shortfall of more than $7 billion from the funding regime created in 2007.

Cuomo and state lawmakers have defended the way they allocate education funding.  “That’s called democracy, and that’s what the Legislature debates every year and what is the fair amount of funding for each district,” Cuomo said.  ”And should a rich district get no money because they’re a richer district, or should they get more money because they put in more money?  Should the needier districts get all the money because they’re needier even though they put in less?  And that is the annual debate of the state budget and the education funding formula.”

Source: New Jersey Herald, 12/13/13, By George m. Walsh (AP)

[Editor's Note: In June 2012, Legal Clips summarized an (AP) story in The Wall Street Journal reporting that, in a 6-1 decision, the New York State Court of Appeals had refused to dismiss a lawsuit brought by 32 parents of students in 11 small city school districts challenging New York’s system for funding public education, saying their children are getting shortchanged.]

North Carolina teachers’ union files suit to regain tenure protections

On the heels of filing a suit challenging North Carolina’s private school voucher law, the North Carolina Association of Educators (NCAE), joined by six individual teachers, has filed suit against the state over its elimination of “career status” protections afforded veteran teachers, says WRAL.com. Career status, commonly referred to as tenure, gave teachers extra due process rights, including the right to a hearing prior to being disciplined or fired.

“Career status repeal is part of a full frontal assault by the legislative majority on public education in North Carolina,” NCAE President Rodney Ellis said. “It’s part of a full frontal assault on the teachers, the children, the families and the future of our state.  No wonder teachers are leaving our state in droves.”

Senate President Pro Tem Phil Berger, who initially crafted the tenure elimination proposal, and House Speaker Thom Tillis quickly labeled the lawsuit “frivolous,” adding that teachers will now be rewarded for job performance instead of having a tenure system that “fosters mediocrity and discourages excellence.”

NCAE attorney Ann McColl said “fundamental constitutional principles are being compromised” in the elimination of career status.  She noted that neither it nor the voucher proposal were able to pass the General Assembly as stand alone bills, so they were tucked into the budget, which was hammered out behind closed doors with no public input and little debate.

Source: WRAL.com, 12/17/13, By Matthew Burns

[Editor's Note: In August 2013, Legal Clips summarized an article in The Wall Street Journal reporting that North Carolina Gov. Pat McCrory signed a budget bill that eliminates teacher tenure and—in a rare move—gets rid of the automatic pay increase teachers receive for earning a master’s degree.  The legislation targets a compensation mechanism that is common in the U.S., where teachers receive automatic pay increases for years of service and advanced degrees.] 

Mississippi district sued for alleged bullying of LGBT students by staff and students

According to gulflive.com, the Southern Poverty Law Center (SPLC) has filed suit in federal court against the Moss Point School District (MPSD) alleging that lesbian, gay, bisexual and transgender (LGBT) students, as well those perceived as LGBT, are being subject to pervasive bullying and harassment in the district’s schools.  The suit claims that the harassment comes from administrators, teachers and students.

SPLC is calling on MPSD  to implement new policies and procedures to help protect the LGBT student population and to offer training to students and staff about bullying and LGBT students’ rights.

Source: gulflive.com, 12/17/13, By April M. Havens

[Editor's Note: SPLC's legal complaint contains two gender-based discrimination counts: Title IX and Fourteenth Amendment equal protection.

In November 2010, Legal Clips summarized an Associated Press article in Education Week reporting on an SPLC documentary focusing on anti-gay bullying, to be aired at a summit sponsored by the Mississippi Safe Schools Coalition.  Lecia Brooks, the law center’s director of outreach, said Mississippi is a good place to show the film because the state has been in the spotlight over the past year for gay-related issues at schools.] 

Two Montana districts challenged because school choirs participate in community Christmas concerts

The Freedom from Religion Foundation (FFRF) and the American Civil Liberties Union of Montana (ACLU-MT) sent letters to two school districts demanding they cancel the participation of school choirs in a traditional Christmas concert, says The Daily Inter Lake, billed as the “Peace on Earth Community Christmas Celebration.”  The school choirs are listed among more than 10 musical performances at the two-day event at the Church of Jesus Christ of Latter-day Saints in Kalispell, Montana.  It is not school-sponsored.

The ACLU-MT and FFRF contend that the school choirs’ participation in the religious event gives the appearance that the school districts are endorsing or advancing a specific religious message or denomination.  The school districts insist that allowing students to participate in traditional Christmas concerts held by community groups does not violate anyone’s rights.

According to FFRF staff attorney Andrew Seidel, “The main concern to us is to have public schools in this case taking their students essentially to a worship service.  It’s factually no different then taking them to church and having them sing in a church choir.”

Kalispell Public Schools Superintendent Darlene Schottle, on the other hand, believes participation neither endorses nor promotes a religion or religious message.  She said it is simply an opportunity for students to perform for the community at a public venue and does not equate to sponsorship.

Nonetheless, Seidel insists it is impermissible for public school students to perform or rehearse in a church. “There is no way to get away from the sheer religiosity of the place,” Seidel said.

Schottle said complaints of this type are a regular occurrence as the holiday season nears.  Schottle said when students perform for a group such as Rotary, or at a nursing home, the school is not endorsing the group’s ideology or a business’s practices simply because of an event theme or venue.  “If any group, whether faith-based or not, wants our students to perform and it fits into our schedule, we quite frequently allow students to perform,” Schottle said.

The two side also differ on whether students are participating in such events voluntarily or are coerced.  Schottle said the district believes the opportunity to “opt out” is sufficient.  Niki Zupanic, ACLU-MT’s Public Policy Director, believes students are put in a difficult position when asked to make such a decision. “It creates personal conflict.  Students want to fit in and they may be labeled as a troublemaker.”

Source: The Daily Inter Lake, 12/6/13, By Hilary Matheson

[Editor's Note: COSA's Holiday Bundle, which is available to COSA members, provides a number of resources on what schools can and cannot do during the holiday season.

In February 2011, Legal Clips summarized an article in the San Francisco Chronicle reporting that faced with a lawsuit over its decision to prohibit an elementary school student from performing a Christian-themed song at his school’s talent show, the Los Angeles Unified School District reversed course and allowed the student to perform his “interpretive movement” to the song.] 

Michigan superintendents oppose ED’s special education maintenance of effort regulations

According to mlive, superintendents of local school districts throughout Michigan are opposing U.S. Department of Education (ED) proposed regulations that would prohibit school districts that receive federal special education funds from reducing the amount of local or state funding below the amount appropriated the previous year.  The purpose of the rule is to prevent districts from using federal funds to take on a larger share of special education costs by shifting local special education dollars to other uses.

Under ED’s regulations, school districts that failed to “maintain effort” because they reduced local contributions to special education funding would be subject to penalties, including the loss of federal funds.  This “maintenance of effort” provision has drawn criticism from school officials across the nation, including superintendents from a number of Michigan districts.

The majority of comments express concern about the effect state budget cuts could have on the ability of local districts to maintain special education funding levels.  Several of the comments appear to be form letter objections to the proposed rules prepared by the  American Association of School Administrators.

mlive, 12/2/13, By Brian Smith

[Editor's Note: On December 4, 2013, the National School Boards Association (NSBA) submitted comments on ED's proposed maintenance of effort (MOE) regulations.  NSBA agreed that there is a "need for clarification of the standards a state educational agency (SEA) is to use to determine both a local educational agency’s (LEA) compliance with the MOE regulations and eligibility to receive Part B funds."  At the same time, NSBA expressed disappointment that ED "would not also propose amendments that adequately recognize the significant fiscal challenges facing many states and local communities in the delivery of educational services to both general and special education students."

The form letter referenced in the mlive article is actually a call to action on AASA's "The Leading Edge" blog.  The blog entry encourages members to submit comments to ED using one of two form options provided.

In June 2010, Legal Clips summarized an article in Education Week reporting that ED had granted both Iowa and Kansas waivers from the MOE requirement.  A built-in escape clause in the Individuals with Disabilities Education Act allows such waivers in “exceptional or uncontrollable circumstances such as a natural disaster or a precipitous and unforeseen decline in the financial resources of a state.” (20 USC §1412(a)(18)(C)(i)).] 

Alabama State BOE seeks dismissal of suit challenging its takeover of Birmingham schools

AL.com reports that the Alabama State Board of Education (ABE) is seeking dismissal of a suit challenging the state’s takeover of Birmingham’s school system.  In the spring of 2012 the state board of education voted to intervene in the financially struggling Birmingham City Schools system.  Since then state officials have overridden several Birmingham Board of Education votes.  In February a group of five voters, including then-Birmingham Board of Education members Virginia Volker and Emanuel Ford and Alabama Education Association representative Michael Todd, who lives in the city, filed a lawsuit that says the state’s intervention in the city school system violated Sections 2 and 5 of the federal Voting Rights Act (VRA).  That group contends the state school board grabbed authority away from voters who elected the Birmingham Board of Education, which is majority black.  The state board should have gotten pre-approval for its 2012 intervention plan under Section 5 of the Voting Rights Act, the group argued.

The suit was brought under § 5 and § 2 of the VRA.  The federal district court dismissed the § 5 count in July 2013 based on the U.S. Supreme Court’s ruling in June 2013 striking down that part of the law, which required Alabama and some other states to have election changes pre-approved.

The ABE has filed a motion to dismiss the remaining § 2 claim.  It contends that § 2, which prohibits discrimination in voting nationwide, is not applicable because there is no claim that “any Birmingham voter was, or will be, deprived of the right to vote, or that the strength of any person’s vote has been diluted compared to anyone else’s vote.”  The motion further argues that unlike the typical § 2 claim, where the plaintiffs contend that an election scheme dilutes a racial group’s ability to elect their preferred candidate, the Birmingham plaintiffs are employing § 2 to “remedy ‘dilution’ of the authority of public officials who have already been elected – in non-discriminatory elections – and taken office.”

The ABE argues that such a claim is “simply not a VRA claim.”  It contends the case such be dismissed because “there is no constitutionally protected right to vote for members of the school board, and the intervention was rationally related to a legitimate state purpose.”  ABE’s motion further states that “the elected members of the Birmingham BOE have continued to exercise their authority as board members, except on a few specific occasions when Dr. Richardson [serving as the State-appointed Chief Financial Officer of the Birmingham Board of Education] required the Board to take particular fiscally prudent actions.”

Source: AL.com, 12/5/13, By Kent Faulk

[Editor's Note: In February 2013, Legal Clips summarized a story on WBRC Fox 6 reporting that the Alabama Education Association had filed suit in federal court against ABE, state Superintendent Tommy Bice, and Ed Richardson, Chief Financial Officer of Birmingham City Schools, alleging that voters in the city of Birmingham have been disenfranchised by the state takeover of the city’s school system.

The U.S. Supreme Court VRA decision referred to in the AL.com article, Shelby Cnty., AL v. Holder, as summarized by Legal Clips in June 2013, held that § 4 of the VRA is unconstitutional and its formula can no longer be used as a basis for subjecting jurisdictions to preclearance.]

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