February 2008 Archives

A federal appeals court says an Illinois family offered "absolutely no evidence to support their theory" that they faced retaliation for the parents raising concerns about their daughter's treatment by the high school softball coach.

In fact, the panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, ordered the parents to explain why they shouldn't be held responsible for the attorneys' fees of the defendants, which included the softball coach and principal of Morton Community High School, and the superintendent and school board members of Morton Community Unit School District 709 in suburban Chicago.

The parents alleged, among other things, that the coach had been favoring the team's other pitcher over their daughter and doctoring statistics to that effect. After meeting with school officials to voice their complaints, the parents allege that some school employees stopped talking to them, the father was asked not to videotape the girl's softball games, and the school and softball boosters may have conspired against them so they missed the year-end softball banquet.

"We cannot infer that these separate incidents—which easily could have happened to numerous softball families in high schools across America last season—amount to circumstantial evidence of retaliation," the court said in its unanimous Feb. 29 decision in Springer v. Durflinger.

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A public college in California has fired a math teacher after six weeks on the job because she altered her mandatory state Oath of Allegiance form, the San Francisco Chronicle is reporting.

California State University-East Bay took the action against Marianne Kearney-Brown, a Quaker graduate student who was teaching remedial math on the campus, because she inserted the word "nonviolently" in front of the oath's language calling on her to swear or affirm that she would "support and defend" the state and U.S. constitutions "against all enemies, foreign and domestic," the newspaper reports.

The oath is required of all public employees in California, including teachers and other K-12 school employees. The newspaper says Kearney-Brown had similarly modified the state oath twice before over the last 15 years when she took jobs with two different school districts. In those instances, the districts accepted her modifications without incident, the newspaper says.

But the attorney for California State-East Bay tells the Chronicle that modifying the oath "is very clearly not permissible."

The case is a reminder that some states still employ such loyalty oaths, which had their heyday during the Cold War.

The U.S. Supreme Court decided a spate of cases involving loyalty oaths from the 1950's through the early 1970's, including several involving teachers.

In 1961, in Cramp v. Board of Public Instruction, the justices struck down a Florida law that required teachers and other public employees to swear that they had never lent their "aid, support, advice, counsel or influence to the Communist Party."

In 1964, the court struck down a Washington state loyalty oath for teachers as "unduly vague" in the case of Baggett v. Bullitt.

But in 1972, in Cole v. Richardson , the court upheld a Massachusetts loyalty oath for public employees that addressed future versus past conduct and spoke in general terms about opposing the overthrow of the government.

I am no expert on the history of such oaths in American education. Perhaps readers can provide some more perspectives.

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Over at the Edjurist Accord, Justin Bathon has been the first to tip me off to a potential scandal involving school lawyers in New York state.

As the blog notes, Newsday has reported that one lawyer was listed as a full-time employee of five different school districts at the same time, allegedly accruing extensive state pension benefits when he in fact worked only part time for the districts as a private attorney. The lawyer, Lawrence Reich, has denied through his attorneys doing anything wrong or illegal and has suggested that the practice was widespread, Newsday reports.

New York State Attorney General Andrew Cuomo has requested information from all school districts on Long Island about their payments to school attorneys and law firms.

"Since the first story broke, a federal grand jury in Central Islip has opened an investigation and federal prosecutors, FBI and IRS agents have questioned potential witnesses and issued subpoenas," Newsday reported in a Feb 24 story.

The paper has been writing about the situation almost daily. Its first story, from Feb. 14, is here. A fairly comprehensive narrative is here.

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A federal appeals court today refused to allow the Missouri Charter Public School Association to intervene in the long-running desegregation lawsuit involving the Kansas City, Mo., school district.

"The MCPSA sought to intervene nearly thirty years after the filing of suit, three years after final judgment was entered in the suit, four months after the motion for enforcement of judgments was filed, and eight days after the District Court entered judgment on the motion for enforcement of judgments," said the opinion for a unanimous three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis.

"Intervention at such a late stage would have unduly delayed enforcement of the remedy to which the [Kansas City school district] was entitled," the court added.

The Kansas City deseg case began in 1977, well before charter schools came into being as a popular form of independent public school. The Kansas City school district was declared unitary in 2003, but the federal district judge overseeing the case partially reopened it in 2006. That is when the charter schools group sought to intervene "to present evidence crucial to a just determination of the issues involved."

The Kansas City, Mo., case was the subject of three U.S. Supreme Court decisions, all captioned Missouri v. Jenkins, in 1989 (dealing largely with attorneys' fees), in 1990 (addressing several issues), and 1995 (in which the justices scaled back an extensive district court remedy).

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A federal appeals court has sided against a Maine parent's request to be reimbursed by a school district for several years worth of room, board, and travel expenses stemming from her son's enrollment in three out-of-state schools under a special education plan.

A three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, held in a Feb. 27 opinion that the school district "was under no affirmative obligation to bring to a head the issue of whether or not it should be responsible for non-tuition expenses."

At stake in School Union No. 37 v. Ms. C was some $49,000 in room and board expenses and $3,200 in travel costs over a five-year period. The ruling suggests such expenses for an out-of-state special education placement would normally be the school district's responsibility under the Individuals with Disabilities Education Act.

But in this case, the parent's delay in seeking reimbursement was unreasonable and cost the school district the opportunity to "clarify both its role and [the student's] special education needs under federal law," the 1st Circuit said.

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My colleague David Hoff reports here in his NCLB: Act II blog that a coalition of civil rights groups has filed a friend-of-the-court brief urging a federal appeals court to reconsider its ruling that revived a major challenge to the No Child Left Behind Act as an unfunded federal mandate.

The groups are joining the side of U.S. Secretary of Education Margaret Spellings, who earlier this month asked the full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, to reconsider a ruling by a three-judge panel of the court in Pontiac School District v. Spellings. The court ruled that the states were not on clear notice of their potential financial obligations when they agreed to accept federal funding under the No Child Left Behind law.

See my last blog item on the case here, and last Education Week story here.

The brief was officially filed by the Connecticut Conference of the NAACP and three students from that state, but it also has the backing of the NAACP's national office, the Lawyers' Committee for Civil Rights, and Washington civil rights lawyer William L. Taylor.

Those groups have intervened to help defend the NCLB law in a federal challenge brought by the state of Connecticut, which Ed Week reported on here.

The civil rights groups' 6th Circuit brief (available for download here) argues that that panel's decision "invites states that elect to receive federal funding [under NCLB] to use 'ambiguous' statutory language as a means of reneging on their obligations, at the expense of low-income and minority children."

The plaintiffs in the case, which are several school districts and state teachers' union affiliates backed by the National Education Association, had not been asked to respond to Secretary Spellings' request for rehearing as of last week.

It is up to the discretion of the 6th Circuit court whether the full court will give "en banc" reconsideration to the closely watched NCLB case. And, strictly speaking, it is up to that court's discretion as to whether it will accept friend-of-the-court briefs from the civil rights groups or anyone else.

A decision from the full court on whether it will grant reconsidertion is probably still at least a few weeks away.

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The U.S. Supreme Court today declined to hear appeals in two cases involving school districts.

In the first, a Georgia father was seeking the justices' review of a case in which he alleges school officials ignored repeated complaints and warnings that a 5th grade teacher was sexually abusing young female students.

The U.S. Court of Appeals for the 11th Circuit, in Atlanta, ruled last year that a school principal and assistant principal were immune from the suit, and that the White County, Ga., school district was not liable under Title IX of the Education Amendments of 1972 because the evidence did not support claims that supervisors had actual notice that the teacher was molesting students.

The justices declined without comment to hear the father's appeal in Dale v. White County School District (Case No. 07-962). The school district's brief in opposition is here.

In the second case, the high court declined to take up the question of whether the federal statute widely known as Section 1983, which derives from the Civil Rights Act of 1871, provides a cause of action for enforcing rights under the Individuals with Disabilities Education Act.

In a decision last September, a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled that even though Section 1983 ordinarily provides a cause of action for enforcing rights created by other federal laws, the IDEA provides its own comprehensive enforcement scheme. The 9th Circuit panel acknowledged that its decision was in conflict with rulings on that issue by two other federal circuits.

The justices declined without comment to hear the appeal of the Washington state mother of a child with autism in Blanchard v. Morton School District (No. 07-825). The school district's brief in opposition is here.

Thanks to SCOTUSBlog for posting the appeals and the opposition briefs in these two cases.

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A federal appeals court has ruled that Arizona must comply with a lower-court ruling that says the state must do more to adequately fund instruction for English-language learners.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, issued its unanimous 91-page ruling late on Feb. 22 in Flores v. State of Arizona.

The Associated Press reports on the decision here, and my Education Week colleague Mary Ann Zehr discusses the ruling in her Learning the Language blog here.

Much of the ruling deals with the lengthy history of the lawsuit by families over the adequacy of Arizona's support for English instruction. But one particular section of the 9th Circuit panel's ruling caught my attention.

The state argued that the No Child Left Behind Act's provisions on English-language learners altered its legal obligations and should be enough to satisfy the Equal Educational Opportunity Act of 1974, the federal statute under which the Arizona families brought their lawsuit in 1992.

The EEOA says states may not deny equal education opportunity to an individual by "the failure of an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs."

The appeals court wasn't buying it.

The state's arguments "would effectively repeal the EEOA by replacing its equality-based framework with the gradual remedial framework of NCLB," the appeals court said. The EEOA is a civil rights statute with an individual right to sue to enforce its guarantees, and nothing in the NCLB expressly repealed the earlier law, the court said.

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In a significant decision in the security-conscious, post-Columbine era, a federal appeals court ruled today that video surveillance cameras installed in a middle school's locker rooms violate the Fourth Amendment privacy rights of students.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled unanimously that students have a heightened expectation of privacy in areas of a school designated for them to change clothes. In its opinion in Brannum v. Overton County School Board, the court said:

Given the universal understanding among middle school age children in this country that a school locker room is a place of heightened privacy, we believe placing cameras in such a way so as to view the children dressing and undressing in a locker room is incongruent to any demonstrated necessity, and wholly disproportionate to the claimed policy goal of assuring increased school security, especially when there is no history of any threat to security in the locker rooms.

The ruling came in a lawsuit filed on behalf of 24 middle school students against the Overton County, Tenn., school system and various school officials. In 2002, to boost security, school officials installed a video surveillance system throughout Livingston Middle School. An assistant principal and a representative of the security firm decided to place cameras in the boys' and girls' locker rooms, according to the suit. Images from the cameras were stored and were accessible to anyone with the proper password.

The locker room cameras came to light when a visiting girls' basketball team noticed such a device in the room in which they were changing and complained. According to the suit, the district's director of schools said the stored images contained "nothing more than images of a few bras and panties," but the locker room cameras were soon removed.

In the students' lawsuit, a federal district court rejected a request by school officials to throw out the suit on the grounds that the officials had qualified immunity.

On appeal, the 6th Circuit panel held that the principal and vice principal were not immune from the suit because it was clearly established under the law that the students had a right to be free of video surveillance in the locker rooms. As the court put it:

[A] a person of ordinary common sense, to say nothing of professional school administrators, would know without need for specific instruction from a federal court, that teenagers have an inherent personal dignity, a sense of decency and self-respect, and a sensitivity about their bodily privacy that are at the core of their personal liberty and that are grossly offended by their being surreptitiously videotaped while changing their clothes in a school locker room.

But the director of schools and members of the school board were immune, the appeals court said, because they were not aware that cameras had been placed in the locker rooms.

The case now goes back to the federal district court for further proceedings.

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The U.S. Supreme Court today declined to hear the appeal of a California school district in a controversy over a high school student's provocative newspaper editorial on immigration.

The essay by Andrew D. Smith, who was a senior at Novato High School in 2001-02, was in the school's newspaper, The Buzz. The essay, which appeared Nov. 13, 2001, was titled "Immigration" and included several provocative assertions about Hispanics and immigrants, including:

-- "I'll even bet that if I took a stroll through the Canal district in San Rafael that I would find a lot of people that would answer a question of mine with 'que?', meaning that the don't speak English and don't know what the heck I'm talking about."

-- "If they can't legally work, they have to make money illegal way [sic]. This might include drug dealing, robbery, or even welfare. Others prefer to work with manual labor while being paid under the table tax free."

Some Latino parents in the community complained to school administrators, according to court papers. The principal of Novato High and the superintendent of the Novato Unified School District sent a letter to parents, stating that the article represented the beliefs of one student, expressing "our deepest regrets for the hurt and anger" the article caused, and stating that it should not have been printed in The Buzz because it violated school board policies on maintaining a respectful learning environment.

Smith and his parents sued school officials and the district in state courts, alleging that the district's speech policies infringed his free speech rights under the federal and state constitutions.

A state trial court ruled that the "Immigration" editorial was not protected speech because it contained "insulting derogatory and disrespectful speech directed at various ethnic groups."

But a three-judge panel of the California Court of Appeal reversed and ruled unanimously that the district's response to the editorial infringed on Smith's free-speech rights and violated a California state law that provides high school students greater free speech and press rights than they have under the First Amendment of the U.S. Constitution.

"Althougth 'Immigration' communicates Smith's viewpoint in a disrespectful and unsophisticated manner, it contains no direct provocation or racial epithets," the state appellate court said in its opinion last year. "We cannot allow the reactions to 'Immigration' by the reading audience (that is, the 'heckler's veto') to silence Smith's communication of unpopular views. 'Immigration' is protected speech."

The California Supreme Court declined to review the case, leading to the Novato district's appeal to the U.S. Supreme Court. The district said the courts must strike a balance between students' free expression rights and the 14th Amendment property rights of other students "to a safe, productive, and positive school environment."

Without comment, the justices declined to hear the appeal in Novato Unified School District v. Smith (Case No. 07-783).

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A federal appeals court has ordered a lower court to reconsider its issuance of a preliminary injunction that barred the New York state education department from enforcing an emergency regulation against the use of "aversive interventions" for children with disabilities.

The aversive therapies at the school at the center of the case include "skin shocks, 'contingent' food programs, and physical restraints," says the opinion by a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City.

The Judge Rotenberg Educational Center is in Canton, Mass., but it has served hundreds of students from New York state who have been referred there as part of their individualized education programs under the federal Individuals with Disabilities Education Act, court papers say.

Parents consent to the aversive therapies, and each student's treatment is under the review of a medical authorities, the court said.

The New York State Education Department issued a report in 2006 that was critical of the school, and it issued its emergency regulation barring their use, evidently with respect to students from New York state.

But parents who did not want their children's treatment interrupted sued, and a federal district court issued the injunction against the state's regulation.

In its unanimous Feb. 14 opinion in Alleyne v. New York State Education Department, the 2nd Circuit panel said the district judge should have more fully explored which said was likely to prevail on the merits of the lawsuit before issuing the temporary injunction.

And while the appeals court's decision was, in the short run. favorable to the state education department, the court said "the record provides substantial support for a finding of harm to the student plaintiffs if aversive treatments are suspended, particularly the numerous affadavits submitted by the parents that attest to the positive effects of aversives adn the adverse consequences to their chidlren of suspending those treatments."

The appeals court apparently wants the district judge to be more clear in justifying the reasons for the injunction barring the state's emergency regulation.

The New York Times reported on the school, and the controversy over shock therapy, in December.

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Public school officials may restrict speech disparaging homosexuality, a federal district judge has ruled.

The Feb. 12 decision is the latest in a long-running case stemming from an incident in which a California high school student wore a T-shirt with hand-lettered messages that said, “Homosexuality is shameful. Romans 1:21,” and “Be ashamed."

"In this court’s view, a school’s interest in protecting homosexual students from harassment is a legitimate pedagogical concern that allows a school to restrict speech expressing damaging statements about sexual orientation and limiting students to expressing their views in a positive manner," said the ruling by U.S. District Judge John A. Houston in Harper v. Poway Unified School District.

"There is no doubt in this court’s mind that the phrase “Homosexuality is shameful” is disparaging of, and emotionally and psychologically damaging to, homosexual students and students in the midst of developing their sexual orientation in a 9th through 12th grade, public school setting," the judge added.

The case has had a long and somewhat tortuous procedural history, which I won't detail here. The U.S. Supreme Court last year ordered a federal appeals court to toss out the case as moot because the student who wore the T-shirt, Tyler Chase Harper, had long since graduated from high school. I wrote about that development in Education Week here.

Harper's sister, Kelsie K. Harper, has since been substituted as the student in the case. The Harpers are represented by the Alliance Defense Fund, which put out this alert about the latest decision (and provided the above link to Judge Houston's opinion).

The San Diego Union-Tribune reports on the case here.

Judge Houston rejected free speech arguments made on behalf of the Harpers, and he said the Supreme Court's decision last year in Morse v. Frederick "affirms that school officials have a duty to protect students, as young as 14 and 15 years of age, from degrading acts or expressions that promote injury to the student’s physical, emotional or psychological well-being and development which, in turn, adversely impacts the school’s mission to educate them."

The Morse decision involved a student who was disciplined for displaying a "Bong Hits 4 Jesus" banner at his Alaska high school. See Education Week's coverage here.

The Harper case has been closely watched by school administrators, free speech advocates, conservative legal groups, and others, and one thing seems certain: Yesterday's ruling is not the last word.

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A federal appeals court has upheld a district court's finding that the Madison County, Miss., school district had achieved unitary status and thus could be released from decades of court supervision for its desegregation efforts.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, ruled unanimously on Feb. 11 in Anderson v. School Board of Madison County that the 11,000-student school system had "eliminated the vestiges of its former de jure segregated school system to the extent practicable."

In 2005, at the time the district court was considering the Madison County district's request for unitary status, the district's racial breakdown for students was 58 percent white and 38 percent African-American (and evidently 4 percent other or undisclosed).

"We are ... cognizant of the important interest in returning schools to the control of local authorities at the earliest practicable date in order to restore their true accountability to the citizenry and to the political process,” the appeals court said, citing the U.S. Supreme Court's desegregation rulings in Freeman v. Pitts and Board of Education of Oklahoma City v. Dowell.

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A federal appeals court today rejected a lawsuit by two Illinois school districts and four families that said the No Child Left Behind Act was in conflict with the main federal special education law.

A three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled unanimously in Board of Education of Ottawa Township High School District 140 v. Spellings that the "plaintiffs' claim is too weak to justify continued litigation."

The Ottawa high school district, along with Ottawa Elementary School District 141 and the parents of four students in special education, had sued in 2005, claiming that NCLB's testing requirements conflict with the federal Individuals with Disabilities Education Act.

As Education Week reported at the time, the suit said that the IDEA’s requirement that each special education student have an individualized education plan is contrary to the requirement under NCLB that special education students count as one subgroup whose test results help determine whether a school makes adequate yearly progress, the key measure for holding schools accountable under the law.

A U.S. District Court judge in Chicago dismissed the suit, ruling that the school districts and students did not have standing because they had suffered no concrete injuries under NCLB.

The 7th Circuit panel reversed the judge on that issue, ruling that the school districts, at least, had standing to sue Secretary of Education Margaret Spellings because NCLB requires the districts to "pay for more tests than they would administer if left to their own devices."

That part of the ruling may be significant for other districts that seek to challenge NCLB, and the court took note of the major ruling by its neighboring court, the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, that in January revived a major lawsuit challenging NCLB as an unfunded mandate. (See my latest blog post on that case here.)

But the 7th Circuit panel quickly moved on to its conclusion that, on the merits, the Illinois suit could not go forward.

The court said that even if NCLB, signed into law in 2002, was in conflict with the IDEA, which was first enacted under a different name in 1970, the newer law would take precedence.

"Plaintiffs' view that an earlier law can repeal a later one by implication has time traveling in the wrong direction," the court said.

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U.S. Supreme Court Justice Stephen G. Breyer told a conference in Hawaii that he and his fellow justices struggle so much with affirmative action cases because the nation holds two deeply ingrained but opposing views on the topic, according to this report in the Honolulu Star-Bulletin.

I noted in this post the other day that Justice Breyer planned to attend the symposium at the University of Hawaii law school on the Kamehameha Schools' policy of giving admissions preferences to Native Hawaiians.

The Star-Bulletin notes that Justice Breyer "made it clear that he would not talk about the specifics of the Kamehameha case." The school last year settled a lawsuit brought by a white student who had challenged the admissions policy, even though a federal appeals court had upheld it.

Instead, Justice Breyer spoke generally about the competing rationales for affirmative action and race-based policies in education, the paper said.

Meanwhile, The Honolulu Advertiser reports today that the Kamehameha Schools settled the lawsuit with the white student, identified in court papers only as John Doe, for $7 million.

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I've heard about many states where school districts have sued their state over school finance formulas and the like. I had never heard of school districts suing their state supreme court, until now.

The Idaho Statesman reports today that U.S. District Judge B. Lynn Winmill of Boise has allowed a lawsuit filed by school districts against their state's highest court to proceed to trial. The districts sued the state high court after it ruled in 2005 that Idaho's school finance system was unconstitutional, but then allegedly refused to require the state to come up with a remedy.

The federal judge rejected arguments on behalf of the Idaho Supreme Court that he lacked jurisdiction to order a state high court to do anything. But, the newspaper reports, the judge appeared to be trying to nudge the state court to avoid a trial by saying that a clarifying order "may be all that is needed to facilitate a quick and inexpensive resolution of this case."

Unfortunately, I cannot find Judge Winmill's opinion online.

Education Week has reported frequently on the long-running school finance lawsuit in Idaho, including this story from 2006.

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The federal government has filed its request for reconsideration of a federal appeals court ruling that revived a major challenge to the No Child Left Behind Act as an unfunded federal mandate.

Lawyers filed papers on behalf of Secretary of Education Margaret Spellings asking the full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, to reconsider last month's decision by a three-judge panel of the court in Pontiac School District v. Spellings.

The secretary had announced late last week that such a request was coming.

The 6th Circuit court panel ruled 2-1 on Jan. 7 that the states were not on clear notice of their potential financial obligations when they agreed to accept federal funding under the No Child Left Behind law. The majority ruled that state and local officials could “reasonably read” the law’s unfunded-mandate provision to conclude the federal government would pay for all costs associated with complying with the law.

In its request for review of that ruling, the Bush administration says "the ramifications of the decision are immediate and irreparable, and they extend for the indefinite future."

The court papers cite an Education Week story in which Robert H. Chanin, the general counsel of the National Education Association, argued after the panel ruling that school districts would be on solid legal ground in refusing to use their own funds to comply with NCLB requirements not covered by federal funds.

"The risk of noncompliance is manifest," the government's papers say. "Because school districts have considerable discretion in determining how to spend federal funds, the panel decision allows them to redirect their resources and then claim that any noncompliance with the NCLB was caused by a lack of federal funds."

The 3.2 million member-NEA is behind the lawsuit challenging the NCLB law. The suit was filed in 2005 in U.S. District Court in Detroit on behalf of some of its state affiliates and nine school districts in Michigan, Texas, and Vermont.

The plaintiffs in the case will have a chance to respond to the Bush administration's filing, and then it will be up to the discretion of the full 6th Circuit court as to whether the case will be re-examined.

Posted by Mark Walsh at 12:21 PM | Permalink | Leave a comment | Recommend

Two upcoming events in two distinctly different areas of the country will involve discussions on race and education.

On Thursday, Feb. 7, U.S. Supreme Court Justice Stephen G. Breyer will participate in a symposium in Hawaii that examines a legal challenge to the Kamehameha Schools' policy of giving admissions preferences to Native Hawaiians, the Honolulu Star-Bulletin reports.

The private school, which enrolls 6,550 students on three campuses in Hawaii, last year settled a lawsuit brought on behalf of a white student who was denied admission to the school. The Kamehameha Schools had won a ruling in the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that upheld its policy. The court agreed that the schools' definition of Native Hawaiians was a racial classification, but the majority said the preferential admissions policy was designed to counteract the educational deficits of Native Hawaiian children.

Despite winning in the appeals court, the Kamehameha Schools settled the lawsuit in the face of a possible review of its policy by the Supreme Court. I reported on the settlement in Education Week here.

The symposium at the University of Hawaii's law school is part of a whole week of activity in which Justice Breyer will be a "jurist-in-residence" at the school. Other participants in the session on the Kamehameha Schools' admissions policy will include Kathleen Sullivan, the former dean of the Stanford Law School, who defended the schools' policy in court, and Eric Grant, a Sacramento, Calif., lawyer who represented the white student who challenged the policy.

It will be interesting to learn whether Justice Breyer really gets involved in the nitty gritty of the discussion over that case. Even though the challenge was settled, the school's policy conceivably could come before the Supreme Court in a future case.

Sadly, I don't think I can get my editors to dispatch me to Honolulu for the symposium, so I will be on the lookout for news reports after the fact.

However, I hope to be able to attend another conference examining race and education. On Feb. 22 in Washington, the Catholic University of America's law school is planning a tribute to retired Justice Sandra Day O'Connor titled, "Reflecting on Justice O'Connor's jurisprudence relating to race and education."

The conference will look at Justice O'Connor's role in such cases as Wygant v. Jackson Board of Education , which addressed race-conscious teacher layoff decisions, and the University of Michigan admissions cases, Grutter v. Bollinger and Gratz v. Bollinger, in which Justice O'Connor held the pivotal vote in upholding affirmative action generally but striking down some aspects of the university's race-conscious policies.

The conference brocure is here. Thanks to SCOTUSBlog for the tip.

Posted by Mark Walsh at 12:27 PM | Permalink | Leave a comment | Recommend

U.S. Secretary of Education Margaret Spellings announced today that the Bush administration will appeal a court ruling that revived a lawsuit which contends the No Child Left Behind Act is an unfunded federal mandate.

Spellings said that U.S. Solicitor General Paul D. Clement, who is the top appellate lawyer in the Department of Justice, has authorized an appeal asking that the full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, rehear the case of Pontiac School District v. Spellings.

A panel of the 6th Circuit court ruled 2-1 on Jan. 7 that the states were not on clear notice of their potential financial obligations when they agreed to accept federal funding under the No Child Left Behind law. The majority ruled that state and local officials could “reasonably read” the law’s unfunded-mandate provision to conclude the federal government would pay for all costs associated with complying with the law.

I wrote about the ruling in Education Week here, and my colleague David Hoff and I wrote here about a letter Spellings wrote to chief state school officers that was critical of the ruling.

In her statement today, Spellings said the administration's appeal to the full 6th Circuit "will be filed shortly."

"As I mentioned a few weeks ago, I strongly disagree with the ruling, and believe that if the decision were to stand, it could undermine efforts to improve the education of our nation’s children, in particular those students most in need," Spellings said in the statement. "NCLB is not an unfunded mandate. It is a voluntary compact between the states and the federal government, which asks that in exchange for federal tax dollars, results be demonstrated. This investment is netting solid results and creating an opportunity for every child in America to have access to a quality education."

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