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Lawsuit alleges that Florida’s Tax-Credit Scholarship Program violates state’s constitution

The Orlando Sentinel reports that a coalition of public school advocates led by the Florida Education Association (FEA), which includes the Florida School Boards Association and the Florida PTA, have brought suit against Florida alleging that the Tax-Credit Scholarship Program ( TCSP) violates the state’s constitution because it redirects taxpayer money to religious schools and creates a separate system of state funded schools. The program is expected to provide private-school tuition for nearly 70,000 students from low-income families. Approximately 70% of the schools participating in the program are religious schools.

According to FEA Vice President Joanne McCall, the program is a  “risky experiment” which sends students to private schools that are largely “unregulated” and that do not have to follow state academic standards, teacher-hiring requirements or accountability rules.  

Backers of the TCSP decried the lawsuit calling it “appalling” and “disheartening”. Former Governor Jeb Bush called the lawsuit the ” latest attack on parental choice by an entrenched education establishment.” Lake County parent, Autumn Nelson said that she applied for scholarships for her children because their local elementary school was struggling and seemed to focus solely on subjects covered by state tests, with no time for art, music, physical education or even recess. When she heard about the lawsuit, Nelson said she thought, “Isn’t it unconstitutional to accept my tax dollars and force my child to go to a school that I don’t even get to choose and it’s failing?”

The TCSP has been controversial since its inception. But opponents voiced more objections this year when the state legislature increased the amount of the tuition voucher, from $4,880 to $5,272, and expanded the pool of eligible students. Earlier this year FEA filed a separate lawsuit alleging that the legislature illegally approved that expansion.

In 2006, the Florida Supreme Court struck down the Opportunity Scholarship Program, the first statewide voucher program in the nation.  Some of the groups behind this lawsuit-the Florida PTA and the Florida School Boards Association among them-include some of those who successfully challenged the constitutionality of the first school voucher program.

Unlike the voucher program ruled unconstitutional in 2006, the TCSP is not funded directly from the state budget. Instead, corporations donate money for scholarships and then get a credit on their state tax bill. Nonetheless, Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, says the program is “just a thinly veiled attempt to siphon taxpayer’s dollars to private religious schools.”

However, The U.S.  Supreme Court upheld Arizona’s similar tax-credit scholarship program in 2011, and the New Hampshire Supreme Court recently upheld its state’s program.

Source: Orlando Sentinel, 9/2/14, By Leslie Postal

[Editor’s Note: In July 2014, Legal Clips summarized an Orlando Sentinel article reporting on FEA’s other suit challenging the law expanding the program to disabled students on the ground the law violates the state constitution’s single-subject requirement for bills.  

In April 2011, Legal Clips summarized the U.S. Supreme Court decision in Arizona Christian Sch. Tuition Org. v. Winn upholding Arizona’s tuition tax-credit law on the ground the plaintiffs lacked standing to bring the suit.

On September 2, 2014, Lorraine Bailey of Courthouse News Service reported that the New Hampshire Supreme Court upheld the state’s tuition tax-credit law on the ground that the state law giving the plaintiffs standing to challenge the tax-credit law was itself unconstitutional. It concluded that expansion of standing impermissibly authorizes the court to give private individuals advisory opinions.]

California governor appeals court ruling overturning tenure protections for teachers

The New York Times reports that Governor Jerry Brown has appealed a California judge’s ruling that threw out teacher tenure protections for California teachers.  By appealing the decision, Brown waded into an intense national battle that has pitted teacher unions against a movement to weaken tenure protections.

In June, Superior Court Judge Rolf  M. Treu ruled that tenure protections for teachers deprive students of a constitutional right to an education and disproportionally hurt poor and minority students. “The evidence is compelling,” the judge wrote. “Indeed, it shocks the conscience.” He issued a final ruling in the case late last week.

In a one-page appeal filed late Friday afternoon, Brown and state attorney general, Kamala D. Harris, argued that a decision of such scope needed to be made by a higher court and that the judge in the case had declined a request by the governor and attorney general ” to provide a detailed statement of the factual and legal bases for its ruling.”  “Changes of this magnitude, as a matter of law and policy, require appellate review,” it said of the case.  Tom Torlakson, the state’s superintendent of public instruction, had also requested that Harris file the appeal.

The case was brought by an organization of students, Students Matter, backed by a Silicon Valley technology millionaire, David Welch. A lawyer for the organization, Theodore J. Boutrous Jr., criticized Brown’s decision to appeal. “The State of California should be supporting and protecting students not defending these harmful and irrational laws”, Boutrous said Saturday.” ” Judge Treu got it exactly right, and this appeal is destined for failure.”

Teachers unions in California have denounced the decision, saying that teachers are being wrongly scapegoated for the failures of educational institutions. But, the ruling was strongly welcomed by the United States Department of Education Secretary Arne Duncan.

Source: The New York Times, 8/30/14, Adam Nagourney

 [Editor’s notes:  In July of 2014, Legal Clips summarized a story from the Daily Reporter which reported that  California Attorney General (AG) Kamala Harris filed a request, without indicating whether the state would file an appeal, asking the Los Angeles County Superior Court to clarify some points in the tentative decision and issue a final opinion in Vergara v. California, the recent teacher tenure case. The AG cites each point the court made regarding the five challenged laws, which dictate when teachers are given tenure, subject to budget-based layoffs, and dismissed for unprofessional conduct, and asks it to provide the factual bases for the findings.]

 

U.S. Department of Education denies Oklahoma’s request to extend its waiver under No Child Left Behind

The Oklahoman  reports that the U.S. Department of Education (USDE) denied Oklahoma’s request to extend the flexibility waiver under No Child Left Behind, a decision which will place restrictions on nearly $30 million in annual federal funding for local school districts beginning with the 2015-2016 school year. The waiver had allowed Oklahoma school officials to spend the federal funding as they saw fit. This move will now require that a total of about $29 million in federal funding, or 20% of $145.5 million, be set aside to pay for tutoring and transportation by schools considered to be in need of improvement.

The move follows the passage of House Bill 3399 which repealed Common Core earlier this year.

USDE Assistant Secretary Deborah Delisle wrote in a letter to Oklahoma State Secretary of Education Janet Barresi that the state’s waiver was denied because Oklahoma ” can no longer demonstrate that the State’s standards are college-and-career ready standards.” Because of the loss of the waiver, as many as 1,600 Oklahoma public schools will be considered to be underperforming and will be designated as needing improvement under No Child Left Behind.  About $20 million in federal funds could be restricted as early as this school year to implement improvements that would bring the schools into compliance, officials added.

Barresi, who requested the extension, said that she was “frustrated” and “disappointed” but not “terribly surprised” by the decision. She called the decision ” all but inevitable” with the passing of the legislation which scrapped Common Core. “Oklahoma has made great strides towards strengthening its schools largely because of the flexibility of the waiver that has freed the state, school districts and schools from 13 federal regulations,” Barresi said.” The regulations of No Child Left Behind, I believe, are counter-productive and overly rigid, and they will pose a number of serious challenges for all our schools.”

The waiver was granted after Oklahoma adopted Common Core standards for math and English.  After the repeal of Common Core, Oklahoma public schools returned to previous academic standards.

Leaders of the Oklahoma State School Boards Association, the Cooperative Council of Oklahoma School Administration and the United Suburban Schools Association issued a joint statement saying that the decision from Washington was “no surprise.”  “The U.S. Department of Education’s denial of the waiver request is disappointing but comes as no surprise,” the statement reads.” This was a foreseeable consequence of the passage of House Bill 3399.”

Oklahoma City Public Schools Superintendent Rob Neu said he wasn’t surprised by the federal agency’s decision to revoke Oklahoma’s waiver. ” This makes the state Legislature’s decision to repeal Common Core that much more disconcerting,” he said.” Our state elected leaders knew we had a risk of going back to the failed public policy of No Child Left Behind.  Simply put, this is bad for our children.”

Representative Jason Nelson, the author of House Bill 3399, says that the denial of the waiver was a politically driven decision, but it won’t have much effect as a practical matter. He said that despite the loss of the waiver, he thinks that passage of the bill to end Common Core without having new academic standards to replace it was the right thing to do.” Since education is uniquely a state issue, I think it’s in the best interest of the state to do what’s in the best interest of our education system without deferring to Secretary (Arne) Duncan.  From that perspective, I think we did the right thing.”

Source:  The Oklahoman, 8/28/14, Tim Willert

 [Editor’s notes: In July, 2014, Legal Clips reported on the Oklahoma Supreme Court’s decision upholding the legislature’s decision to repeal Common Core standards for the state. Within hours of hearing oral arguments in the suit challenging the Oklahoma legislature’s bill repealing the Common Core academic standards, The Oklahoman reports, the state’s highest court ruled that the repeal legislation passed muster under the constitution. The Oklahoma Supreme Court rejected the plaintiffs’ argument that the state legislature had exceeded its authority by giving itself the power to draft new, replacement benchmarks for the state’s students.] 

 

Federal court partially dismisses former employee’s Title IX retaliation suit against Florida district

The Herald-Tribune reports that a federal district court in Florida has partially dismissed a lawsuit brought by a former school employee against the Manatee County School District (MCSD). Adinah Torres, formerly employed as a parent liaison at Manatee High School (MHS), filed an amended legal complaint alleging she and several students were sexually harassed by Rod Frazier, an assistant football coach at MHS, and that school officials retaliated against her when she reported the harassment.

The court dismissed two of three counts in Torres’ lawsuit, ruling that Title IX was preempted by the similar Title VII employment discrimination law and Torres did not file a Title VII lawsuit. Craig Berman, Torres’ attorney, insists Torres’ complaints should be covered under Title IX and not Title VII. He said that he plans to appeal the ruling with the United States Court of Appeals for the Eleventh Circuit.“We are confident Title IX provides adequate recourse,” Berman said.

The court dismissed Torres’ claim of sexual harassment by Frazier, along with her claim of sexual harassment of students and teachers. However, it left her claim of sexual harassment of students intact. According to Torres’ suit, she informed MHS administrators that Frazier was sexually harassing students and, as a result, was moved to a new office that made bathroom breaks difficult and was denied vacant teaching positions for which she was qualified.

Frazier, a former assistant football coach at Manatee High, pleaded no contest on April 30, 2014 to four counts of battery against former employees and students at Manatee. Frazier received six months house arrest and three years’ probation.

Three other suits have been filed in connection with Frazier’s sexual harassment. Steve Gulash, a former parent liaison and MHS assistant football coach, has filed a retaliation suit. MHS teacher Lynn Aragon has also filed a Title IX suit against MCSD. In addition, Danielle Kaddatz, the student whose letter alleging inappropriate behavior by Frazier sparked a police investigation, has filed a Title IX lawsuit.

Source: Herald-Tribune, 8/25/14, By Chris Anderson

[Editor’s Note: The district court’s opinion in Torres v. MCSD acknowledges that neither the U.S. Supreme Court nor the U.S. Court of Appeals for the Eleventh Circuit, which has federal appellate jurisdiction over Florida, has addressed the issue of whether Title VII preempts Title IX when school employees seek redress for discrimination and retaliation unrelated to their students. After noting that there is a split among the federal circuits as to whether Title VII preempts Title IX as to school employees’ discrimination and retaliation claims unrelated to their students, the district court held “Title VII preempts Torres’s Title IX claims to the extent that Torres seeks redress for retaliation based on her reports of being sexually harassed.”

 

 

Massachusetts’ highest court rules former teacher can keep pension benefits, despite prior criminal convictions for child pornography

Garney v. Massachusetts Teachers’ Retirement Sys., No. 11493 (Mass. Aug. 18, 2014)

Abstract: The Massachusetts Supreme Judicial Court has ruled that a former public school teacher, who pleaded guilty to several counts of purchasing and possessing child pornography, did not forfeit his pension by operation of state law based on his criminal convictions. The court concluded that the law in question, which requires forfeiture of public employee retirement benefits “after final conviction of a criminal offense involving violation of the laws applicable to [the employee’s] office or position,” was not applicable to the former teacher’s criminal convictions because those offenses “neither referenced public employment nor bore a direct factual link to his teaching position.”

Facts/Issues:  Ronald T. Garney (Garney), a ninth grade science teacher, was arrested in 2006 for the purchase and possession of child pornography. Shortly after his arrest, he received notice that he would be dismissed from his position for conduct unbecoming a teacher and resigned prior to his dismissal. On August 7, 2007, after his arrest, but prior to entering a plea, he filed a retirement application with the Massachusetts Teachers’ Retirement System (MTRS).  His retirement became effective on August 22, 2007. Garney was thereafter indicted and on December 20, 2007, he pleaded guilty to eleven counts of purchasing and possessing child pornography.

Garney received retirement benefits until 2009. In 2009, the MTRS board (board) issued a decision concluding that he had forfeited his benefits because of his conviction, by operation of G. L. c. 32, § 15 (4), which requires forfeiture of public employee retirement benefits “after final conviction of a criminal offense involving violation of the laws applicable to [the employee’s] office or position.” After receiving the findings of a hearing officer, the board concluded that there was “a direct link between Mr. Garney’s employment and his possession of child pornography,” in part because he used an e-mail address provided by the Department of Elementary and Secondary Education.  Therefore, the board concluded that he met the requirements of the statute, warranting forfeiture.

Garney filed a petition with a state district court for review of the board’s decision. The district court affirmed the board’s decision finding that teachers hold a position of special trust and that the criminal acts committed by Garney directly contravened his duty to protect the welfare of children. As a result, the district court concluded that a requisite link between his criminal convictions and his public position was established, such that his crimes “involv[ed] violation of the laws applicable to his office or position.”  The judge noted that the private nature of the crime, and the fact that it did not involve school resources or any of Garney’s students, did not call for a different result where the welfare of children is a core tenet of the teaching position, and the crime that Garney committed was directly at odds with this tenet.

Garney petitioned for certiorari review in the superior court. That court reversed the decision of the district court, and vacated the decision of the board that Garney’s pension was forfeited under G. L. c. 32, § 15 (4). The superior court concluded that although Garney’s crimes were severe and undoubtedly warranted both criminal prosecution and dismissal from his position, there was not a direct link between his convictions and his position as a teacher since his criminal offenses did not involve the use of school resources and he did not use his position as a teacher to facilitate his crime. It rejected the district court judge’s interpretation of prior caselaw and MTRS’ argument that because teachers fill a special societal role, a conviction of possession of child pornography necessarily violates the laws applicable to that role.

MTRS appealed the superior court’s ruling and the state Supreme Judicial Court transferred the case from the Appeals Court on its own motion to clarify the scope of one of its previous decisions related to the forfeiture of retirement benefits.

Ruling/Rationale: In limiting its review to the scope of the forfeiture provision, the Massachusetts Supreme Judicial Court affirmed the superior court’s decision, which reversed the district court and vacated the MTRS board’s decision.  The state supreme court concluded that the fact that Garney’s position is one of special public trust, and that criminal conduct of the type committed by the Garney violates that trust, is insufficient in and of itself to warrant forfeiture of his pension benefits.  The court concluded that the conduct must either directly involve the position or be contrary to a central function of the position as articulated in applicable laws, thereby creating a direct link to the position.

The court began its analysis by pointing out that the “direct link” requirement of the forfeiture law does not mean that the crime must necessarily reference public employment, the employee’s particular position or duties, or that the crime necessarily must have been committed at or during work. However, the court emphasized that in the absence of such circumstances, “there must be some direct connection between the criminal offense and the employee’s official capacity by way of the laws directly applicable to the public position.”

The supreme court concluded that Garney’s offenses neither referenced public employment nor bore a direct factual link to his teaching position. It cited the fact that his crimes were committed outside school, did not involve the use of school resources and no student was involved in his illicit activities. In a footnote, the court stressed its agreement with both the district and superior courts that Garney’s use of a government issued email address to access at least some of the pornography websites did not establish a sufficient factual link between his criminal offenses and his teaching position. It cited a number of cases in which the lack of a factual link had been fatal to the MTRS board’s claim that forfeiture was warranted.

The court rejected MTRS’ argument that even in the absence of a factual connection between Garney’s crimes and his public position, a direct link exists because his position as a teacher involves holding a special public trust and “his criminal conduct of possessing child pornography strikes at the ‘heart’ of this position by violating one of its ‘fundamental tenets,’ as embodied in the professional standards for teachers.” Instead, it concluded that the fact that Garney held a special public trust as a teacher and that his criminal activity violated that trust, was insufficient on its own to warrant forfeiture under G. L. c. 32, § 15 (4).

The supreme court pointed out that the standards entering or remaining in the profession of teaching “are not the same as the standard for forfeiting a pension to which an employee has contributed and that he or she earned over the course of many years of public service.” It found that the forfeiture law requires “something more specific than a violation of a special public trust in the particular public position.” While acknowledging conduct betraying that public trust may warrant dismissal from the profession,” it is insufficient to justify forfeiture under G. L. c. 32, § 15 (4).

The court emphasized that to adopt MTRS’s interpretation of the statute would result in forfeiture of a teacher’s pension for the commission of just about any crime and this is well beyond what the legislature intended when it promulgated the statute.

The court then addressed the question of whether Garney’s conduct violated any laws applicable to his position as a teacher. It found that his conduct had not. It concluded:

Private possession of child pornography by a secondary school teacher does not directly contravene this central function where there is no indication that this possession compromised the safety, welfare, or learning of the children whom he was tasked with teaching or impeded his ability to provide adequate educational lessons to his students. As reprehensible as Garney’s crimes may be, the entirely private nature of his conduct does not call into question the effectiveness of the educational system of the Commonwealth.

Lastly, the supreme court rejected MTRS’s contention that Garney’s status as a mandated reporter of child abuse provides the requisite connection for forfeiture. It pointed out that the duty to report arises only when the teacher becomes aware of or suspects child abuse while fulfilling his professional duties.  It found that not only was Garney not aware of the identities of the children in the pornography and therefore did not have the requisite information, but he also did not learn of this abuse in his professional capacity.  The court said, “As Garney’s criminal conduct was independent of his role as a teacher, he was not required under the plain meaning of G. L. c. 119, § 51A, to report this conduct.

Garney v. Massachusetts Teachers’ Retirement Sys., No. 11493 (Mass. Aug. 18, 2014)

[Editor’s Note: In July 2014, Legal Clips summarized an article in The Denver Post reporting that in Colorado, those designated as “mandatory reporters” under state law seldom face criminal sanctions for failing to report suspected child abuse to law enforcement or child welfare services. Educators are among those designated as “mandatory reporters.” Failing to do so can result in criminal charges and up to six months in jail.]

New York City reaches a tentative contract and a proposed settlement agreement with school safety agents’ union

The New York Times reports that the City of New York and Teamsters Local 237, the union which represents school safety agents and special officers, have reached a tentative contract and a proposed settlement in a class action pay equity lawsuit. The proposed settlement  would distribute $38 million in back pay to current and former school safety agents who are  overwhelmingly female. The tentative contract would raise wages by 10% over seven years and both job titles would fall under the same seven-year pay step plan. This would allow both the school safety agents and special officers to earn a maximum of $46,737 annually by March of 2017.

School safety agents and special officers are both unarmed guards who can make arrests.  Despite having the same duties, the school safety agents earn up to $35,000 annually while the maximum salary for a special officer is $42,332. Approximately 70% of the school safety agents are female, while 70% of special officers are male.

” The previous policy was wrong,” Mayor Bill de Blasio said bluntly during a news conference at Cobble Hill School of American Studies in Brooklyn. During his campaign, he had promised to resolve the litigation which dates back to more than four years.  Since taking the job in January, he has been praised for hiring women and for the prominence of women in top posts.

Kangela Moore, who started as a school safety agent 22 years ago and has been an agent instructor for 10 years, said that the narrowing of the wage gap would make a tremendous difference in her everyday life.” Now, I’m able to put food on my table,” she said at the news conference. ” We’re able to do so much more with the outcome of this lawsuit.”

The proposed settlement agreement is pending court approval next month. The cost of the overall raises for both agents and officers is $68 million, and the city would spend an additional $47 million to accelerate the salaries of agents whose pay was lagging. Agents employed for at least three years by September 1 and retired agents who worked between March 5, 2010 and August 31 would get $7,000 in retroactive pay.

Source: The New York Times, 8/26/14, By Nikita Stewart

[Editor’s Note: In response to the U.S. Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire and Rubber Co., 550 U.S. 618 (2007), rejecting a female employee’s Title VII sex discrimination suit based on salary disparity with male counterparts (the female supervisor  discovered that a series of annual merit pay increases were between 15% and 40% lower than her male counterparts), the U.S. Congress passed and President Obama signed into law the Ledbetter Fair Pay Act (LFPA)in 2009. 

In Ledbetter, the Court rejected the “paycheck rule,”  holding that the statute of limitations on an equal pay claim begins to run when the employer makes the salary-determination decision. The LFPA amended Title VII , along with a number of other federal anti-discrimination suits,  so that the statute of limitations starts running afresh each time an employee is adversely affected by the salary-determination decision; i.e. each paycheck.]

Report says ten large California districts spent $125.6 million on lawsuits over the past three years

The San Jose Mercury News reports that ten large California school districts, including San Jose Unified (SJU), together spent $125.6 million on lawsuits over the last three years.  The report, released this week by California Citizens Against Lawsuit Abuse (CCALA), looked at the costs of verdicts, settlements and outside counsel, but not in-house counsel, for 10 large school districts from 2010-2011 through 2012-2013.

During that three-year period, SJU spent $2.24 million on outside counsel. It did not have any verdict or settlement costs. Superintendent Vincent Matthews noted that the district spent less than 1 percent of its general fund budget on legal costs, while not laying off employees or cutting instructional programs in those years.

The report noted that “Litigation costs place an enormous burden on school district budgets.” Of the 10 districts’ $125.6 million in legal spending, about 83% paid for outside lawyers. To reduce the costs of litigation, the report said some districts employ aggressive risk-management programs and some fight questionable claims rather than offering quick settlements.

Source:  San Jose Mercury News, 8/26/14, By Sharon Noguchi

[Editor’s Note: The introduction to CCALA’s report, 2014 School Litigation Report, states: 

While this report does not present an exhaustive accounting of the cost of litigation to school districts in California, the data it contains make one point exceedingly clear: high litigation costs reduce the financial resources available to California’s K-12 students. If California passed common sense legal reforms to reduce the incentives for abusive lawsuits against school districts, districts could focus more of their limited resources where they belong: providing students a higher quality education.]

Georgia parent seeks court order allowing him to carry gun when visiting his daughter’s school

The Atlanta Journal-Constitution reports that GeorgiaCarry.org has filed suit on behalf of Huge Meyers seeking to establish his right to carry a gun while on school property. According to the suit, Beulah Elementary School’s principal told Meyers he would be arrested if he carried a gun on school property at times other than when he was dropping off or picking up his daughter, despite the fact that Georgia law, which took effect on July 1, 2014, allows a licensed gun owner to bring a firearm to school.

The suit states:

Meyers frequently comes to the school to support his daughter’s educational activities. While doing so, he desires to carry a firearm in case of confrontation, as the law now permits. He would do so, however, under threat of arrest and prosecution.

Meyers contends that when the law took effect, it became illegal only for unlicensed gun owners to have their weapons inside a school safety zone.

His brief supporting the motion for a temporary injunction says: “Now that it no longer is a state crime for a (licensed gun) holder to carry a firearm in schools, and that schools cannot independently regulate carrying weapons, including firearms, there simply is no basis for (school officials) to threaten … prosecution if he carries a firearm at Beulah.”

Meyers says that since he has a clearly established right to carry a gun at the school, he will be irreparably harmed if he is prevented from doing so.

Source: The Atlanta Journal-Constitution, 8/21/14, By Rhonda Cook

[Editor’s Note: In March 2013, Legal Clips summarized a story from WZZM13.com reporting that members of the board of the Rockford Public Schools in Michigan had approved a new “weapons-free school zone” policy for the district, which would prohibit any unauthorized firearms on campuses. The new Rockford policy does not allow any weapons on school property, unless the person carrying the weapon is a police officer or other law enforcement official, or a person authorized by the superintendent to bring it onto school grounds for educational or security purposes. ]

District uniform policies are constitutional provided they do not limit student freedom of expression

Allentown School District (ASD) in Pennsylvania enters the second year of its uniform policy, reports The Express-Times.  Pennsylvania is among 22 states and the District of Columbia with laws permitting school uniform rules based on local school district preferences.

“It is something that the parents have wanted,” said Nicolas Perez, director of community and student services for ASD. District officials indicate that the new uniform policy has been a success.

Districts that want to regulate clothes can’t do it at the expense of individual expression, according to Perry Zirkel, a Lehigh University education and law professor. To avoid a free speech lawsuit, districts’ school dress code policies must be “content neutral,” meaning that they don’t favor any particular viewpoint or message. If uniforms are mandated, they need to be available at reasonable prices, Zirkel said.

This year, ASD will allow more color options for sweaters and shoes. The longer the policy remains in place, the more students and families will adjust, said Perez. “If we know that there is an issue as to why the student didn’t wear a uniform, maybe a home issue, we try to accommodate the student,” Perez said. “We have uniform banks with clothes students can borrow for the day if need be, and we communicate with the parents.”

According to the Education Commission of the States, the following states also have laws permitting school uniform policies for public schools: Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Illinois, Louisiana, Minnesota, Mississippi, Missouri, Nevada, New Jersey, North Carolina, Ohio, Oklahoma, Tennessee, Texas, Utah and Virginia.

Source:  The Express-Times, 8/25/14, By Pamela Sroka-Holzmann and Sara K. Satullo

[Editor’s Note: In February 2014, Legal Clips summarized a decision by a U.S. Court of Appeals for the Ninth Circuit three-judge panel in Frudden v. Pilling holding that a Nevada public elementary school’s uniform policy implicates students’ First Amendment Free Speech rights and, therefore, must be analyzed under the strict scrutiny standard.  The mandatory uniform policy required students to wear shirts containing the school’s motto (“Tomorrow’s Leaders”), which constituted compelled speech under the First Amendment. The uniform policy also included an exemption allowing students to wear the “uniform of a nationally recognized youth organization such as the Boy Scouts or Girl Scouts.” The panel determined that the provision was content-based, thus implicating First Amendment rights.  The case was remanded for the district court to apply the strict scrutiny analysis to the policy.] 

ED Secretary Duncan offers teachers leeway on job performance tied to standardized tests

According to The Washington Post, U.S. Education Secretary Arne Duncan recently announced a plan to allow states to delay using student standardized test results on teacher performance evaluations, a move widely seen as an effort to calm tension between Duncan and the nation’s educators.

Duncan said that the delay will allow states “to take pressure off teachers” who had expressed concern over standardized exams which this year will include new material based on Common Core standards.  “If we can provide some flexibility, we will do that,” he said.

Duncan spoke about the plan D.C. Public School’s Jefferson Academy middle school in Southwest D.C.  While there, he participated in a panel discussion with teachers from the city and around the country on new testing proposals. “We’re concerned about this issue of over-testing,” Duncan said. “We don’t want them taking all their time taking tests or in test preparation.”

Under the new guidelines, states can apply for permission to delay including testing data on teacher ratings, a key provision of No Child Left Behind.  The announcement marked the second time in a little more than a year that the Education Department has revised how student performance data may affect teachers.  In June 2013, Duncan announced that states could also wait one year on any personnel decisions for teachers whose evaluations were based on student performance on standardized tests.

This latest action by Secretary Duncan marks yet another move which looks to be aimed at repairing the relationship between him and educators.  At a National Education Association convention this year, delegates called on Duncan to resign because of his “failed education agenda.”

Randi Weingarten, president of the American Federation of Teachers – the country’s second largest teachers’ union – called the announcement a step in the right direction.” The department’s admission today that testing has gone too far is a good step, if there is a real course correction that is linked to concrete action and no[t] just words,” said Weingarten, who represents 1.6. million teachers.  “The over-testing this administration has often championed has sapped our students and our classrooms of the joy of learning.  We need to restore that joy now.”

Duncan acknowledges that the administration still thinks that standardized tests provide a valuable resource to schools and principals.  He stated that standardized tests are important to students and teachers but not so much that they overshadow learning in the classroom.  “No teacher, no school district should ever be defined as a single test score.”

Source:  The Washington Post, 8/21/14, By T. Rees Shapiro

[Editor’s Note:  In May 2014, Legal Clips summarized a report by The Washington Post which reported that seven high-achieving teachers, along with the Houston Federation of Teachers, had filed a lawsuit in federal court in Texas alleging that the Houston Independent School District uses a badly flawed method of evaluating teacher effectiveness, known as the “Educational Value-Added Assessment System.”  The teachers argue that the EVAAS is inaccurate and unfair but that it still plays a large role in determining how much teachers are paid and whether they can keep their jobs.  The suit contains claims under the Due Process and the Equal Protection Clauses of the U.S. Constitution. The “value added measure” purports to measure the “value” a teacher adds to student learning by plugging student standardized test scores into complex mathematical formulas that can supposedly factor out all of the other influences and emerge with a valid assessment of how effective a particular teacher has been.  The method has come under growing criticism in recent years, with assessment experts repeatedly warning that it is an unreliable method of making high-stakes decisions about educators.]

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