October 2009 Archives

A review of how states gather and manage databases containing individualized student information shows that many do so in ways that threaten the privacy of students, including using procedures that violate federal mandates on storing data about mental health, pregnancies, and juvenile crime.

The 87-page study by the Center on Law and Information Privacy at Fordham University Law School found that about one-third of states warehouse children's Social Security numbers, and nearly half track the mental health and jail sentences of students in their databases.

The center examined states' practices in light of greater data-collection requirements of the federal No Child Left Behind Act. But many states go beyond what the NCLB law requires, the report says, and some practices violate the Federal Educational Rights and Privacy Act, it adds.

The report, "Children's Educational Rights and Privacy: A Study of Elementary and Secondary School State Reporting Systems," recommends that student data maintained at the state level be made anonymous through the use of "dual-database architecture." Third-party data processors, such as private firms, should be made to sign agreements that address privacy obligations, the report says. And state education departments should each have a chief privacy officer to protect data, the report says.

The full report is linked above, and a press release is here, and a Washington Post story about the report is here.

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A federal appeals court deadlocked over a key legal challenge to the No Child Left Behind Act, resulting in the affirmance of a lower court's dismissal of the case.

The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, spent 10 months deliberating over the case involving a suit filed by nine school districts in Michigan, Texas, and Vermont, backed by the National Education Association, that challenges the federal K-12 education law as an unfunded mandate.

On Friday, the court issued 93 pages worth of opinions in Pontiac School District v. Secretary of the U.S. Department of Education, with eight judges accepting one of the NEA's arguments against the NCLB, and eight judges backing various arguments supporting dismissal of the case.

"Consequently, the judgment of the district court is affirmed," said a short order that accompanied the court's opinions.

Central to the case is a provision in the NCLB law that says, "Nothing in this act shall be construed to ... mandate a state or any subdivision thereof to spend any funds or incur any costs not paid for under this act."

Judge R. Guy Cole Jr. wrote an opinion, signed by seven other judges, that agreed at least in part with the school districts and the NEA that the so-called unfunded-mandates provision in the NCLB law meant that states and school districts could not be required to spend their own money to comply with the law.

"NCLB rests on the most laudable of goals: to 'ensure that all children have a fair,
equal, and significant opportunity to obtain a high-quality education,'" wrote Judge Cole, who was the author of a panel decision in the case that revived the NEA's suit last year. "Here, nobody challenges that aim. But a state official deciding to participate in NCLB reasonably could read [the unfunded-mandates provision] to mean that the state need not comply with requirements that are 'not paid for under the act' with federal funds."

Judge Cole's opinion, however, fell one vote short of controlling the outcome of the case.

Judge Jeffery S. Sutton, joined by five other judges, wrote an opinion that disagreed with Judge Cole's view on the merits of the NCLB arguments.

"Depending on whom you ask, the No Left Child Behind Act might be described in many ways: bold, ground-breaking, noble, naïve, oppressive, all of the above and more," Judge Sutton wrote. " But one thing it is not is ambiguous, at least when it comes to the central tradeoff presented to the states: accepting flexibility to spend significant federal funds in return for (largely) unforgiving responsibility to make progress in using them."

Judge David W. McKeague, joined by two other judges, said in an opinion that he would not rule on the merits because he believed the NEA's suit lacked necessary plaintiffs--the states of Michigan, Texas, and Vermont.

That meant a total of eight judges supported dismissal of the case, albeit on differing grounds, and that deadlock meant that a federal district judge in Detroit's dismissal of the case was upheld.

I haven't seen any reaction on the Web yet from the U.S. Department of Education or from the NEA. It is noteworthy that arguments by NEA General Counsel Robert H. Chanin made more headway with the 6th Circuit than seemed evident after oral arguments.

I reported in the blog here on the en banc oral arguments in the case last December (with a slightly revised story appearing in Education Week here.)

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A federal appeals court has revived the lawsuit of a teacher who alleged that her Wisconsin school district failed to accommodate her "seasonal affective disorder."

Teacher Renae Ekstrand's suit alleged that the artificially-lighted classroom she was provided exacerbated her disorder, which is a form of depression, to the point where she experienced anxiety, fatigue and other problems, leading her to take a leave of absence. Her suit alleged that the Somerset school district violated the Americans with Disabilities Act by failing to assign her to a classroom with natural light.

A federal district court granted summary judgment to the school district, concluding that it had tried to respond to the teacher's concerns. But in an Oct. 6 decision in Ekstrand v. School District of Somerset , a panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, restored her suit.

The panel held unanimously that the district could not have initially known that a classroom with natural light was the only effective accommodation for a teacher with seasonal affective disorder. But Eckstrand eventually presented information from one of her doctors that natural light was key to her improvement.

"Once aware of natural light's medical necessity to Ekstrand, and having been informed by Ekstrand only two weeks earlier that she was willing and able to return to work in a classroom with natural light, the school district was obligated to provide Ekstrand's specifically requested, medically necessary accommodation unless it would impose an undue hardship on the school district," the appeals court said.

The district faced little hardship because a teacher with a natural-light classroom was willing to switch with Ekstrand, and empty classroom was also available, the court said.

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A federal district judge has dismissed a lawsuit alleging that the teacher-licensure test in Massachusetts discriminates against minorities and those whose second language is English.

U.S. Senior District Judge Edward F. Harrington, of Boston, dismissed the suit filed by three teachers who had failed the Massachusetts Tests for Educator Licensure and thus were dismissed by the Boston school system in 2006. The teachers alleged in the suit against the state, the Boston district, and test-maker NCS Pearson Inc. that the tests had an illegal disparate impact on minority and ESL test-takers. On a literacy-skills portion of the MTEL, 39 percent of African-American test-takers passed, compared with a 75 percent pass rate of white test-takers.

In an Oct. 13 opinion in Alston v. Massachusetts, Judge Harrington granted the defendants motions to dismiss, largely on the grounds that the plaintiffs had failed to follow procedural steps with a state anti-discrimination agency and had waited too long after the 2006 dismissals to file the suits earlier this year.

In a brief bit of dicta, Judge Harrington scolded the plaintiffs for attacking the teacher test.

"A person who fails the bar examination does not practice law!" the judge said. "A competent teacher is one who has thorough knowledge of his subject and the faculty of communicating that knowledge effectively to his students. No student deserves to suffer an inferior education because he was exposed to a teacher less than qualified."

The plaintiffs should seek to "ameliorate their scholastic deficiencies rather than to seek to undermine the standards" of the teaching profession, the judge said.

The Boston Globe reports on the case here.

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Often, after big, complicated civil rights litigation in such areas as school desegregation and the reform of foster care, there is a second battle: over attorneys' fees for the prevailing party.

The U.S. Supreme Court today took up an important question arising out of such battles: whether courts may award enhanced fees, above and beyond reasonable attorneys' fees based on hourly pay rates, when lawyers seeking institutional reforms do an exceptionally good job of making their case and bringing about improvements.

A federal district judge in Georgia awarded lawyers who led a long legal battle to improve the state's foster-care system an extra $4.5 million in fees, on top of $6 million awarded under what is called the "lodestar" system: reasonable billable hours and authorized expenses. The judge said that lawyers from a New York City group called Children's Rights had done a "superb" job on the case and had "brought a higher degree of skill, commitment, dedication, and professionalism to this litigation than the court has seen displayed by the attorneys in any other case during its 27 years on the bench."

A federal appeals court upheld the enhanced award.

The justices agreed to take up the case, Perdue v. Kenny A. (Case No. 08-970), which drew some interesting friend-of-the-court briefs. The National School Boards Association filed such a brief on the side of the state of Georgia, which is seeking to overturn the enhanced award. The NSBA argues that the case is "of extreme importance" to schools because of the potential harmful effect of enhanced fee awards to school systems and their taxpayers.

"Like the present case, litigation against school districts frequently results from chronic
underfunding that leads to systemic deficiencies," the NSBA brief says. "In such cases, public schools will often seek to resolve the matter through mediation or negotiations that culminate in settlements or consent decrees that call for significant policy changes, structural overhauls, programmatic improvements, and increased funding to correct the deficiencies. But under ... enhanced fee award theory, courts could reward the plaintiffs' attorneys with large performance bonuses that school systems can ill afford to pay."

Joining briefs supporting the bonus fees are several groups that are often behind lawsuits against school districts, including the American Civil Liberties Union and the NAACP Legal Defense Fund on the left, and the Alliance Defense Fund and the American Center for Law and Justice on the right.

The conservative groups, in their brief, argue that attorney's fees undergird the system of private enforcement of the nation's civil rights laws.

"Attorney fees are not merely about compensating attorneys who undertake the
representation of those oppressed and damaged by government, often at significant risk to their regular practice," says the brief by Alliance Defense Fund, the ACLJ, and other groups. "Just as important, and possibly more so, they provide the incentive for governments, especially with the outcry of local taxpayers upon the media
announcement of an attorney fee judgment, to reform their unlawful conduct and refrain from civil rights violations in the future."

And alluding to a noteworthy case pressed by one of the conservative legal groups, the brief says, "A local school district can spend a million dollars fighting a child who wants to hand a candy cane with a religious poem attached to his friends during Christmas, and then hold media events expressing a need for money for education."

These school examples and arguments weren't discussed during oral arguments today, but there was still a lively discussion.

Justice Sonia Sotomayor noted that the high court has held "that it should be a rare and
exceptional circumstance" to award an enhanced fee.

"The difference that we are engaged in is whether the quality of performance can ever constitute that rare exception that would justify a district court saying, you performed greater than what the market would have valued you at before your performance," she said.

Pratik A. Shah, an assistant to the U.S. solicitor general, arguing on Georgia's side, said the law does not permit enhanced fee awards for outstanding attorney performance. One case in which an enhanced fee could be authorized would be "where an attorney takes on a particularly unpopular client or cause that causes some external harm, external to the case, to his practice or income."

Justice Samuel A. Alito Jr. later told the lawyer arguing for Children's First and the enhanced-fee award that he was troubled because "here the district judge in effect takes four-plus million dollars from the taxpayers of Georgia and awards it above the lodestar calculation to these attorneys and says ... this was the best performance I have seen in 28 years. But it seems totally standardless, and I see no way of policing it, and I see a great danger that trial judges are going to use this as a way of favoring their favorite nonprofit foundation or their favorite cause or their favorite attorneys, because they think they generally do good work."

Justice Antonin Scalia added: "I don't like judges -- it's certainly not in the tradition of the bench -- to comment upon the performance of lawyers. I can't tell you how often I would like to give a separate grade for the lawyer who won a case. You know, one grade for the case and the other for the lawyer. But we don't do that."

Paul D. Clement, a former U.S. solicitor general under President George W. Bush and the lawyer arguing for the enhanced award, later was challenged by Chief Justice John G. Roberts Jr. about whether the outcome of a civil-rights case is the result of a lawyer's strong performance or the judge's interpretation of the law.

"Maybe we have a different perspective," the chief justice told Clement. "You think the lawyers are responsible for a good result, and I think the judges are."

In a breezy retort that not every lawyer arguing before the justices could get away with, Clement alluded to Chief Justice Roberts's former career as a highly successful Supreme Court advocate.

"Maybe your perspective has changed, your honor," Clement said to the chief, drawing laughter in the courtroom.

A decision in the case is expected by next July.

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A federal district judge in New Hampshire has upheld the practice of schools leading the Pledge of Allegiance amid a challenge by parents who objected to exposing their children to the words "under God" in the pledge.

The challenge was brought by plaintiffs identified in court papers as the Doe family, The mother and father describe themselves as an atheist and agnostic, respectively, with three children in the Hanover, N.H., school district who also question the existence of God. (The school district is a joint one with Dresden, Vt.)

There is no suggestion in the case that the children have been compelled to recite the pledge. Under a New Hampshire law passed in the wake of the Sept. 11, 2001, terrorist attacks, schools must set aside time for teachers to lead the pledge, but students are not required to recite it. (That would be in keeping with the U.S. Supreme Court's 1943 decision in West Virginia State Board of Education v. Barnette.)

The Does' suit alleges violations of the First Amendment's guarantee of free exercise of religion and prohibition against government establishment of religion, among other legal theories. (The family is being represented by California lawyer Michael Newdow, an atheist who has carried out his own longtime campaign against the inclusion of "under God" in the pledge and school-led recitations of the pledge.)

In a Sept. 20 opinion, U.S. District Judge Steven J.McAuliffe noted that the federal government stepped in to the case to defend the federal Pledge of Alliegiance statute. But since the federal pledge law does not command anyone to recite it, or lead its recitation, the federal law was not really at issue, the judge said.

Judge McAuliffe devoted most of his analysis to the New Hampshire pledge law. Analyzing the state law under various Supreme Court establishment clause tests, the judge concluded that that statute primarily has a secular purpose of promoting patroitism among schoolchildren.

"The legislative history contains a far-reaching discussion of patriotism, and places enactment of the statute in the context of a response to the attacks of September 11, 2001," the judge said. "That context supports the conclusion that patriotism, rather than
support of theism over atheism or agnosticism, was the guiding force behind the enactment of the New Hampshire Pledge statute."

The judge also adopted the view that the addition of the words "under God" to the pledge by Congress in 1954 was more of a political response to Communism than a desire to promote monotheism.

"The Pledge, taken as a whole, is a civic patriotic affirmation, not a religious exercise, and inclusion of the words 'under God' constitutes, at the most, a form of ceremonial or benign deism," Judge McAuliffe said.

The judge granted the school district's motion to dismiss the lawsuit.

The Manchester Union-Leader has this story on the decision.

It took me a little bit of searching to find the opinion in Freedom From Religion Foundation v. Hanover School District. If that link doesn't work, try the search function on the home page of the U.S. District Court for the District of New Hampshire.

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The U.S. Supreme Court on Monday denied review of several appeals involving public education, including cases about the Pledge of Allegiance in schools, T-shirts bearing Confederate symbols, peer sexual harassment, and special education.

The cases were among several hundred denied by the justices in orders issued on the first formal day of the 2009-10 term of the court. Several of the denials came in cases dealing with hot-button social issues, which I previewed here last month.

The denials of review of the following cases all came without comment by the justices and are not rulings on the merits of the appeals. Here are the education cases denied review on Oct. 5:

Frazier v. Smith (Case No. 08-1351)
In one of the most prominent, the justices declined to hear a challenge to a Florida law that requires students to have parental permission to refuse to participate in daily recitations of the Pledge of Allegiance.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, held last year that the law was meant to vindicate parents' rights to control the upbringing of their children, not students' rights. The appeals panel struck down a provision requiring students to stand even if they have permission to not recite the pledge, but it upheld the parental-permission requirement.

The law was challenged by Cameron Frazier, who as a high school student in 2005 was rebuked at his school for refusing to stand or recite the pledge.

Barr v. LaFon (No. 08-1325)
Also denied was an appeal on behalf of three Tennessee students who challenged their school district's prohibition of displays of the Confederate flag.

A panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled last year in favor of the Blount County, Tenn., school district and administrators in a challenge to the prohibition by students who say they wanted to express their Southern heritage by wearing clothing depicting the Confederate flag. The appeals court noted that school officials were responding to several racial incidents in enacting the ban.

Hudson Area Schools v. Patterson (No. 09-143)
The justices refused to hear the appeal of a Michigan school district that faces potential liability under federal law for its response to the sexual harassment of a student by his peers.

A panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, held early this year that the suit filed by the parents of the harassed student should go to trial. The parents' suit alleges that the Hudson Area Schools in Michigan failed to adequately respond to a pattern in which students harassed the boy almost daily with taunts such as "queer" and "faggot."

The school district claimed in court papers that it did take action in response to the harassment, and it urged the justices to review the lower court's denial of summary judgment.

L.M. v. Capistrano Unified School District (No. 08-1414)
The justices declined an appeal stemming from two California parents' challenge to a school district policy that limited the parents' educational expert to only 20 minutes observation of the district's proposed school placement for their autistic son. The parents contended the limit violated their rights under the federal Individuals with Disabilities Education Act, but they lost in a lower court.

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