August 2009 Archives

A growing number of student behavior problems in schools are being turned over to the police or juvenile justice systems when they ought to be treated as matters of school discipline, the American Civil Liberties Union says in a report out on Tuesday.

One possible reason, the report says, is the growth in the number of school resource officers--municipal police officers assigned full-time to schools or officers employed directly by larger districts.

The ACLU doesn't address whether it is a good idea for such officers to be deployed in schools. But if they are, the report says, schools and police agencies should sign agreements that define officers' roles and help respect the rights of students.

"Without sufficient guidelines, programs to deploy School Resource Officers into public schools may hamper effective policing as well as
effective pedagogy by unnecessarily criminalizing student misbehavior, alienating youth, and creating an adversarial environment in schools," says the report, "Policing in Schools: Developing a Governance Document for School Resource Officers in K-12 Schools."

The report suggests that a growing number of children are being arrested or referred to the juvenile justice system over school discipline issues, and it says that minority students are disproportionately represented in such cases. Some extreme cases are cited, including that of a 16-year-old girl who was arrested after dropping a piece of birthday cake on the school cafeteria floor and failing to clean it up to the satisfaction of the school resource officer.

Improper school arrests can lead students to drop out, the report contends.

The ACLU makes numerous recommendations in a proposed model agreement for school districts and police authorities:

* School resource officers should be responsible for criminal issues, not school discipline. Even matters that might technically be criminal violations, such as trespassing, disruption, and fighting without weapons should be treated as disciplinary matters unless there is an immediate threat to safety.

* Students should not be arrested in school unless safety is an issue or a judicial warrant requires it.

* School resource officers should search students or their belongings and lockers only when they have probable cause that the search will turn up evidence of a crime. (The report notes that court rulings are unsettled about whether such officers must meet only the lesser "reasonable suspicion" standard required for searches conducted by school officials.)

* School resource officers should receive training in such areas as child and adolescent development, children with disabilities, and "cultural competency."

Posted by Mark Walsh at 3:50 PM | Permalink | No Comments | TrackBacks (0)

With school coming back into session in most of the country, it's time to catch up with a couple of court decisions under the No Child Left Behind Act that were released over the summer. (I was traveling or otherwise out-of-pocket when these decisions came out.)

Both are from California, with one from a federal appeals court and the other from a state appellate court.

Highly Qualified Teachers
In Renee v. Duncan, a panel of the U.S. Court of Appeals for the 9th Circuit July 23 upheld a federal regulation under the NCLB law that permits teachers participating in alternative-certification programs to be considered "highly qualified" under the federal education law.

A panel of the San Francisco-based 9th Circuit ruled in a challenge to the regulation brought by two community groups and several students and their parents. The plaintiffs argued that the regulation was inconsistent with NCLB and that California had allowed school districts to hire thousands of alternative-route participants and place them in low-income and minority areas.

A federal district court granted summary judgment in favor of Secretary of Education Arne Duncan, who is defending a regulation issued by his predecessors. In its ruling last month, however, the appeals court panel ruled 2-1 that the plaintiffs lacked standing to bring the suit because there was no guarantee that a revocation of the regulation would "redress" the injuries alleged in the suit.

In other words, the court said there was nothing to keep California from counting alternative-certification teachers as highly qualified even in the absence of the federal regulation.

"It is undisputed that NCLB leaves to the states discretion over which teachers constitute 'highly qualified teachers' because 'full state certification' is purely a matter of state law," the 9th Circuit court said. "Therefore, [the plaintiffs] have not demonstrated that it is likely the injury they complain of would be redressed by a favorable decision."

In a dissent, U.S. Circuit Judge William A. Fletcher said it was unlikely that California would change its definition of highly qualifed teachers absent the regulation, and that in his view the plaintiffs meet the requirements for standing because a ruling throwing out the regulation would result in changes to the hiring and assignment of alternative-route teachers.

Testing of English-Language Learners
In a decision a few days later, a state appellate court in California rejected a lawsuit brought by nine school districts against the state, the state board of education, and others over the state's system of testing students who are learning English.

The plaintiffs argued in their suit that the state's program of testing all students, including English-language learners, in English was inconsistent with the NCLB law's requirement that such tests be "valid and reliable."

In its July 30 ruling in Coachella Valley Unified School District v. California, the California Court of Appeal for the First District said the state board of education's judgment in establishing the testing program could not be questioned in the courts.

The school districts "have urged there must be a trial, with a battle of experts and the like," the court said. "Rather than assuming the role of deferential reviewer of the agency's actions, the court would become the official second-guesser on the issue of how to assess LEP students under the NCLB [act], tasked with the job of figuring out whether the tests are valid and reliable, etc. The NCLBA confers discretion on the participating states to do this very thing and here the State Board, exercising its quasi-legislative powers, undertook to do this job."

* * * *

These two rulings hardly shake up the status quo. They generally uphold the power of the U.S. Department of Education to promulgate regulations interepreting the NCLB law, and they uphold the power of states to put their own stamp on testing policies under the federal law.

One of the biggest legal challenges to the No Child Left Behind Act remains pending before the full U.S. Court of Appeals for the 6th Circuit, in Cincinnati.

The 6th Circuit heard arguments last December (my blog post here) in a challenge to NCLB backed by the National Education Association, which contends in its suit that the federal law imposes unfunded mandates on school districts in violation of the statute's own language.

It's unclear when the 6th Circuit will issue its ruling.

Posted by Mark Walsh at 1:15 PM | Permalink | No Comments | TrackBacks (0)

A school district's challenge of the construction of a halfway house for prisoners and probationers in its community is headed back to where the district filed it--a state court.

A federal appeals court ruled Monday that because the Saginaw, Mich., district sued both the city of Saginaw and an out-of-state company building the halfway house, a lower federal court improperly granted the company's request to remove the suit from state to federal court.

The Saginaw district argues in its suit that the halfway house being built by Bannum Inc., a Kentucky- and Florida-based company, did not have proper zoning permits and would be a "nuisance" to a nearby school. The company was also sued by the Saginaw Housing Commission, an agency independent of the city of Saginaw that said the halfway house would harm its efforts to develop affordable housing in the city.

In its opinion in Saginaw School District v. Bannum Inc., a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled that the school district did not improperly add the city of Saginaw as a defendant, and thus there was not full home-state diversity of the plaintiff and all defendants in the case. Thus, the school district's case properly belongs in state court.

As for the housing commission's challenge, which only named Bannum as a defendant, the appeals court said the federal district court could consider the case.

Posted by Mark Walsh at 5:00 PM | Permalink | 1 Comment | TrackBacks (0)

Two Tennessee school districts have agreed to stop blocking student and teacher access to Web sites with information about gay, lesbian, bisexual, and transgender issues.

The American Civil Liberties Union had sued on behalf of several students and educators in the Metropolitan Nashville and Knox County school districts. The suit alleged that filtering software used by the districts blocked access to informational Web sites.

The ACLU's press release is here. This page provides access to the original suit as well as the settlement agreement and the district court order of dismissal.

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A federal appeals court has ruled that a Texas school district's dress code that prohibits most messages on student shirts, including political slogans, is likely consitutional.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, upheld a lower-court ruling denying a preliminary injunction sought by Paul Palmer, a student at Waxahachie (Texas) High School. In 2007, Palmer sought permission to wear shirts with messages supporting the presidential campaign of John Edwards, as well as another shirt extolling free speech and the First Amendment.

School officials said the shirts violated a dress code that permitted only small logos or symbols of school clubs or promoting school spirit. The dress code did allow political messages on buttons, pins, and wrist bands.

Palmer and his parents sued under the First Amendment, arguing that the student's proposed shirts would not disrupt school, were not drug-related or sexually explicit, and would not appear as school-sponsored speech and thus were protected expression.

The family lost in both a federal district court and in the 5th Circuit, which ruled Aug. 13 in Palmer v. Waxahachie School District that the dress code's restriction on messages was a content-neutral regulation of speech.

The court said one goal of the school district with its dress code, "promoting
professional and responsible dress," was justifiable "because students are
prepared for a working world in which pins and buttons may be appropriate at work but large, stark political message t-shirts usually are not."

Posted by Mark Walsh at 12:12 AM | Permalink | 1 Comment | TrackBacks (0)

The Senate today confirmed Sonia Sotomayor as a justice on the U.S. Supreme Court.

The vote was 68 to 31, with 9 Republicans joining 57 Democrats and two Independents in voting for the federal appeals court judge. Ailing Sen. Robert C. Byrd, the 91-year-old Democrat of West Virginia, was helped to the Senate floor in a wheelchair to cast his yes vote. Sen. Edward M. Kennedy, D-Mass., had expressed his support for Sotomayor but was not present for the vote because of his battle with brain cancer.

"Judge Sotomayor understands people like Linda Brown," Senate Majority Leader Harry Reid of Nevada said today in closing the three days of floor debate. It was a reference to the young African-American student at the center of the U.S. Supreme Court's 1954 decision in Brown v. Board of Education of Topeka.

Sotomayor, a member of the U.S. Court of Appeals for the 2nd Circuit, in New York City, succeeds Justice David H. Souter, who retired in June after 19 terms on the Supreme Court.

Sotomayor will likely be sworn in within days in a White House ceremony, then have a more formal investiture at the court early this fall. UPDATE: CNN reports that the White House ceremony will be Saturday at 11 a.m.

The court has a special early argument session on Sept. 9 in a campaign finance case before formally opening its next term on the first Monday in October.

And while the 2008-09 term ended up with several major education decisions, there are currently no cases directly involving schools or students on the court's docket for next term. But there are several education appeals awaiting review by the justices.

Posted by Mark Walsh at 3:20 PM | Permalink | 1 Comment | TrackBacks (0)

By guest blogger Erik Robelen:

With the U.S. Senate seemingly poised to approve Judge Sonia Sotomayor for the Supreme Court later this week, the pile of letters in support and against the president's nominee has grown pretty high.

Both national teachers' unions, the National Education Association and the American Federation of Teachers, were among the dozens of groups to sign a July 27 letter to the Senate Judiciary Committee urging a "yes" vote for Judge Sotomayor. (The NEA had actually first announced its support in a June 30 press release.)

"During her long tenure on the federal judiciary, Judge Sotomayor has ... demonstrated a thorough understanding of a wide range of highly complicated legal issues, and has a strong reputation for deciding cases based upon the careful application of the law to the facts of cases. Her record and her inspiring personal story indicate that she understands the judiciary's role in protecting the rights of all Americans, in ensuring equal justice, and in respecting our constitutional values--all within the confines of the law."

Other groups that signed this letter include the American Association of University Women, the Disability Rights Education and Defense Fund, the Leadership Conference on Civil Rights, the NAACP, the National Disability Rights Network, the National Urban League, and People for the American Way.

Meanwhile, more than 20 professors of special education law, disability law, and disability rights law wrote in favor of Judge Sotomayor in a June 30 letter.

"A review of Judge Sotomayor's record on disability law issues indicates that she has an excellent understanding of the various laws' application to people with disabilities in various contexts. ... Judge Sotomayor's record shows that she takes a balanced, thoughtful approach to disability issues. Her analysis is consistently thorough, practical, and respectful of individual rights. In close cases, she does not appear to follow any particular ideology or activist agenda."

The only letter in opposition I could find from a K-12 education organization per se came from the American Association of Christian Schools, based in East Ridge, Tenn. The group, which describes itself as "a national coalition of Bible-believing Christian schools," said it was concerned that she would not bring impartiality to the court and has demonstrated a "misinterpretation of the rule of law and the United State Constitution." The group also said it was concerned about her "interpretation on the right to life."

If I've missed any other letters of note, let me know by posting a comment.

Posted by Erik Robelen at 1:10 PM | Permalink | No Comments | TrackBacks (0)

A poor understanding of civics by many Americans, such as the two-thirds who cannot name the three branches of government, "is something to worry about," retired U.S. Supreme Court Justice David H. Souter told the American Bar Association on Saturday.

“I’m here to speak this evening because civic education in the United States is not good enough, and we have to do something about it,” Souter said to the ABA's annual meeting in Chicago. “I want to speak about the risk to constitutional government when a substantial portion of the American populace simply fails to gain that understanding. In particular, I’ll ask you to consider the danger to judicial independence when people have no conception of how the judiciary fits within the constitutional scheme.”

[I was not in attendance, but the video of Souter's speech is available here. Lynne Marek of the National Law Journal has a good account of the speech, while the Chicago Tribune reports here and the Chicago Sun-Times here.]

Souter recalled his youth attending the annual town meeting in Weare, N.H., part of the New England tradition in which any of a town's citizens could turn out to speak and vote on policy matters.

"If anyone had put the question to one of my 9th-grade classmates or to me -- what are the three branches of government? -- none of us would have failed to answer," Souter said.

Souter, who retired in June after 19 years on the Supreme Court, has joined an effort to review New Hampshire's civics education curriculum. And he urged ABA members to support efforts, particularly in their own states, to improve civics education.

“I ask you to make this effort a powerful one, to take part in it, every one of you in every way that you can,” Souter said.

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