April 2009 Archives

The U.S. Supreme Court today took up a major case involving the Voting Rights Act of 1965, with the justices debating whether Congress had the right in 2006 to extend a key section that subjects certain states and counties to greater scrutiny for discrimination in voting procedures.

The case has implications for school districts in any of the states covered by Section 5 of the voting-rights law. Under that section, the states and local governments must get federal approval, or "preclearance," of any change in voting procedure. For affected school districts, that typically involves changes in district boundaries for school board elections.

The challenge to the Voting Rights Act extension was brought by a small utility district in Texas.

"We are in a different day," said the district's lawyer, Gregory S. Coleman, from the mid-1960s, when Congress first adopted the preclearance procedure to combat Southern hostility to the enfranchisement of African-Americans.

His arguments in Northwest Austin Municipal Utility District No. 1 v. Holder (Case No. 08-322) went over well with some of the court's conservatives, but not its more liberal members, including Justice David H. Souter.

Citing the more than 600 cases in which the U.S. Department of Justice has raised objections to a voting change submitted by a covered jurisdiction over a recent 20-year period, among other evidence of continued racial disparities in voting, Souter said: "Things ... may be better. But to say that they have radically changed to the point that this becomes an unconstitutional Section 5 exercise within Congress's judgment just seems to me to deny the empirical reality."

Later, Chief Justice John G. Roberts Jr. questioned Deputy U.S. Solicitor General Neal K. Katyal, who was defending the 25-year extension, about why some states continue to face special procedures while certain other states never covered by Section 5 have troublesome records on participating rates by minority voters.

"Obviously, no one doubts the history here," the chief justice said. "But at what point does that history ... stop justifying action with respect to some jurisdictions but not with respect to others that show greater disparities?"

And Roberts noted that Congress initially enacted Section 5 for five years, then extended it several times. "At some point it begins to look like the idea is that this is going to go on forever," he said.

Justice Anthony M. Kennedy, who many believe will tip the balance on this case, expressed concerns that the law's disparate approach treats the "sovereignty of Georgia" (a state covered by Section 5) as less than "the sovereign dignity of Ohio" (which isn't covered).

"This is a great disparity in treatment, and the government of the United
States is saying that our states must be treated differently," Justice Kennedy told Katyal. "And you have a very substantial burden if
you're going to make that case."

The election of Barack Obama as the nation's first African-American president wasn't mentioned in court, but Justice Antonin Scalia asked another lawyer defending the extension, Debo P. Adegbile of the NAACP Legal Defense and Educational Fund, about racial progress in one covered state.

Virginina, Scalia noted, was the first state to elect a black governor and has an elected black chief justice.

The election of African-Americans to particular high offices "has an important salutory effect and it tells us about the possibilities of our
Constitution," Adegbile said, "but it doesn't mean that voters [who] are trying to vote in a school board election in Louisiana are going to have an easy time of it, where racially polarized voting is as extreme as it is and when election officials manipulate the rules of the game to try and disadvantage the minority community."

Posted by Mark Walsh at 4:30 PM | Permalink | No Comments | TrackBacks (0)

A special education case in the U.S. Supreme Court today showed that some justices are concerned about parents getting a fair shake in the system, while others worry that school districts and taxpayers must shoulder the burden for expensive private schools for some students.

"I think we've got to assume that Congress has some concern for the parents who correctly say, this [individualized education plan] is no good, it just can't be done in the school system, and the kid needs a special school," Justice David H. Souter said to the lawyer representing an Oregon school district.

But Chief Justice John G. Roberts Jr. later asked the lawyer for the parents in a dispute with the school district why they shouldn't be required to at least try a public school plan for their child before seeking reimbursement for private school tuition.

"What's wrong with 10 days?" the chief justice said to David B. Salmons, in reference to a suggested minimum time for families to try out an IEP before pulling their children from the public schools. "It's a big expense you are asking the school district to incur, that will take away funds from other programs. And all they are saying is, give it a try for 10 days, and if it doesn't work out, then you can go."

Salmons said that may not work because IEPs are often developed in the spring for the next school year, and parents need to decide by summer where to place their children.

The issue in Forest Grove School District v. T.A. (Case No. 08-305) is is whether parents in a special education dispute with a school district may be reimbursed for “unilaterally” placing their child in a private school when that child has never received special education services from the district. (My blog preview is here.)

The justice believed to be holding the cards in the case was hard to read. Justice Anthony M. Kennedy had recused himself in a case raising the same issue two years ago, and the participating justices deadlocked 4-4, which upheld a lower court's ruling without setting a precedent.

At one point, Justice Kennedy pressed the district's lawyer, Gary S. Feinerman, on his argument that the federal Individuals with Disabilities Education Act requires children to have received special education services from a public school system before they could be eligible for private school tuition reimbursement.

"The problem with your position is that it seems in a way formalistic and in some cases to encourage intransigence," Kennedy said.

Later, Justice Kennedy suggested he was looking for a middle ground in which parents could win reimbursement when their children had not received public school services, but only if they met a higher burden of proof.

"Suppose we thought it were sensible to add ... the further rule that the school district is presumed to have made the correct diagnosis and, if there is a plan in that kind of case, that the plan was adequate, and that the parent would have to show by clear and convincing evidence that this is not so, rather than just inventing it and pulling it out of the sky," Kennedy said in a dialogue with Eric D. Miller, an assistant to the U.S. solicitor general who was arguing as a friend-of-the-court on the parents' side.

Miller said that might be difficult to reconcile with the IDEA's language calling for an easier "preponderance of the evidence" standard.

"But ... it would be within this court's discretion, I think, to prescribe principles to guide the exercise of the district courts' equitable discretion," the U.S. lawyer said.

Justice Ruth Bader Ginsburg joined Justice Souter in aggressively questioning the school district's lawyer, while Justice Antonin Scalia was sympathetic, along with Chief Justice Roberts, to the district.

"Of course, the parents here didn't run off to a private school only after
the school district had found that their child didn't require any special education, did they?" Scalia said to Feinerman, the district's lawyer. "They put him in a private school without even consulting the schools. ... Saying, by the way, we can get some money. How much much money are you talking about imposing on the school district here?"

"Well, it's -- the tuition is $5,200 a month," the district's lawyer said.

"A month?" Justice Scalia said, somewhat in mock surprise, since the figures were provided in the briefs.

Later, Scalia pressed the Obama administration's lawyer about cases where the parents had never even enrolled their children in public school, yet sought reimbursement for private school tuition. Those facts were much closer to the case on which the court deadlocked in 2007, New York City Board of Education v. Tom F.

Miller said there would be no "categorical bar" to reimbursement in that situation, but "a district court confronted with those facts would most likely conclude that the parents had not genuinely sought a free appropriate public education and hadn't appropriately cooperated with the school district."

Justice Kennedy asked Miller about a hypothetical situation in which parents pull their child from the public schools, and then have a choice of appropriate private schools, one charging $5,200 a month, and the other charging "considerably less."

"Is the hearing examiner entitled to reimburse only for the lower amount, or is the parent entitled to send the child to the more expensive school?" Kennedy said.

Miller assured him that under the court's special education cases, hearing officers and courts may examine the reasonableness of the expense and can deny all or part of it.

A decision in the case in expected by late June. (The oral argument transcript is here.)

Posted by Mark Walsh at 2:57 PM | Permalink | 4 Comments | TrackBacks (0)

The U.S. Supreme Court today declined to hear the appeal of a Kentucky family over a school's handling of a middle school student who gave a prescription Adderall pill to one of her classmates.

The refusal to take up S.E. v. Grant County Board of Education (Case No. 08-927) is not a ruling on the merits, but it is interesting because the justices often hold on to appeals that raise the same or similar issues to cases they are deciding. Just last week, the court heard arguments in Safford Unified School District v. Redding, about whether the Fourth Amendment bars a strip-search of a middle school student by school personnel looking for contraband prescription drugs.

In the Kentucky case, a 7th grade student identified in court papers as A.E. went to the school nurse on the last day of school in 2006 to get take her attention deficit hyperactivity disorder medication. Because it was the last day, the nurse insisted that the student take the prescription bottle, which had four Adderall pills remaining, with her.

Later in the day, another student asked A.E. for one of the pills, and after initially refusing, A.E. relented and gave her friend a pill. This eventually got back to school officials, who called A.E. into the office the next fall and made her write out an account of what happened. The deputy principal turned the statement over to a sheriff's deputy, as the district contends was required under state law. The girl ended up in juvenile court, charged with trafficking controlled substances within 1,000 feet of school property. She was required to complete a diversion program.

The student and her parents sued the Grant County school district and various officials, alleging that their actions violated the girl's rights under the Fourth and Fifth Amendments of the U.S. Constitution because officials essentialy coerced a confession out of her.

In an opinion last October, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, held that the girl's rights were not violated. The court held that the student was not seized in violation of the Fourth Amendment when she was forced to come to the school office. And the assistant principal was not acting at the behest of law enforcement when he required A.E. to write her statement, the court said.

In their Supreme Court appeal, the family said the case raised important questions about the rights of students when they are summoned to school offices for questioning and when statements extracted by school administrators are turned over to law enforcement officials without the usual Fifth Amendment protections from self-incrimination.

But in a brief urging the justices not to take up the case, the school district said there was no conflict among the federal circuit courts in this area of the law.

"The great weight of authority does not require school officials who question students to give those students a Miranda warning prior to questioning them about a violation of a school rule that might constitute a violation of a civil law," the district's brief says. "School officials are not law enforcement officers."

Posted by Mark Walsh at 2:24 PM | Permalink | No Comments | TrackBacks (0)

With a busy week for education in the Supreme Court, I haven't had time to take note of these rulings:

Arizona Private School Tax Credit: A federal appeals court revived a challenge to a state program that provides an income tax credit for contributions to private school scholarships, including at religious schools.

A panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled 3-0 in Winn v. Arizona Christian School Organization that if the facts as alleged in a challenge are true, the tax credit program "“carries with it the imprimatur of government endorsement” of religion in violation of the First Amendment's clause barring government establishment of religion.

The court ordered a federal district court to reinstate the suit.

IDEA Private School Reimbursement: With the Supreme Court set to take up a special education case about parental placements of their children in private schools (see my preview here), a lower federal court has ruled for parents in such a case.

A three judge-panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, ruled in Houston Independent School District v. V.P. that parents of a student with a disability deserved reimbursement for a second year of private school tuition, in addition to the first year authorized by a district court under the Individuals with Disabilities Education Act.

Sagging Pants: Not a school case, per se, but this issue has been watched with interest by school lawyers: A state trial judge in Florida has struck down a town's ordinance bagging saggy pants that expose the wearer's underwear.

According to this story in the Palm Beach Post, the judge held that the ordinance by the town of Riviera Beach violates could not be justified under the 14th Amendment. (The decision does not appear to be available on the court's Web site.)

Posted by Mark Walsh at 4:24 PM | Permalink | No Comments | TrackBacks (0)

The case before the U.S. Supreme Court today involved employment tests for firefighters, but race-conscious actions by schools were not very far from the minds of some of the justices.

In some ways, the oral arguments in Ricci v. DeStefano (Case No. 07-1428) present an opportunity for the justices to pick up their conflict over the constitutionality of race-based government action. The last battle was won by the court's conservatives in 2007 in Parents Involved in Community Schools v. Seattle School District, which struck down voluntary integration plans in two school districts and sharply curtailed the ways schools could use race in assigning students to schools.

Justice Stephen G. Breyer, who wrote the lead dissent in the school diversity cases from Seattle and Jefferson County, Ky., today asks the lawyer for a group of white firefighters in New Haven, Conn.—who are alleging reverse racial discrimination—to compare or contrast his case with cases about school diversity.

"Suppose a school district deliberately, to obtain greater racial diversities in the schools, draws district boundaries in a particular way among neighborhoods, or plans a construction program," Breyer said. "Then suppose having done that, ... a group comes to the school district and says you can achieve greater diversity if you redraw the boundary. ... Is that, in your view, different from your case?"

The lawyer, Gregory S. Coleman, immediately recognized that the question was based on Justice Anthony M. Kennedy's concurrence in the Seattle/Jefferson County cases, which had said there are still legal ways for schools to take race into account. Most legal scholars accept Justice Kennedy's opinion as the controlling one, a view Justice Breyer sought to reinforce today by calling it just that.

Coleman's reply to Breyer was this: "I think the court is not fully in agreement on these questions, but the court has at least an opinion suggest[ing] that those types of examples really are more of ... the race-conscious type determination, and they don't violate this principle of individual dignity."

"You're not taking individuals one by one who have earned promotions," Coleman added, and taking those promotions away.

To briefly go into the facts of the New Haven case, the city gave an exam to its firefighters to determine who was eligible for promotion to lieutenant and captain. Under the city's civil-service rules, no black or Hispanic firefighters scored high enough to be eligible for a lieutenant position, and no black test-takers scored high enough to make the list for captain.

The city's civil-service board declined to certify the results, based on its view that the results had a disparate impact on black and Hispanic candidates that would be in violation of Title VII of the Civil Rights Act of 1964. This led to a lawsuit from white (and one white Hispanic) firefighters who say they were denied promotions because of race in violation of both Title VII and the 14th Amendment's equal-protection clause.

The issue of employment testing by government agencies itself has relevance for public education, although no school groups chimed in with any friend-of-the-court briefs in this case. (Just about every other civil rights and business group did.)

A few briefs cited a case known as Gulino v. New York City Board of Education, in which a group of black and Latino teachers in New York City sued New York state and the New York City school system in 1996. The plaintiffs alleged that two tests used by the state had a racially disparate impact on African-American and Latino test-takers, and that those in the city system who failed to pass the test were demoted to substitute-teacher status, for which they were received less pay and reduced benefits.

In a 2006 decision, the U.S. Court of Appeals for the 2nd Circuit, revived the teachers' suit and ordered a federal district court to reconsider whether the New York City school system was potentially liable for the disparate impact of the state's teacher test under Title VII. The Supreme Court last year declined to step into the case.

Of course, that case involved employment testing at the application stage. Public education tends not to have the sort of civil service testing at the promotions stage frequently seen in municipal police and fire departments.

Getting back to the New Haven case as a continuation of the court's fight in the school cases, Chief Justice John G. Roberts Jr., the author of the main opinion in the Parents Involved case and an opponent of race-based government action, had a question for Deputy U.S. Solicitor General Edwin M. Kneedler: "Does the government consider promotion of diversity by itself a compelling state interest in the employment context as opposed to the school context?"

"We think it is probably a compelling state interest, but it is not one that can be advanced by racial classifications," said Kneedler, who was arguing largely on the side of the city of New Haven.

Citing the school diversity cases and other Supreme Court race cases, the chief justice also pressed the lawyer representing New Haven about the where to draw the line between permissible race-conscious action and illegal discrimination based on race.

One factor in this case, replied the city's lawyer, Christopher J. Meade, was that "this race consciousness ... is mandated by federal law," referring to Title VII's requirements that employers guard against tests with a racially disparate impact.

Roberts wasn't too satisfied with that answer.

When Coleman returned to the lectern for rebuttal, Justice Breyer wasn't finished posing some education hypotheticals at him.

"In Texas, ... they take the top 10 percent of all the high school graduates and put them in the university," Breyer said, referring to the state's plan in response to earlier legal battles over race-conscious admissions. "Now, suppose they just decided, you know what we want to do? The top 5 percent. We want to see how that works. And, of course, then there are people who in fact would have gotten into the university—and perhaps we can imagine a majority of the majority race—and now they don't. Can Texas do that?"

"Well, you've chosen a very controversial subject," said Coleman, who lives in Austin, Texas, and is a former solicitor general for the Lone Star State. He was perhaps alluding to the fact that the University of Texas's admissions policies are under a fresh legal challenge and the state legislature is considering revisions to the Top 10 Percent plan.

As long as the Texas plan does not make admissions decisions based on racial classifications, it is "likely" permissible, Coleman told Breyer.

It seems the next big race case is always just around the corner for the Supreme Court.

Posted by Mark Walsh at 4:27 PM | Permalink | 1 Comment | TrackBacks (0)

It didn't take long for today's U.S. Supreme Court arguments in a case about the strip-search of a middle school student by school officials looking for drugs to delve into extreme hypotheticals.

Chief Justice John G. Roberts Jr. wanted to know whether upholding the search at issue in Safford Unifed School District v. Redding (Case No. 08-479) would lead to school officials conducting the type of searches faced by "prison inmates," as he delicately put it.

After some back and forth establishing that they were talking about body-cavity searches, Matthew W. Wright, the lawyer representing the Safford, Ariz., school district, said he was not seeking a rule that would go that far.

Body-cavity searches in schools are "something the court can say is clearly off-limits," Wright said, adding later that such searches are not something school officials are trained to conduct.

But Wright very much defended the right of school officials to conduct the type of strip-search at issue with Savanna Redding.

The young woman was a 13-year-old student in 2003 when an assistant principal, relying on a student tip that Redding may have prescription-strength ibuprofen pills that she was distributing to other students, searched her backpack. When that turned up no pills, the assistant principal asked two female staff members to conduct a search of Redding's undergarments. Redding says in court papers she had to shake her bra and panties to reveal whether she had hidden contraband in them. No pills were found in the search. (See previews in Education Week here and in the blog here. UPDATE: The argument transcript is here.)

Wright told the court that school officials were seeking a "bright-line rule" that once they have a reasonable suspicion that a student may possess drugs (the basic school search standard from the Supreme Court's 1985 decision in New Jersey v. T.L.O.), then a strip-search would be permissible.

School administrators "have to be able to act immediately and flexibly" to such reasonable suspicions about student drug use, Wright said.

The surprise today was that in addition to the court's conservatives, some more moderate to liberal justices seemed receptive to Wright's arguments.

Justice Stephen G. Breyer, a moderate who often expresses sympathies for educators, even questioned whether Savanna Redding's treatment amounted to a strip-search, since she never had to completely disrobe.

"I'm trying to work out why this is a major thing, to say 'Strip down to your underclothes,' which children do when they change for gym, they do fairly frequently ..." Justice Breyer said to the Adam B. Wolf, the lawyer representing Redding and her mother, who challenged the search as unreasonable under the Fourth Amendment.

Wolf earlier had said, "The Fourth Amendment does not countenance [school officials] rummaging on or around a 13-year-old student's body."

Justice Ruth Bader Ginsburg appeared the most troubled by the school officials' conduct. She asked Wright about why after conducting the search, school officials made Redding sit in a chair outside the assistant principal's office for over two hours.

"What was the reason for putting her in that humiliating position?" Ginsburg wondered. Wright said school officials were still carrying out their investigation of the drug rumors.

A U.S. Department of Justice lawyer sought to explain the middle ground it outlined in a friend-of-the-court brief. David O'Neil, an assistant to the U.S. solicitor general, told the justices that "intrusive body searches" should only be permitted at school when officials have information that the student is hiding contraband under his or her clothes.

"We believe that without some particularized suspicion or some specific indication that this, the location, was a likely one to contain the drugs, that this search was excessively intrusive," O'Neil said.

But the department said the officials involved in Redding's search should have been granted qualified immunity from personal liability, which the assistant principal was denied in a 6-5 vote of the panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco. That court voted 8-3 in last year's decision that the search of Redding violated the Fourth Amendment.

But both O'Neil and Wolf, the student's lawyer, seemed to have trouble in persuading the justices for a broad rule against all strip-searches in schools.

Justice David H. Souter, a usually reliable liberal vote on the court, parried with Wolf at length, wondering if he were in the shoes of a school principal, whether it would be reasonable to conduct a strip-search that might embarrass a student in exchange for preventing a potentially dangerous or lethal problem with drugs.

"In the hypo I gave, the risk of the mistake may wll be violent sickness or death," Justice Souter said. "And the ... reasonable analysis in the principal's mind is, 'better embarrassment than violent sickness or death.'"

Posted by Mark Walsh at 2:23 PM | Permalink | 4 Comments | TrackBacks (0)

The U.S. Supreme Court appeared sharply divided today over a case that asks whether the state of Arizona is doing enough to educate English-language learners to satisfy a federal civil rights law.

Kenneth W. Starr, the lawyer representing Republican state legislative leaders who are seeking relief from a federal court order that effectively is forcing the state to spend more on ELL programs, told the justices that English learners "are, in fact, making progress" under the program funded by the legislature.

This drew a sharp response from Justice Stephen G. Breyer, who cited detailed test results showing that English learners in the Nogales, Ariz., school district, where the class action began in 1992, still lagged their peers around the state.

"You are right," Breyer said to Starr during the oral arguments in Horne v. Flores (Case No. 08-289). "They have made progress, but they aren't quite home yet."

"But not home yet, your honor, is in fact the key question. What is home?" replied Starr, a former U.S. solicitor general and independent counsel who is now the dean of Pepperdine University law school and a regular advocate before the high court.

Starr argued on behalf of the state lawmakers, as well as Arizona's superintendent of public instruction, Tom Horne, that a federal district judge went too far in ordering the state to spend more money on ELL programs to satisfy a 1974 federal law known as the Equal Educational Opportunities Act.

"Under the EEOA, all that is required is ... good faith efforts towards compliance," Starr said.

But Justice David H. Souter reminded Starr that the lower courts had found two problems with Arizona's ELL program as adopted under a 2006 state law. One was that the law effectively supplanted certain federal funds at the school district level, instead of supplementing them. And the other was that the law cut off the majority of state ELL money for any student who remained classified as an English-language learner for more than two years.

"There was no denial that some good faith efforts had been made," Justice Souter said. "The finding was that there were two deficiencies."

Justice Ruth Bader Ginsburg also was skeptical of Starr's arguments. She noted that for several years Arizona did not appeal any of the federal district judge's orders in the class action.

"What wasn't appealed was that Arizona was required by federal law to determine the cost and adequately fund a statewide system of English-acquisition programming," she told Starr.

But when Sri Srinivasan, the lawyer representing the immigrant families who brought the class action, took to the lectern, some of the court's more conservative justices had sharp questions for him.

"Why shouldn't the courts decide that what constitutes a good-faith effort [under the EEOA] is pretty much what Congress thought was necessary in the No Child Left Behind Act, and if you comply with that, you're doing okay?" Justice Scalia said, echoing a point made by the legislative leaders and Horne that federal approval of the state's ELL program under NCLB should be sufficient to satisfy the civil-rights law.

Chief Justice John G. Roberts Jr. questioned whether federal judges could order a state to increase funding for ELL programs even if faced budgetary constraints.

May a district court say, he asked, "You've got to spend this much money on this program, and I don't care what it means for jails, roads, anything else, when there are profound changes in economic circumstances of the sort everyone's experiencing lately?"

"The state would have to make the argument that funding constraints are in existence in a way that doesn't allow us to put together an optimal program, and so here's the program we want to put in place," Srinivasan said.

Justice Anthony M. Kennedy appeared to search for a middle ground, perhaps under which the Supreme Court might narrow the remedy to require the state to spend more on ELL programs in Nogales.

One area the justices touched on, but never let dominate the arguments, is the intense political infighting the case has sparked in Arizona.

For several years, then Gov. Janet Napolitano, a Democrat who is now U.S. secretary of homeland security, joined Democratic Attorney General Terry Goddard in supporting the families' efforts to get more ELL funding.

But new Gov. Janice K. Brewer, a Republican, last month sought to have Goddard file a brief on the side of the legislative leaders and the state superintendent. The attorney general refused.

"I fear politics may be at play," Gov. Brewer said in a letter last month criticizing his refusal to accept her "direction."

Starr alluded to the infighting, saying there was "a division of opinion within the state."

"There is now a very different perspective," Starr said.

"Doesn't the attorney general speak for the state?" Justice Souter said.

"No, your honor, not in Arizona," Starr said. "The attorney general speaks for the state when the governor directs him or her to do that."

But the justices seemed little interested in refereeing that fight when they have a complicated enough case before them.

(My preview of the case appeared in the blog here, and Education Week's Mary Ann Zehr reported here on her visit to Nogales.)

Posted by Mark Walsh at 3:54 PM | Permalink | 1 Comment | TrackBacks (0)

When the U.S. Supreme Court hears arguments in an important special education case on April 28, all eyes will be on Justice Anthony M. Kennedy.

The question in Forest Grove School District v. T.A. (Case No. 08-305) is whether parents in a special education dispute with a school district may be reimbursed for “unilaterally” placing their child in a private school when that child has never received special education services from the district.

The court took up the same issue in 2007, in Board of Education of New York City v. Tom F., and deadlocked 4-4. Justice Kennedy had recused himself in the case for undisclosed reasons.

Justice Kennedy is participating in the new case. So if the other justices hold to their votes in the New York City case, the outcome will be up to Kennedy. (Note that the court doesn't reveal how each justices voted in such circumstances, so we don't know which four voted for the school district and which four for the family.)

The new case is from the 6,000-student Forest Grove district in Oregon. The district is appealing a ruling in favor of parents who sent their son to a private school for children with behavioral and emotional problems some two years after a district evaluation had determined that the boy was ineligible for special education.

The district eventually determined that the student had attention deficit hyperactivity disorder, but that it wasn’t affecting his educational progress. The parents appealed to a hearing officer, who ruled they should be reimbursed for enrolling their son in a residential program with tuition of more than $5,000 a month. A federal district court reversed the hearing officer, but a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held in a ruling last year that the parents were entitled to reimbursement.

The IDEA says tuition reimbursements for such unilateral private school placements are available only to students “who previously received special education and related services.” The appeals court held that the language, added in the 1997 reauthorization of the IDEA, did not “create a categorical bar to recovery of private school reimbursement for all other students.”

In its merits brief before the Supreme Court, the Forest Grove school district says the 9th Circuit got that fundamental issue wrong.

"As amended in 1997, IDEA unambiguously imposes a categorical bar on tuition reimbursement for parents who unilaterally place a child in private school, when the child did not previously receive special education services from the public school district," Forest Grove's brief says.

But lawyers for T.A. and his parents say in their brief that the 1997 amendment to the IDEA did not alter the law's "central entitlement of a 'free appropriate public education' to all children with disabilities."

The family is backed by the Obama administration, which filed a friend-of-the-court brief stating that, "When a child with a disability has been denied a free appropriate public education, IDEA authorizes an award of private-school tuition reimbursement regardless of whether the child previously received public special education."

The U.S. brief says the school district's view would produce perverse results, including that tuition reimbursement could "never be available to parents if a school district wrongly refuses to identify their child as having a covered disability."

The case has attracted a fair number of other friend-of-the-court briefs on both sides.

One difference between the Forest Grove case and the New York City case bears mentioning. In the New York City case, the student was the son of a prominent, wealthy media executive and had never even attended New York City public schools before his father sought reimbursement from the public system for an expensive private school placement. This raised questions about whether some wealthy parents were gaming the system in the nation's largest school district, although the parent involved denied any such thing.

In the Forest Grove case, the student was enrolled in the public school system for most of his educational career. Only after a dispute over whether the boy was eligible for special education did his parents enroll him in private school and seek public reimbursement. The less extreme facts could make it that much easier for the court to rule for the parents, in my view.

When the New York City case was argued in October 2007, I came away from the session thinking that the court would probably rule for the school system. I said as much in this Education Week story at the time, although I couched my prediction in reserved language, such as that the justices "appeared sympathetic" to the district's arguments.

As it turns out, of course, I misread the arguments by at least one vote, and the court deadlocked 4-4. We'll see on April 28 whether the court, particularly Justice Kennedy, is easy to read on the outcome of this case.

Posted by Mark Walsh at 1:46 PM | Permalink | 1 Comment | TrackBacks (0)

This is the second in a series of previews of the three education cases being argued in the U.S. Supreme Court this month. The first post in the series, about the Horne v. Flores case, appeared on Monday.

A strip-search of a middle school student by school officials looking for prescription drugs sets the stage for one of the most important U.S. Supreme Court rulings in a quarter century on student rights and public school responsibilities.

The justices will hear arguments on Tuesday, April 21, in Safford Unified School District v. Redding (Case No. 08-479).

Education Week's Erik W. Robelen has written this extensive preview story about the case. So I will add these observations.

The justices will examine a ruling last year by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that the search of an 8th grader by school authorities looking for prescription-strength ibuprofen pills violated the student's rights under the Fourth Amendment.

A en banc panel of the 9th Circuit court ruled 8-3 that officials at an Arizona middle school "acted contrary to all reason and common sense as they trampled over" the privacy interests of Savana Redding. By a separate vote of 6-5, the panel held that the assistant principal who ordered the strip-search was not entitled to qualified immunity from personal liability in the student's lawsuit.

The key Supreme Court precedent on physical searches of students in public schools is New Jersey v. T.L.O. In that 1985 decision, the court upheld the search of a student’s purse for contraband and found that school searches are justified by a “reasonable suspicion” that laws or school rules were violated. Under the ruling, schools must show that a search was reasonable both at its inception and in its scope.

In its merits brief, the Safford Unified School District argues that the 9th Circuit court misapplied T.L.O., and that the strip-search of Savana Redding was justified at its inception because school officials had "reasonable grounds for suspecting that she was violating" the districts policies against drug possession.

"The 9th Circuit has set a dangerous precedent in substituting its own judgment for that of the school officials," the district's brief says.

Not surprisingly, the school district is joined by a friend-of-the-court brief filed by the National School Boards Association and the American Association of School Administrators. They call on the justices to clarify the standard for searches of students under T.L.O. "that gives direction to educators on how properly to apply the justified-at-inception and the reasonable-in-scope prongs established in that case."

The lawyers for Savana Redding say in their brief that she "ended up naked and humiliated in front of her school officials," for a search that was prompted by a questionable tip and which turned up no drugs.

"One unreliable accusation that Savana possessed ibuprofen at some unspecified time in the past and in an unknown location did not provide sufficient reason to observe Savana’s genital area and breasts," the brief says.

The National Education Association, the National Association of School Psychologists, and a handful of other groups filed a brief on the student's side that stresses the detrimental effects of strip-searches of students.

"For adolescent youth, clinical evaluations of the [youth] victims of strip searches indicate that they can result in serious emotional damage, including the development of, or increase in, oppositional behavior,” such as dropping out, the brief says.

Also mostly on the student's side is the U.S. solicitor general's office, which filed this brief arguing that strip-searches of students are impermissible "unless [school] officials reasonably suspect not only that the student possesses contraband but also that it is hidden in a place that such a search will reveal."

The search of Redding did not meet that standard, the U.S. brief says.

The solicitor general's office parts company with the student's lawyers, though, on the issue of qualified immunity for the assistant principal who oversaw the strip-search.

"The illegality of the search was not clearly established," the U.S. brief says.

The 9th Circuit had said it should have been "self-evident" to the official that a strip-search would violate the Fourth Amendment. The Reddings' lawyers defend that ruling in the Supreme Court, saying in their brief that "any school official should have known not to strip search a child unless, at the very least, there is suspicion that the child currently possesses the sought-after object beneath her undergarments."

The school district argues, of course, that the official deserves immunity. "School officials have a difficult enough job protecting students and maintaining order without the daunting threat of liability for damages solely because their legal sophistication does not allow them to predict the future course of appellate jurisprudence," the district's brief says.

Speaking of predictions, there's no way to predict how the justices will rule in this case, at least until the oral arguments perhaps yield some clues. But one should keep in mind that in the nearly 25 years since New Jersey v. T.L.O. was decided, the Supreme Court has twice upheld programs of random drug testing of certain classes of public school students, in Vernonia School District v. Acton and in Board of Education of Independent School District No. 92 v. Earls.

And in a student free speech case in which the message was perceived as promoting drug use (the "Bong Hits 4 Jesus" banner decision in Morse v. Frederick), the court's majority upheld the regulation of the pro-drug message.

Writing for the majority in Morse, Chief Justice John G. Roberts Jr. said that the court's decisions on students' Fourth Amendment rights "recognize that deterring drug use by schoolchildren is an important—indeed, perhaps compelling interest."

In Morse, the justices also overturned a lower-court's rejection of qualified immunity for the school official who disciplined the student speaker. That lower court was the 9th Circuit.

Posted by Mark Walsh at 10:12 AM | Permalink | 3 Comments | TrackBacks (0)

This is the first in a series of previews in the School Law Blog on the three education cases being argued in the U.S. Supreme Court this month.

A quirky case over whether the state of Arizona’s spending on English-language learners satisfies an obscure federal civil rights law goes before the U.S. Supreme Court next week.

One surprise of Horne v. Flores (Case No. 08-289) is that the appeal has attracted far more friend-of-the-court briefs than the other two education cases the justices will hear this month, one involving the constitutionality of a school’s strip-search of a student and the other involving special education.

Besides briefs from education groups and public-interest legal organizations, dueling groups of education policy scholars are using the case to advance their arguments about the merits of spending more money on schools.

Another twist in the case involves a tangle of political alliances in Arizona. The leaders of the state legislature and the elected state superintendent are on one side of the case, while the state itself, the state attorney general, and the state board of education are on the other side. As governor until early this year, Janet Napolitano, a Democrat who is now the U.S. secretary of homeland security, also was on the state's side in favor of increased spending on ELL programs.

Her Republican successor has sought in recent weeks to align the state with the legislative leaders and the state superintendent.

Gov. Jan Brewer last month asked state Attorney General Terry Goddard, a Democrat, to file a brief supporting a 2006 state law on funding programs for English-language learners, as the Associated Press reported here. But Goddard has refused, and the brief for the state—the one filed by the attorney general—sides with the plaintiffs in a 17-year old lawsuit that sought more funding for ELL programs.

Education Week’s Mary Ann Zehr recently traveled to Nogales, Ariz., where the class action at the heart of the Supreme Court case originated in 1992, and she filed this report.

A federal district judge in Arizona ruled in 2000 that the state had violated the "appropriate action" language of the federal Equal Educational Opportunities Act of 1974 by failing to provide adequate funding for its ELL instructional methods. Under the federal civil rights law, each state must "take appropriate action to overcome language barriers that impede equal participation by its students in instructional programs."

U.S. District Judge Raner C. Collins of Tucson ruled in 2007 that a 2006 law passed by the state legislature that increased per-pupil ELL funding and made other changes to the state's program did not go far enough. The state law increased a per-pupil extra amount for English-language learners to $444 from $365, and authorized school districts to seek additional funding for such students. But the law effectively supplanted certain federal funds, and it cut off the majority of state ELL money for any student who remained classified as an English-language learner for more than two years.

That led Judge Collins to conclude that the state's ELL funding system remained irrational and in violation of the EEOA. In upholding the judge's ruling last year, the U.S. Court of Appeals for the 9th Circuit court said in an opinion that "despite considerable efforts, and some improvements in outcomes, Arizona, as a state, does not appear to have turned the corner on ELL education performance."

In their separate appeals, the state legislative leaders and Arizona Superintendent of Public Instruction Thomas C. Horne argue that the federal No Child Left Behind Act, with its extensive requirements for the states on English-language learners, should trump the 1974 law.

“When a state complies with its NCLB obligations, it is, by definition, taking ‘appropriate action’ for the purposes of the EEOA,” says the merits brief for the speaker of the Arizona House and the president of the state Senate.

The state of Arizona, at least as represented by the state attorney general, argues in its brief that the current state ELL law, because it requires an offset of federal funds to districts, runs the risk of exposing Arizona to a reduction of federal funds under the NCLB. And the state disagrees that the NCLB law sets the standard for compliance with the Equal Educational Opportunities Act.

On that point, and others, the state has the federal government on its side. The U.S. solicitor general’s office filed a brief which says that the federal district court was within its powers in requiring state lawmakers to develop and appropriately fund a statewide program for ELL education.

Among the more than a dozen friend-of-the-court briefs filed on both sides of the case, the most heated are from the dueling groups of scholars.

On the side of the legislative leaders and the state superintendent is a group of right-leaning education professors and researchers who frame the Arizona case as part of the debate over whether more accountability or greater resources are the answer to improving education.

“There is scant evidence that past judicial actions concerning school finance have had any beneficial effect on student performance,” says the brief, which is signed by such scholars as Eric A. Hanushek of Stanford University, Frederick M. Hess of the American Enterprise Institute, Paul T. Hill of the University of Washington, and 18 others.

The brief’s assertion that it was the “consensus view of education-policy experts” that increased funding is not the answer prompted a retort from 23 more left-leaning researchers, who filed a brief on the side of the state.

“A significant and growing body of empirical research … recognizes that, although funding alone will not guarantee students’ success, inadequate funding ensures their failure,” says the brief signed by such scholars as Gary Orfield of the University of California, Los Angeles, and Michael A. Rebell and Amy Stuart Wells of Columbia University, among others.

With a complicated history, a political tug-of-war hanging over it, and prominent scholars imbuing the case with larger issues, Horne v. Flores should make for a very interesting hour of argument on April 20.

Posted by Mark Walsh at 5:30 PM | Permalink | 2 Comments | TrackBacks (0)

A Nevada school district has settled a lawsuit brought on behalf of a former student who alleged that school officials failed to adequately respond to harassment she suffered because she openly displayed her Muslim faith.

Under the settlement, former student Jana Elhifny will receive $350,000 from the Washoe County school district, which will be paid by the district's insurance carrier. Her lawsuit alleged she was harassed by fellow students for wearing a traditional head scarf in recognition of her Islamic faith and Egyptian heritage. The district also settled a related suit brought by a friend of Elhifny's who says she faced harassment for supporting the Muslim student. That suit was settled for $50,000.

Elhifny was represented by the American Civil Liberties Union of Nevada and the O'Melveny & Myers law firm, which put out this press release about the settlement that was also agreed to by the school district's law firm.

A lawyer representing the district, which admitted no wrongdoing in the settlement, says in the release that Elhifny was was offered many education opportunities in response to the harassment in 2003, but she rejected them before withdrawing from district schools.

The Reno-Gazette Journal reports here and the Associated Press reports here.

Posted by Mark Walsh at 3:21 PM | Permalink | No Comments | TrackBacks (0)

The Obama administration is siding with parents in a case before the U.S. Supreme Court about whether private school tuition can be reimbursed when a child has never received special education services in public school or even been enrolled in public school.

"When a child with a disability has been denied a free appropriate public education, [the Individuals with Disabilities Education Act] authorizes an awardof private-school tuition reimbursement regardless of whether the child previously received public special education," says the brief filed by U.S. Solicitor General Elena Kagan in Forest Grove School District v. T.A. (Case No. 08-305).

The case, to be argued April 28, is the Supreme Court's second attempt resolve the issue of whether private school reimbursement is available when a child with a disability who was never in public school or in special education has nonetheless been found to have been denied a free appropriate public education under the IDEA.

The court deadlocked 4-4 in a 2007 case, New York City Board of Education v. Tom F., that involved the same issue. Justice Anthony M. Kennedy recused himself from that case for undisclosed reasons, but will participate in the new case, which is from the 6,000-student Forest Grove district in Oregon.

In the Forest Grove case, the Obama administration has adopted a view similar to that of President George W. Bush's administration in the New York City case.

The new brief rejects the school district's arguments that a 1997 congressional amendment to the IDEA limited private school reimbursements to students who were previously enrolled in public schools and received special education services from them.

"Most fundamentally, [the school district's] reading contravenes IDEA’s central guarantee of providing a free appropriate education to 'all children with disabilities,” the U.S. brief says.

The brief also stresses that the U.S. Department of Education takes the same view that reimbursements are not limited to cases where the student has previously received public school services.

Posted by Mark Walsh at 6:00 PM | Permalink | No Comments | TrackBacks (0)

The U.S. Supreme Court has agreed to decide whether lawyers who press civil rights cases, such as to improve a state's foster-care system, may be awarded extra money on top of normal attorneys' fees when they bring about major changes.

The justices on Monday granted an appeal by the state of Georgia in a case involving an award of $10.5 milllion in attorneys' fees for lawyers who brought a class action over the state's system for handling children in foster care

A federal district judge authorized a $4.5 million enhancement on top of a $6 million regular fee award because he concluded the lawyers provided exceptional representation and forced significant changes in the system through a consent decree.

A panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, upheld the attorneys' fee bonus in a ruling last year. (The appeals court's opinion has this great opening line: "When asked how much money would be enough for him, John D. Rockefeller reportedly said: 'Just a little bit more.'")

The Supreme Court's decision to take up Perdue v. Kenny A. (Case No. 09-970) could have implications for education in that institutional-reform suits and other civil rights actions have the potentional for requiring states and school districts to pay the plaintiffs' legal fees. The legal issue has to do with whether the extra awards are appropriate when the calculation of regular attorneys' fees for prevailing parties already takes into account the quality of the representation and the results achieved.

Understandably, the lawyers who won the $10.5 million in fees filed a brief arguing that there was really nothing extraordinary about the extra fees and the case did not merit review. They didn't prevail on that, and the Supreme Court will consider the case during its term that begins next October.

Posted by Mark Walsh at 11:55 AM | Permalink | No Comments | TrackBacks (0)

A federal appeals court today upheld a lower-court ruling granting unitary status to the Little Rock, Ark., school district in a long-running desegregation case.

"The judgment declaring the Little Rock School District to be completely unitary is affirmed," said the unanimous decision by a three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis.

The court rejected an appeal from a group of black parents who intervened in a desegregation case that began in 1982, well after Little Rock's historic battle over integrating its Central High School in the late 1950s.

U.S. District Judge William R. Wilson Jr. ruled in 2007 that the Little Rock district had substantially complied with a 1998 desegregration plan and should be released from federal court supervision.

The Associated Press reports here.

Posted by Mark Walsh at 5:17 PM | Permalink | 1 Comment | TrackBacks (0)

When is an apparent legal victory for protesting students not really a victory? When their lawyers fail to win an award of attorneys' fees.

A federal appeals court has ruled that students who challenged their suspension for walking out of school to join a budget protest were not prevailing parties, even though a federal district judge sympathized with them and suggested he would grant the orders and injunction they sought.

The trouble is, the judge never actually issued the temporary restraining order or injunction, the appeals court said.

The case stems from a 2004 incident in which students walked out of Gorton High School in Yonkers, N.Y., to join a protest at Yonkers City Hall against budget cuts to the school system.

The students had been warned not to walk out of school. And the fact that some of the protesters marched back to school and began chanting "Break Out" to their peers inside the high school seemed to upset school administrators. The protestors were classified as Level IV "violent" rulebreakers under the school's discipline code, and they were suspended for five days.

After two days of the suspension, the students challenged the discipline as a violation of their First Amendment free-speech rights, and they sought court orders to end it. At a hearing the next day, U.S. District Judge Stephen C. Robinson questioned the severity of the punishment and suggested the students had show a likelihood to prevail on their First Amendment claims.

"“So I’m going to grant the temporary restraining order," Judge Robinson said at the hearing, according to court documents. "And preliminary injunction. I will sign it in a few moments.”

But the judge agreed to give the school district more time to respond, and the orders were never signed. The district did not require the students to serve the rest of the remaining three days, but the Level IV suspensions stayed on students' records.

In 2006, after the students had graduated, their lawyers sought attorneys' fees, and Judge Robinson ordered the school district to pay some $10,500 in fees and costs.

The district appealed that decision to the U.S. Court of Appeals for the 2nd Circuit, in New York City. In an April 1 ruling in Garcia v. Yonkers School District, a three-judge panel of the court unanimously reversed the award of attorneys' fees.

The court cited the "ambivalence" of Judge Robinson's statements at the court hearing.

"On the one hand, the District Court thought that the students’ First Amendment claims were meritorious in light of the disproportionate Level IV
punishment imposed ...," the appeals court said. "On the other hand, the District Court also noted that it was appropriate for the school district to punish the students for violating the Code of Conduct and, in fact, that the school district may prevail in opposing the injunction if it could show that a Level IV punishment is the ordinary disciplinary action taken against all students who leave school grounds during school hours."

There is no discussion in the opinion about whether the students' protest succeeded in staving off the school budget cuts that year.

Posted by Mark Walsh at 3:33 PM | Permalink | 2 Comments | TrackBacks (0)