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States adopting laws requiring third graders to pass reading test or face retention

The Washington Post reports that a growing number of states are drawing a hard line in elementary school, requiring children to pass a reading test in third grade or be held back from fourth grade. Thirteen states last year adopted laws that require schools to identify, intervene and, in many cases, retain students who fail a reading proficiency test by the end of third grade. Lawmakers in several other states and the District of Columbia are debating similar measures. Not every state requires retention; some allow schools to promote struggling readers to fourth grade as long as they are given intensive help.

Advocates of the new tough-love policies say social promotion – advancing students based on age and not academic achievement – results in high-schoolers who can barely read, let alone land a job or attend college. Literacy problems are best addressed at an early age, they say. Critics say the policies reflect an accountability movement that has gone haywire, creating high-stakes tests for 8-year-olds. The child, not the school, bears the brunt of the problem, they say, pointing to research that shows that the academic benefits of repeating a grade fade with time while the stigma can haunt children into adulthood.

“This is completely unsettling. I’m concerned about a number of those legislative initiatives,” said Shane Jimerson, a University of California at Santa Barbara professor who has studied retention for 20 years, and found that, from a child’s perspective, being held back is as stressful as losing a parent. “This is deleterious to hundreds of thousands of students,” he said. “But children don’t have a voice. If you were doing this to any group that had representation, it would not be happening.”

Third grade has become a flashpoint in primary education because it is the stage when children are no longer learning to read but are reading to learn, educators say. If children have not mastered reading by third grade, they will find it hard to handle increasingly complex lessons in science, social studies and even math.

In some places, retention has morphed from an educational issue into a political fight. Tony Bennett, Indiana schools superintendent, lost his elected position in November to Glenda Ritz, a teacher who ran because she was angered by Bennett’s third-grade retention policy. Bennett, meanwhile, became state education commissioner in Florida, where the third-grade retention policy has served as a model for other states.

Literacy is a struggle for many U.S. children, with 33% of all fourth-graders nationwide reading below basic levels in 2011, according to federal data. For minorities, the picture was worse: Half of black and Hispanic fourth-graders were below basic in reading. Children who do not read proficiently by third grade are four times more likely to drop out of school than those who read well, according to a recent study by the Annie E. Casey Foundation.

A matter of debate for more than a century, decisions about whether to hold back a child usually have been made by teachers and principals in consultation with parents. But in an accountability era ushered in by the 2002 No Child Left Behind law, the new retention policies offer little wiggle room. Decisions are based on test scores, not the subjective judgment of teachers and administrators. Parents have little recourse. And individual students bear the impact, as opposed to an entire school being sanctioned for failing to perform.

The new approach began in earnest in 2002 in Florida under then-Governor Jeb Bush, who promoted an education strategy that also featured private-school vouchers, data-based assessments for schools and teachers, charter schools and online learning.

Mary Laura Bragg, who ran Florida’s third-grade retention program under Bush, said it forced elementary schools to get serious about literacy. Principals moved their best teachers to kindergarten and first and second grades, she said. Schools sought state funds for diagnostic reading tests and other help.  A study that tracked third-graders retained in Florida found that they showed significant academic gains in the first two years, but those effects faded over time. Still, fewer students have been retained each year since the policy took effect, which suggests the emphasis on early reading is having an impact.

In Ohio, Governor John Kasich signed into law the Third Grade Reading Guarantee, which says that starting this year, third-graders who fail a statewide reading test will not be permitted to enter fourth grade. Similar laws are rolling out in Indiana, Iowa, New Mexico, Tennessee and Colorado.

Most policies require that schools evaluate children as early as kindergarten and notify parents if their child is below grade level. Schools are required to create a plan for each student and provide intensive reading tutoring, summer reading programs or other help. Most states make exceptions to the retention policy for English language learners, students with disabilities, or children who have been previously retained.

Source: The Washington Post, 3/10/13, by Lyndsey Layton

[Editor’s Note: In July 2012, Legal Clips summarized an article in the Detroit Free Press, which reported that the American Civil Liberties Union of Michigan had filed a class action suit, which could have national implications, asserting a child’s fundamental right to read, the first suit of its kind. The suit charged that state agencies, as well as those overseeing Highland Park schools, failed to take the effective steps to ensure students are reading at grade level, as set forth by state law and the Michigan Constitution.]

ETS Commission calls for new tests to focus on student assessment to improve classroom instruction

As reported in Education Week, emerging technology and research on learning have the potential to dramatically improve assessments, if educators and policymakers take a more balanced approach to using them. That is the conclusion of two years of analysis by the Gordon Commission on the Future of Assessment in Education, a panel of top education research and policy experts that was launched in 2011 with initial funding from the Educational Testing Service (ETS).

In a report that was set for release recently, the Gordon Commission lays out a 10-year plan for states to develop systems of assessment that go beyond identifying student achievement for accountability purposes and toward improving classroom instruction and giving greater insight into how children learn.

Joanne Weiss, the chief of staff to U.S. Secretary of Education Arne Duncan but not part of the Commission, said the report “shines a needed spotlight on the future of assessment, pushing us to make the next stages of this vital work coherent, coordinated, and sustainable.” “When we get assessment right, it helps families, teachers, schools, and systems tailor learning to students’ needs and make wise decisions,” Weiss said in a statement. “Today, we stand on the cusp of the biggest advances in assessment in a generation, with assessments that are more useful and less intrusive, thanks in part to advances in education technology.”

Both the Partnership for Assessment of Readiness for College and Careers (PARCC), and the Smarter Balanced Assessment consortium are building computer-based testing systems accompanied by benchmarking tools to help guide instruction. However, the Gordon Commission says the common-core tests planned for roll-out in the academic year 2014-15, “while significant, will be far from what is ultimately needed for either accountability or classroom instructional-improvement purposes.” The common-assessment consortia “are trying hard to reform what we currently do, and the commission has been thinking about revolutionary change,” said Edmund W. Gordon, the Commission’s chairman and a professor emeritus of psychology at Yale University and the Teachers College at Columbia University.

“Assessment has been almost hung up on a commitment to help account for status and to use those assessments of prior achievements to hold individuals and systems accountable,” Gordon said in an interview. By contrast, the Commission argues that future educators should use systems of aligned assessments, which would inform instruction through a balance of fine-grained classroom diagnostic tests, challenging tasks and projects, and even analytic tools to sift through background data produced by students in the classroom or online.

Such tools would be used in conjunction with larger-grained accountability tests, which are administered less frequently and tend to have too long a turnaround time to be used to help teachers. For example, middle school students learning to subtract mixed numbers might use several different methods and substeps to solve different types of problems within that unit, and a teacher might give multiple formative tests on the subject. Formative tests are diagnostic tools that measure a student’s growth in an academic area over time. In contrast, summative tests provide a snapshot of student achievement at a specific point and are more commonly used for accountability.

“It makes a lot of sense to check along the way to see where your kids are doing well and getting hung up,” said Robert J. Mislevy, a member of the Commission and the chairman in measurement and statistics at the Princeton, N.J.-based ETS, which has helped design the National Assessment of Educational Progress, the SAT, Advanced Placement tests, and other well-known exams. But in an accountability test, he said, a state education chief may need only a representative sample of students to be given a handful of mixed-number-subtraction problems to get a picture of how well the state’s students understand that area. “To have 20 or 30 problems for every 5th grader to take—that’s a waste of time,” Mislevy said.

Roy Pea, a professor of education and learning sciences at Stanford University, who was not part of the Commission, agreed that tests developed for accountability purposes “largely ignore” the need for formative diagnostic tests used to improve instruction. “There are boundless benefits to endorsing [the Commission’s] proposal of transforming assessment to render it for education so as to inform and guide daily progress in learning and development, supporting education’s primary learning and teaching processes with richer pedagogies informed by the learning sciences,” Pea said in a statement.

The Commission calls for states to create a permanent “council on educational assessments,” modeled on the Education Commission of the States and supported with a small tax on sales of tests. This council would, among other tasks, evaluate the effectiveness of the common-core assessments; help set performance-level benchmarks for cross-state tests; provide professional development for teachers and the public on how to use different tests; and develop and study policies and protocols to protect students’ privacy while allowing the use of assessment data for research.

Source: Education Week, 3/13/2013, by Sarah D. Sparks

[Editor’s Note: In March 2013, Legal Clips summarized an article in Education Week, which reported on a study by the EPE Research Center that found that teachers feel unprepared to teach the curriculum for the common core assessments, especially to disadvantaged students, even as the Common Core State Standards are being put into practice across most of the country. The study by the EPE Research Center, an arm of Editorial Projects in Education, the publisher of Education Week, found deep wells of concern among teachers about their readiness to meet the challenges posed by the common core in English/language arts and mathematics.

Also in March 2013, Legal Clips summarized another article in Education Week, which reported that even though 34 states and the District of Columbia have NCLB waivers in hand, many of them are still negotiating with the U.S. Department of Education over their teacher-evaluation systems – a crucial component if they want to keep their new-found flexibility. More than six months after waiver recipients turned in their guidelines to ED, only 12 waiver states have gotten the green light for their evaluation systems. ED officials expect to start sending more approval letters soon, along with notices on which plans need more work.]

Supreme Court hears arguments in Voting Rights Act case affecting board member elections

Education Week reports that a major provision of the Voting Rights Act of 1965 that affects hundreds of school districts, especially in the South, recently went before the U.S. Supreme Court. The historic law requires states and other jurisdictions covered by Section 5 of the Act to obtain federal approval for any change in voting practices or procedures. For school systems, the law covers periodic alterations to voting districts for school board members or changes in the makeup of a board, such as switching from at-large to single-member districts. The 2006 renewal of the law by Congress extended for 25 years Section 5’s special treatment of states and jurisdictions with a history of voter discrimination. The renewal was challenged by Shelby County, Alabama, which argues that the law is an infringement on state sovereignty.

“Section 5 has done its work. People are registering and voting,” Bert W. Rein, the Washington lawyer representing the county, said during the Feb. 27 oral arguments in Shelby County v. Holder (Case No. 12-960). “But if you think there is discrimination, you have to examine that nationwide.”

Rein found sympathy among the court’s conservatives. Justice Scalia said the Voting Rights Act has become a “perpetuation of racial entitlements.” “I am fairly confident it will be re-enacted in perpetuity unless a court can say it does not comport with the Constitution,” he said. Justice Kennedy said the law’s preclearance requirements may have run their course, just as certain other prominent U.S. laws had. The Northwest Ordinance of 1787 for westward expansion, the Morrill Act of 1862 establishing land-grant colleges, and the post-World War II Marshall Plan to aid European recovery “were very good, too,” he said, “but times change.”

Members of the court’s liberal bloc defended the 2006 extension of the law. “This is a question of renewing a statute that by and large has worked,” said Justice Breyer. Justice Kagan said that Congress in 2006 compiled a 15,000-page legislative record and decided that although conditions had changed, “the problem was still evident enough that the act should continue.” “It’s hard to see how Congress could have developed a better and more thorough legislative record than it did,” she said.

Under Section 5, covered jurisdictions such as school districts must gain “preclearance” approval from either the U.S. Department of Justice or a special three-judge federal district court in Washington, D.C. for voting changes. The jurisdiction must show that the change does not deny the right to vote on the basis of race, color, or language-minority status.

Nine states are covered as a whole—Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia—as are certain jurisdictions in several other states.

Thanks in large part to Section 5, minority voters in small towns and rural areas “are finally having a voice on school boards” and other local bodies, U.S. Solicitor General Donald B. Verrilli Jr. told the court in a brief.

In a 2010 report that is not part of the present case, the National School Boards Association said 80.7% of school board members nationwide were white, 12.3% were African-American, and 3.1% were Hispanic. While the study did not distinguish elected from appointed board members in those groups, some 95% of board members are elected, the NSBA said.

The statute allows a covered jurisdiction to seek an exemption—called a “bailout”—from Section 5’s preclearance requirements if it has met certain conditions, chiefly a 10-year record of nondiscrimination in voting. The Obama Administration submitted a list of covered jurisdictions that have won such exemptions, including several dozen school districts. One of those jurisdictions was Merced County, California, which last year received a bailout from preclearance requirements for itself, its 22 school districts, and other local agencies.

“After … decades of compliance with Section 5, extensive work by the county to oversee compliance by independent cities and agencies that it does not control, the expenditure of more than $1 million in legal fees, … and more than two years of investigations by the United States Department of Justice,” says a friend-of-the-court brief filed by the county, “the county of Merced finally achieved its goal of bailing out of Section 5 coverage.” “That effort finally relieved the county of the stigma of being covered by a statute designed to target historic discriminators.”

Source:  Education Week, 3/6/10, by Mark Walsh

[Editors Note: In January 2013, Legal Clips summarized an article from The Dallas Morning News, which reported that Manny Benavidez, an unsuccessful school board candidate, had filed suit against Irving Independent School District (IISD) and its board alleging that the district’s new voting system is designed to disenfranchise Hispanics. The suit comes a year after IISD overhauled its electoral process in an effort to prevent just such a lawsuit. Benavidez’s legal complaint calls that overhaul “a sham that would continue to keep Latino-backed representatives off the school board,” which governs a majority-Hispanic school district but has no Hispanic trustees against Irving Independent School District (IISD) and its board alleging that the district’s new voting system is designed to disenfranchise Hispanics.]

Connecticut federal court rules cheerleading not a sport under Title IX

ABCNews.com reports that a U.S. District Court judge in Connecticut has again ruled that competitive cheerleading, despite some upgrades, is not a sport, and says Quinnipiac University must remain under an injunction that requires the school to keep its women’s volleyball team. Several volleyball players and their coach successfully sued the university in 2009 after it announced it would eliminate volleyball for budgetary reasons and replace it with a competitive cheer squad. U.S. District Court Judge Stefan R. Underhill ruled in their favor, saying that competitive cheerleading had not developed enough to be considered a college sport for Title IX purposes, and he ordered the school to keep the volleyball team and come up with a compliance plan.

In his latest ruling, Underhill said that the additions of the cheer team, now called “acrobatics and tumbling”, and a women’s rugby team do not give the university’s female students competitive opportunities equal to those offered to male students and he denied the school’s request to lift his previous injunction.

Quinnipiac spokeswoman Lynn Bushnell issued a recent statement saying the school is disappointed with the ruling, but “remains committed to its long standing plans to continue expanding opportunities in women’s athletics.”

While the judge noted that acrobatics and tumbling have made improvements, including more cohesive rules of competition and a better championship format, he said two organizations compete to oversee the activity and it is not recognized by the NCAA as a sport or even an emerging sport. “And without that recognition, acro lacks what every other varsity men’s team sponsored by Quinnipiac enjoys: the chance to participate in an NCAA-sponsored championship,” the judge wrote.

Underhill found that the rugby team lacked quality competition because only four other schools offer women’s rugby as a varsity sport, which meant the school’s team spent most of its inaugural season playing club teams.

Attorney Jon Orleans, who argued the case for the volleyball players along with the American Civil Liberties Union of Connecticut, said it was significant that the judge went beyond just counting male and female athletes at the school. “The court went on to analyze the quality of competition offered to men’s teams and women’s teams, and found that women at Quinnipiac were not, on the whole, provided with competitive opportunities equivalent to those provided to men,” he said. “This is one of very few, if not the only, court decisions to address this particular aspect of Title IX’s requirements.”

Source: ABCNews.com, 3/6/2013, By Pat Eaton-Robb

[Editor’s Note:  In October 2012, Legal Clips summarized an article from The Associated Press (AP) reported in The Republic, which reported that a federal judge in Indiana had signed a consent decree between the Franklin County Community School Corp., former girls basketball coach Amber Parker, and nine of its opponent schools which called for girls’ and boys’ games to be scheduled equally by the 2016-17 school year, with interim steps until then. According to Parker’s attorney, William Groth, the agreement to schedule girls’ and boys’ basketball games equally on Friday and Saturday nights had set a legal precedent for the entire state of Indiana.

In December 2011, Legal Clips summarized an article from the Daily World, which reported that the parents of two female student-athletes had filed suit against the St. Landry Parish School System alleging Title IX violations. Paul and Alanna Barbour’s suit charged the district with sex discrimination under Title IX, by not allowing their daughters to participate in softball and volleyball. Shelbi and Erin Barbour then attended Opelousas High School where they had participated in multiple extracurricular activities.]

Michigan district defend students’ journalistic freedom while some parents complain

The Ticker reports that although a recent article in the Traverse City Central High School’s (TCCHS) Black & Gold newspaper has upset some parents, school district officials say the controversy presents a learning opportunity for students who worked on the paper. The article in question appeared in the paper’s satire section called The Leek.

Under the headline “Grinding: A guide for future reference,” the satirical article mocked the district’s recent crackdown on lewd dancing at school events. The article gave step-by-step instructions on how to perform “grinding,” or sexually suggestive dance moves. Accompanying photographs showed two students acting out each step.

A number of parents complained about the article, arguing the photos and subject matter were “highly inappropriate.” Traverse City Area Public Schools (TCAPS) Superintendent Steve Cousins reviewed the complaints and agreed with the parents’ assessment, telling The Ticker: “The students’ attempt at satire crossed the line.”

However, both Cousins and TCCHS Principal Rick Vandermolen defended the Black & Gold, noting that students are purposefully given a wide latitude in journalistic expression as part of their learning environment at the school.

“Our students take their work seriously and have won many awards as a result of that for the newspaper,” Mr. Cousins said. “We want them to be able to push boundaries and have genuine expression. At the same time, they need to be sensitive to our cultural norms at the school. They didn’t use that judgment this time. But they’re kids and they’re doing their best, and this offers an opportunity for us to have a conversation about what’s appropriate and how we can improve going forward.”

Vandermolen agrees, noting that while in this situation the students “clearly crossed a line,” boundaries are not black-and-white and the school’s goal isn’t merely to “publish a newspaper that’s not offensive.” “I want the students to have a wide berth,” he explained. “For me, it’s not a disciplinary situation but rather a conversation with the students about proper conduct and expectations for the paper.”

TCAPS is just one in an extensive parade of school districts across the country that have wrestled with how much – if any – editorial control they should exert over student newspaper content. High school stories on topics including abortion, marijuana legalization, religion, politics, sexual orientation and – yes, lewd dancing – have resulted in heated school board meetings, the firings of faculty advisers, and courtroom battles over free speech.

Frank LoMonte, Executive Director at the Student Press Law Center, points out that students traditionally retain First Amendment rights while on school property. However, the 1988 U.S. Supreme Court decision in Hazelwood School District v. Kuhlmeier gives public school officials grounds to censor some student content “if they demonstrate reasonable educational justification” for doing so, said Mr. LoMonte. He added that “it’s not terribly clear whether removing an article for taste reasons” is covered under that provision.

Even with that distinction, Mr. LoMonte notes that students should take into account two questions when deciding whether to publish content: What does the law allow you to publish? And what should you publish in the interest of good professional judgment? “This might be an example of a violation of the latter, where it wasn’t good professional judgment to publish this article even if they legally could,” he explains. “But the school district is absolutely right to treat this as a teachable moment, rather than a punishable offense.”

Source:  The Ticker, 3/7/13, By Beth Milligan

[Editor’s Note: On March 7, 2013, the Student Press Law Center (SPLC) reported on a similar dispute at Mountain View High School in California. According to SPLC, a number of parents complained to members of the Mountain View-Los Altos Union High School District school board about an article in the student newspaper that discussed the state of the sex education curriculum at the school.

One of the parents told the board that she had contacted the California State Board of Education to make a formal complaint against the district “for not enforcing the behavioral guidelines and allowing articles promoting illegal and obscene behavior to repeatedly be printed in the school newspaper.”  Superintendent Barry Groves said he had not yet received notice of a complaint. Mr. Groves said that he does not anticipate the district making any policy changes related to the newspaper issue, citing California’s broad First Amendment laws concerning students.

In January 2013, Mr. Mark Walsh of Education Week reviewed the history of Hazelwood School District v. Kuhlmeier on its 25th anniversary (“Landmark Student-Press Ruling Resonates Decades Later“), providing inside information on the Justices’ votes and commentary on the affects the decision had on school newspapers. ]

South Dakota enacts law allowing armed teachers and staff on school grounds

According to an Associated Press (AP) report, South Dakota Governor Dennis Daugaard signed a bill allowing the state’s school districts to arm teachers and other personnel with guns. The bill’s main sponsor, Representative Scott Craig,  said that he had received messages from a growing number of school board members and administrators who back it. Craig said rural districts do not have the money to hire full-time law officers, so they are interested in arming teachers or volunteers.

However, several representatives of school boards, school administrators, and teachers opposed the bill during committee testimony last month. They said the measure could make schools more dangerous, lead to accidental shootings, and put guns in the hands of people who are not adequately trained to shoot in emergency situations.

For a dozen years, Utah has allowed teachers and others with concealed carry licenses to wear a gun in public schools. A couple of school districts in Texas have been given written authorization to allow guns in schools. And legislatures in other states, including Georgia, New Hampshire, and Kansas are working on measures similar to South Dakota.

Earlier in the week, the South Dakota House voted 40-19 to accept the Senate version of the bill, which added a requirement that a school district must decide in a public meeting whether to arm teachers and others. Another Senate amendment allowed school district residents to push a school board’s decision to a public vote.

The measure does not force a district to arm its teachers and would not force teachers to carry a gun.

Source:  Associated Press, 3/8/13, By Staff

[Editor’s Note: In December 2012, Legal Clips summarized an AP article in the Times-Picayune, which reported that in the community’s lone school in Harrold, Texas, some of the teachers were carrying concealed weapons.  In remote Harrold, the nearest sheriff’s office is 30 minutes away, and people tend to know – and trust – one another.  So the school board voted to let teachers bring guns to school.]

Colorado appellate court rules parents/taxpayers have no standing to challenge district’s private school voucher program

Taxpayers for Public Education v. Douglas Cnty. Sch. Dist., Nos. 11CA1856 /11CA1857 (Colo. App. Ct. Feb. 28, 2013)

Abstract: In a 2-1 split, a three-judge panel of the Colorado Court of Appeals has ruled that the plaintiffs, who include students, parents, taxpayers, and non-profit organizations, lacked standing to challenge the Douglas County School District’s (DCSD) Choice Scholarship Program (CSP), which provides vouchers for private school tuition under Colorado’s Public School Finance Act of 1994 (PSFA). The panel also rejected, on the merits, the plaintiffs’ claims that the CSP violates a number of state constitutional provisions.

Facts/Issues: In March 2011, the Douglas County school board adopted the CSP to begin in the 2011-12 school year. Under the CSP, a family could receive a voucher consisting of public funds to use to send their student to a private school in Douglas County, including religious schools, as well as other private and religious schools outside of Douglas County. Later in 2011, the plaintiffs filed suit, originally in two groups which were consolidated by the district court, claiming that the CSP violated the PSFA and various provisions of the state constitution. The defendants moved to dismiss for failure to state a claim. The plaintiffs moved for a preliminary injunction, claiming that the CSP violates the PSFA because DCSD will impermissibly use state funds distributed by the state department of education to pay for private school tuition at private schools.

The district court rejected the defendants’ challenge to the plaintiffs’ standing to seek judicial enforcement of the PSFA, and found that the CSP violated the PSFA because it “effectively result[ed] in an increased share of public funds to [DCSD] rather than to other state school districts.”

Following the hearing on the plaintiffs’ motion, the district court found that the CSP violated the PSFA and most of the state constitutional provisions at issue. Consequently, the district court granted the plaintiffs a permanent injunction, rather than the preliminary injunction originally sought by the plaintiffs, blocking implementation of the CSP. DCSD appealed the decision to the Colorado appellate court.

Ruling/Rationale:  The panel’s majority reversed the district court’s judgment, and remanded the case back to the district court for entry of judgment in the defendants’ favor. In so ruling, the appellate court concluded that the plaintiffs do not have standing to seek redress for the claimed violation by the CSP of the PSFA. The majority also concluded that the CSP does not violate any of the constitutional provisions raised by the plaintiffs.

For clarity, the appellate court divided the plaintiffs’ claims into three groups:

“(1) Claims alleging violations of statutory and constitutional provisions which concern state schools generally – the PFSA and Article IX, sections 2, 3, and 15 of the State Constitution;

“(2) Claims alleging violations of constitutional provisions which concern aid to or support of religion and religious organizations – Article II, Section 4, and Article IX, Sections 7 and 8; and

“(3) The claim alleging a violation of Article V, Section 34 of the State Constitution, which concerns appropriations generally and appropriations to religious organizations specifically.”

Claim 1 – Standing and Control Claims

Standing Under the PSFA. In Colorado, to establish standing, a plaintiff must show that (1) he incurred an injury-in-fact; and (2) the injury was to a legally protected interest. The panel focused its inquiry on the second requirement.

Looking to determine whether the PSFA gave a particular plaintiff a legally protected interest, the panel found that the PSFA did not expressly authorize a private cause of action to enforce its provisions. The panel then looked at three factors to determine whether a private cause of action is clearly implied: “(1) whether the plaintiffs are within the class of persons intended to be benefited by the [PSFA]; (2) whether the [General Assembly] intended to create, albeit implicitly, a private right of action; and (3) whether an implied private right of action would be consistent with the purposes of the [PSFA].” The panel found the district court erred in ruling that certain plaintiffs’ status, as students and parents of students, “confers a legal interest in the enforcement” of the PSFA. The panel stated that assuming those plaintiffs were within the class of persons intended to be benefited by the PSFA, the court’s examination of the other two factors does not support the existence of a private cause of action.

As to the other two factors, the panel said that there is nothing in the language of the PSFA remotely suggesting that private citizens or groups have a right to seek judicial enforcement of its provisions, and expressly committed such enforcement to the State Board. Also, other mechanisms are provided to ensure compliance with its funding scheme, none of which contemplate private enforcement. The panel stated that where, as here, a statute provides a means of enforcement, the designated remedy ordinarily excludes all others. The panel also found that recognizing a private right of action is not consistent with the PSFA’s purposes. In light of this, the panel was persuaded that allowing private citizens to act as substitute boards of education by challenging districts’ actions in court would interfere with the state agencies’ efforts to meet their statutory obligations, and introduce uncertainty into a process where little can be tolerated.

Consequently, the panel concluded that the plaintiffs do not have standing to bring a private cause of action seeking enforcement of the PSFA. The court made the point to state that even taxpayer status does not give plaintiffs standing in statutory cases, only in the context of alleged constitutional violations. Because the panel majority found the plaintiffs lacked standing to bring a claim under the PSFA, it did not address the merits of that claim.

Control of Schools Under State Constitutional Provisions. Article IX, Section 2 provides for “the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.” The plaintiffs contend that the district court erred in rejecting their claim when it found they had not presented “sufficient evidence that [the CSP] prevents students from otherwise obtaining a free education in Douglas County.” Specifically, the plaintiffs contend an error because (1) students participating in the CSP are not educated gratuitously (as the CSP may cover only part of a participating student’s private school tuition); (2) educational programs at the participating private schools vary; and (3) by retaining 25% of per-pupil revenue pursuant to the CSP, the DCSD receives money that otherwise would go to other school districts. In analyzing this claim, the panel first disposed of a procedural argument made by the defendants about the plaintiffs’ failure to cross-appeal an adverse ruling.

Returning to the merits of the plaintiffs’ contentions, the panel reviewed whether the CSP is constitutional, and concluded that because the legislative acts of local school boards are similar enough in nature to those of the state legislature, such acts do not merit different treatment, and, thus, the CSP was entitled to a presumption of constitutionality. As a result, the plaintiffs could only prevail on their Article IX, Section 2 claim if they proved the CSP was unconstitutional beyond a reasonable doubt.

However, the panel found that the plaintiffs failed to carry that burden, stating that the provision’s mandate to provide a thorough and uniform system of free public schools “plainly is not violated where a local school district decides to provide educational opportunities in addition to the free system the constitution requires.” The panel also pointed out that the mandate is not violated “merely because some students’ parents may choose to have their children forego the available opportunity to attend a school within the system the constitution requires.”

As to the other two aspects of the plaintiffs’ claim, i.e., variances in private educational programs and retention of per-pupil revenue, the panel questioned whether these contentions had been preserved for review. After a review of the parties’ motions, arguments at the hearing, and plaintiffs’ proposed findings, the panel found that these claims fail as well.

Use of Public School Funds. Regarding the Article IX, Section 3 claim, the panel concluded that this particular constitutional provision was not applicable to the money used to fund the CSP because once the state distributes money from that Public School Fund “to the counties and school districts, the money from the [Public School] fund belongs to the counties and school districts.” The panel found the district court erred in its assumption that once a district receives public school fund money from the state, all money the district then expends is subject to the restriction of this provision. The panel stated that this provision is “expressly a restriction on the use of only certain money – that of the public school fund.” “Perceiving no plain, palpable, and inevitable conflict between the CSP and Article IX, Section 3,” the panel concluded that the Plaintiffs did not meet their burden of establishing the unconstitutionality of the CSP under that provision.

Local Control. Article IX, Section 15 provides that the directors of the boards of education of local school districts “shall have control of instruction in the public schools of their respective districts.” The panel agreed with the district court that this provision “is aimed at ensuring that the state does not encroach upon the prerogative of local school districts to control the instruction in the public schools within their respective districts,” and does not relate to instruction in private schools, and thus, not to the schools participating in the CSP.

Claim 2 – Religion Claims

These claims involve religion generally and religious institutions, and the operation of four specific state constitutional provisions on them. The defendants urged the panel to hold that these provisions are substantively indistinguishable from the Establishment and Free Exercise Clauses of the U.S. Constitution’s First Amendment. And as such, the panel would have no choice but to reject the plaintiffs’ claims under the state constitution because the U.S. Supreme Court rejected a First Amendment challenge to a virtually identical school choice program in Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

However, the panel here determined that it would not consider the issue of whether the state constitution’s religion provisions were co-extensive with those of the federal constitution, because it did not need to do so to resolve the merits of plaintiffs’ claims. For the same reason, the panel did not address DCSD’s arguments about the constitutionality of the “Blaine provisions” (the religion provisions), and their alleged discriminatory purpose, because the panel concluded that the CSP does not violate any of the subject provisions. The panel then turned to the merits of the Religion claims.

Required Attendance or Support. Article II, Section 4 prohibits “required [ ] attend[ance] or support [of] any ministry or place of worship, religious sect or denomination against his consent.” The panel disagreed with the district court’s reasoning that the CSP violated this prohibition because affiliated schools would be receiving taxpayer money, thereby compelling them to support “indoctrination and religious education” at those schools.

Relying primarily on the reasoning in Americans United for Separation of Church and State Fund, Inc. v. State, 648 P.2d 1072 (Colo. 1982), in which the Colorado Supreme Court rejected a challenge to a program similar to the CSP under this “compelled support” provision, the panel here found that the CSP has a “check and balance system” allowing for periodic review of participating private schools’ records to assure compliance. Also, the panel determined that the district court’s review of the degree to which religious tenets and beliefs are included in participating private schools’ educational programs was no longer constitutionally permissible, given, as here, that the program at issue is “neutral toward religion generally and toward religion-affiliated schools specifically.” The panel said that “[t]o the extent students would attend religious services, they would do so as a result of parents’ voluntary choices. [This provision] clearly does not proscribe such choices.”

No Aid to Religious Organizations. Article IX, Section 7 prohibits any public funds to be appropriated to any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, etc., controlled by any church or sectarian denomination whatsoever. Here, the panel’s majority disagreed with the district court, and found that the CSP does not violate this constitutional provision. The majority noted that the CSP “is intended to benefit students and their parents, and any benefit to the participating schools is incidental, and that “[s]uch a remote and incidental benefit does not constitute … aid to the institution itself within the meaning” of this constitutional provision.

Religion in Public Schools. Article IX, Section 8 provides that “[n]o religious test or qualification shall ever be required of any person as a condition of admission into any public educational institution of the state … shall ever be required to attend or participate in any religious service whatsoever, [and n]o sectarian tenets or doctrines shall ever be taught in the public school ….” The panel disagreed with the district court’s analysis on the grounds that the district court “failed sufficiently to account for the fact that attendance at any of the participating private schools is not required by the CSP; such attendance is by parental choice, and participation in the CSP does not transform private schools into public schools.”

Claim 3 – Prohibited Appropriations

Lastly, the panel took up the Article V, Section 34 claim. This provision, which deals with the structure and powers of the General Assembly with appropriations, provides that “[n]o appropriations shall be made for … educational … purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association.” The panel concluded that this provision was not applicable because DCSD’s expenditure of funds under the CSP did not constitute an appropriation by the state legislature.

In conclusion, the panel found that the plaintiffs could not carry their burden to prove the unconstitutionality of the CSP beyond a reasonable doubt, or by any other potentially applicable standard. As such, the district court’s judgment could not stand.

The Dissenting Opinion

The Dissent focused its discussion solely on Article IX, Section 7. That article (which provides that the state will provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state) is more stringent than the religious clauses contained in the First Amendment. As a result, it was the Dissent’s opinion that the CSP failed to pass state constitutional muster. In the Dissent’s view, Section 7’s language “prohibits public school districts from channeling public money to private religious schools.” According to the Dissent, Article IX, Section 7:

[E]stablishes greater protection against the establishment of religion in Colorado’s public elementary, middle, and high schools than does the First Amendment’s Establishment Clause; [D]oes not offend the Establishment Clause, the First Amendment’s Free Exercise Clause, or the Fourteenth Amendment’s Equal Protection Clause; [B]ars transferring public funds to private religious elementary, middle, and high schools; and [R]enders the Choice Scholarship Program, created by Douglas County School District RE-1, unconstitutional.

Taxpayers for Public Education v. Douglas Cnty. Sch. Dist., Nos. 11CA1856 /11CA1857 (Colo. App. Ct. Feb. 28, 2013)

[Editor’s Note: Interestingly, on page 59 of the opinion, the majority took time to criticize some of the amicus curiae submitted to the Court. The panel majority noted that some of the amicus briefs raised contentions based on constitutional and statutory provisions that were not raised by the plaintiffs, which the majority noted “is not the proper role of amici curiae.” The majority also pointed to those amicus briefs that “urge us to affirm or reverse the district court’s judgment purely for policy reasons, without regard for the governing law.” The majority concluded that “[b]ecause making decisions based on such reasons is not part of the courts’ constitutional function, these arguments are improper.”

In August 2011, Legal Clips provided a summary of the district court’s decision, where the court issued a permanent injunction prohibiting DCSD from implementing Colorado’s Choice Scholarship Program. ]

Louisiana court reverses itself, holding teacher tenure provision in sweeping education law unconstitutional

The Advocate reports that Louisiana District Judge R. Michael Caldwell who upheld the tenure part of a sweeping education law in December 2012, has reversed himself after hearing new arguments from both sides. The judge has now declared the tenure provision unconstitutional.

The ruling was a victory for the Louisiana Federation of Teachers (LFT). The LFT filed the lawsuit and said that the 2012 measure would essentially end teacher tenure in Louisiana. The decision also could throw a wrench into sweeping new teacher evaluations, which are under way in public schools for the first time.

Governor Jindal, who made the overhaul a key legislative priority last year as a way to improve teacher quality, said Caldwell’s ruling will be appealed. “We are obviously very confident we are going to prevail at the Supreme Court,” he said.

The measure, known as Act 1, won approval in the state legislature last year. But the LFT filed a lawsuit in June 2012, arguing that the measure illegally contained multiple subjects that required separate legislative debates. Caldwell ruled in December 2012 that the teacher tenure part of the law was legal, but struck down several other provisions.  However, both sides sought a new hearing.

Caldwell said he earlier misinterpreted details of how the measure was described in the legislation, including the title.  He said that, after a second review, he concluded the law was unconstitutional by including multiple subjects in a single bill — the key LFT argument against the legislation.  “It is my feeling that Act 1 is unconstitutional in its entirety,” Caldwell said.

Under the law, teachers who are rated as “ineffective” would lose tenure and could face dismissal proceedings.  New teachers would have to be rated as “highly effective” for five out of six years to earn tenure.

The new rules are also linked to new teacher evaluations — they stem from a 2010 law — that links half of a teacher’s annual review to the growth of student performance.  Whether those changes remain intact likely depends on how the state Supreme Court rules.

During the roughly 30 minutes of oral arguments, LFT attorney Larry Samuel said the law clearly violates Louisiana’s constitutional requirement that statutes “shall be confined to one subject.”  Samuel said the wide range of topics in the law “make a mockery” of the one-subject rule.  Jimmy Faircloth, an attorney for the state,  said the court should use an “expansive” view of issues allowed in a bill, which he said are connected by the push to overhaul teacher practices.  “There are a lot of moving parts,” he said.

The governor said Caldwell’s ruling dealt with the form of the law, not the substance of the measure.  He repeatedly blamed the “forces of the status quo” for battling the statute, a reference to the LFT and other critics.

The state’s appeal is set for March 19 in the Louisiana Supreme Court.

Source: The Advocate, 3/5/13, By Will Sentell

[Editor’s Note: In June 2012, Legal Clips summarized an article in The Times-Picayune, which reported that Louisiana’s largest teachers association, some of its local chapters, and four individual public school teachers had filed two state lawsuits challenging the education overhaul Governor Jindal signed in April 2012.

Also in June 2012, Legal Clips summarized an article in Education Week, which reported that while other states have sought to reform teacher job protections, such as tenure, seniority, and due process, through legislation, opponents in California had resorted to litigation instead to eliminate such protections.  At least three lawsuits had taken aim in the past two years at district and state rules governing teacher evaluation, seniority, or due process. The Legal Clips summary outlines the three cases that were in play in California at the time.]

Federal court gives Georgia governor okay to replace district board members he removed

The Atlanta Journal-Constitution reports that a federal court has refused to prevent the replacement of six DeKalb County school board members who lost their seats over a threatened loss of accreditation, and now Governor Nathan Deal must find appointees to mend the torn district. U.S. District Court Judge Richard Story’s ruling allows the governor to name replacements while the lawsuit for control over Georgia’s third largest school system continues.

Having suspended two-thirds of the DeKalb County School Board, Deal is now facing pressure from parents, politicians, and the public to quickly name successors. With only three members remaining on the school board, the district is all but paralyzed and major financial and personnel decisions are delayed.

“The harm from the loss of accreditation to the school district and the resulting harm to the students in the district are profound,” said Judge Story in his decision. “To permit the board members to continue to serve while their individual claims are resolved risks substantial consequences for the school district and its students. The court finds that this risk of harm far outweighs the risks to the board members.”

The lawsuit was filed in the name of former school board chairman Eugene Walker, who vowed to fight on. “I still think I’m on the right side of history,” said Walker, who was one of six board members Deal suspended last week. Walker said he’ll be exploring his legal “alternatives.” Besides the court actions, he and the other five suspended members can petition Deal for their jobs back. That process takes two to five months.

The governor said the court’s decision “allows us to take the next steps toward protecting the futures of DeKalb’s students and maintaining the school system’s accreditation.” The focus, Deal said, will now shift to a five-member panel that will suggest replacement board members. “Time is of the essence because we cannot have this cloud hang over the county or the state,” Deal said.

The judge’s decision does not end the litigation. Judge Story indicated he was dubious about the likelihood that DeKalb would win under their U.S. Constitution argument, but he signaled that the Georgia Supreme Court could soon consider questions in the case. He asked the two sides to agree on which questions, and gave them 10 days to submit them. “The case as a whole is not going to dry up and blow away at this point, but it will be able to be studied under a less urgent situation,” said Ronald Carlson, an emeritus law professor at the University of Georgia.

DeKalb has argued that a 2011 state law authorizing suspension and removal of school board members in districts on accreditation probation is unconstitutional. After years of nudging, the Southern Association of Colleges and Schools (SACS) finally got DeKalb’s attention in December 2012 placing the system on probation and threatening to strip accreditation altogether. That led the Georgia Board of Education to act under the new law by recommending suspension of the six board members who were in office last year – three others were newly elected – and resulted in Deal’s decision last week.

Judge Story wrote that he would like the state’s top court to address “unsettled” issues. He wrote that the public has an interest in its elected officials being allowed to serve, but said there is “an even greater” public interest at stake in DeKalb: “The interest of the public in a healthy public school system outweighs the interests of board members in serving in their positions.”

Deal is proceeding under the assumption that an appointed school board can save DeKalb’s faltering accreditation. DeKalb’s accrediting agency said the decision allows the school system to get a board with a focus on students. In lowering DeKalb’s accreditation status, SACS alleged school board mismanagement and languishing student achievement.

Source:  The Atlanta Journal-Constitution, 3/5/13, By Greg Bluestein and Ty Tagami

[Editor’s Note: In February 2013, Legal Clips summarized an article in The Atlanta Journal-Constitution, which reported that  Governor Deal had announced his removal of all six incumbent members of the DeKalb County School Board by Executive Order. The link to the Executive Order is contained in the Editor’s Note to that summary.

This is not the first time an outside force has impacted the tenure of board members. In October 2012, Legal Clips summarized an article in the Quad City Times, which reported that Cedar County (Iowa) District Judge Mark Smith had ordered members of the Durant School Board to serve 30 days in the Cedar County Jail for violating a court order in how the board was to restore Monica Rouse to her job as Durant High School principal. The school board had voted to fire Rouse in March 2010, claiming various counts of wrongdoing. Rouse was principal for 11 years before the board fired her. She appealed her termination to the Iowa Supreme Court and won, returning to work in April 2012.]

ED investigating claims of racially discriminatory student discipline in Seattle district

The Seattle Times reports that the U.S. Department of Education (ED) is investigating whether Seattle Public Schools discriminates against African-American students by disciplining them “more frequently and more harshly than similarly situated white students,” said ED spokesman Jim Bradshaw. In the Seattle district, African-American students are suspended from school more than three times as often as white students from elementary schools to high schools. More than one-fourth of black middle schoolers have received short-term suspensions every year since 1996. Native Americans are disciplined more often than Asian Americans and Pacific Islanders.

District Superintendent José Banda acknowledged problems with student discipline – and said he intends to do something about them. Banda pledged cooperation with the investigation and said he expects ED will find disproportionate disciplining of black students. “I think we have a serious problem here,” Banda said. “We do. We acknowledge that. We acknowledge the fact that the data is clear that there is a disproportionate number of students of color being suspended and expelled.”

Seattle Public Schools has set up two advisory committees – one called Positive Climate and Discipline, the other Equity and Race – that are studying disproportionality in discipline. Banda said he did not know how long ED’s compliance review will take, and Bradshaw declined to provide additional information.

About two years ago, Seattle’s School Board asked to see statistics on expulsions. “Those numbers showed us we had a growing problem,” said Board President Kay Smith-Blum. “They showed a disproportionate amount of students being disciplined at the suspension or expulsion level in our minority groups.” Banda and several board members said discipline policies should be clear and consistent and should, in most cases, provide a way for students to continue their studies even if they are removed from their regular classrooms.

Several board members and a district spokeswoman said they were not aware of ED’s investigation, which began last year. “I just became aware of that myself,” Banda said. The district’s new attorney, Modessa Jacobs, recently told other district officials that ED was requesting district data as part of its review.

Source:  The Seattle Times, 3/5/13, By Keith Ervin and Maureen O’Hagan

[Editor’s Note: In October 2012, Legal Clips summarized an article in the San Francisco Chronicle, which reported that in the face of a civil rights investigation for disciplining black students more harshly than their white peers, the school board for the Oakland Unified School District voted to accept five years of federal monitoring.

In August 2012, Legal Clips summarized an article in the Courier-Post, which reported that the Camden Board of Education in New Jersey had agreed to pay $500,000 to settle a suit brought by seven Hispanic elementary school students, who were made to eat lunch on the floor as punishment for spilling a jug of water. The February 2008 incident stirred claims of bias and underscored tensions between the city’s black and Hispanic communities.]

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