April 2010 Archives

A federal judge has ruled that the University of Wyoming must allow education professor and 1960s radical William C. Ayers to speak at a university facility. The university had withdrawn an April 5 speaking invitation to Ayers, citing security concerns.

Ayers, a professor at the University of Illinois at Chicago, was a founder of the radical Weather Underground and has often been painted as unrepentant about activities of the group that included bombing of government buildings. He became an issue in the 2008 presidential campaign because he had ties to Barack Obama.

After the University of Wyoming canceled the April 5 appearance, a student sought to sponsor a talk by Ayers tonight at the university's sports complex in Laramie. The student, Meghan Lanker, provided an e-mail from university officials saying no campus facility would be available for the speech. Ayers and Lanker sought an injunction, arguing that the university's actions violated the First Amendment. Lawyers for the student also argued that the university was more concerned about placating alumni and donors who opposed a visit by Ayers.

According to this story today in the Casper Star-Tribune, U.S. District Judge William Downes noted in court yesterday that while Ayers was in the Weather Underground, the judge was serving as an officer in the U.S. Marine Corps during the Vietnam War.

"When his group was bombing the U.S. Capitol in 1971, I was serving in the uniform of my country," the newspaper quoted Downes as saying yesterday. "Even to this day, when I hear that name, I can scarcely swallow the bile of my contempt for it. But Mr. Ayers is a citizen of the United States who wishes to speak, and he need not offer any more justification than that."

The judge also dismissed the university's evidence about threats of violence, saying e-mail messages were either veiled and direct or else not threats at all, the newspaper said. The judge granted a preliminary injunction requiring the university to permit Ayers to speak at the sports complex tonight.

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A federal appeals court today reinstated a Title IX lawsuit against a Florida school district in a case brought by a student who said she was sexually assaulted by a math teacher who had been the subject of earlier sex-harassment complaints.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, held that the Broward County school district potentially could be found "deliberately indifferent" under Title IX for the "serious deficiencies" in its handling of student sex-harassment complaints against the math teacher.

In one incident, the math teacher at Blanche Ely High School was alleged to have made sexual advances against a female 11th grade student in 2004. The student filed a complaint with the principal, who conducted his own inquiry as well as calling in the school district's special investigative unit. The teacher was placed on leave, but when the investigation proved inconclusive, he was allowed to return to the classroom.

In 2005, the teacher allegedly made advances toward a second student, telling her when they were alone that she seemed very "grown up" and that he liked how her lips looked.The student filed a complaint, and the principal again investigated. But school officials allegedly failed to interview a friend of the complaining student who had witnessed some of the alleged harassment, according to the lawsuit of the separate student who was later allegedly sexually assaulted by the teacher.

The principal left after the 2004-05 school year, but before he did, he gave the math teacher a satisfactory job evaluation and recommended that he be retained. The new principal at Blanche Ely High was not informed of the past complaints about the teacher, court papers say.

A student identified in court papers as Jane Doe alleged in her lawsuit that the math teacher sexually assaulted her in a classroom in 2007. This time, an investigation led to the math teacher's dismissal. (It's not clear from whether there were any criminal charges.)

In her suit, Doe contends that the school district's handling of the earlier complaints amounted to deliberate indifference under the Supreme Court's Title IX precedents and allowed the math teacher to offend again. A federal district court rejected the claim, but the 11th Circuit court panel took a different view.

"Granted, this is not a situation in which a school district made no effort whatsoever, either to investigate or to put an end to the harassment," the 11th Circuit said in Doe v. School Board of Broward County.

But "once it was a known circumstance that [the math teacher] had been accused of multiple acts of sexual harassment in his classroom behind closed doors, ... cautionary measures [such as closer monitoring of the accused teacher] could have contributed to the reasonableness of the school board's response," the court said.

The court held that a reasonable jury could find that the school district's "deficiencies" in handling the earlier incidents "caused Doe's sexual harassment by substantially increasing the risk faced by female students at Blanche Ely."

The case now goes back to federal district court for a likely jury trial.

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The U.S. Supreme Court today agreed to take up a California law that prohibits the sale or rental of violent video games to minors.

The justices accepted an appeal filed on behalf of Gov. Arnold Schwarzenegger defending a 2005 law that was struck down by a federal appeals court as a violation of the First Amendment.

The law defines violent video games as ones in "which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being," if those acts are depicted in the game in a manner that meets either of two standards. One standard includes whether the game lacks serious literary, artistic, political, or scientific value for minors. The second standard involves whether the game "enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved."

The law was challenged by the video gaming industry, and in a February 2009 ruling, a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held that the law violates the First Amendment.

"Under strict scrutiny, the state has not produced substantial evidence that supports the Legislature's conclusion that violent video games cause psychological or neurological harm to minors," said the 9th Circuit panel's unanimous opinion. "Even if it did, the Act is not narrowly tailored to prevent that harm and there remain less restrictive means of forwarding the state's purported interests, such as the improved ESRB rating system, enhanced educational campaigns, and parental controls."

In the lower courts, the state submitted violent scenes from such video games as "Grand Theft Auto: Vice City," "Postal 2," and "Duke Nukem 3D."

In its appeal to the Supreme Court in Schwarzenegger v. Entertainment Merchants Association (Case No. 06-1448), the state said, "This is an important issue with national implications,particularly in light of the growing evidence that these games harm minors and that industry self-regulation through the existing rating system has proven ineffective."

In its brief urging the high court not to take up the case, the video game industry argues that virtually every other attempt by states or localities to restrict the sale of violent video games to minors has been struck down. The brief argues that the 9th Circuit's ruling was correct.

"Outside of limited contexts such as public schools,the government may not generally act as a censor on what material is appropriate for minors," said the industry's brief. "The proper arbiters of what minors view are parents, not the government."

The court will take up the case in its next term, which begins in October.

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A federal appeals court has reinstated some free speech and retaliation claims by several teachers at a Colorado charter school. The teachers allege that their charter school principal illegally barred them from meeting to discuss school matters and that the school retaliated against them then they did.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit, in Denver, held that the former principal of the Twin Peaks Charter Academy in Longmont, Colo., was not entitled to qualified immunity on some of the free-speech claims raised in a lawsuit by six teachers.

The principal's "legitimate interests in ensuring the efficient functioning of the school and deterring teachers from disclosing confidential student information did not justify a ban on the discussion of all school matters," the court said in its unanimous April 21 opinion in Brammer-Hoelter v. Twin Peaks Charter Academy.

Although the court dismissed several of the teachers' claims, it also held that a trial court should determine whether the charter school was liable for retaliation after refusing to reinstate the teachers, who had resigned amid clashes with the principal.

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I was unavailable for the big Title IX announcement by Vice President Joe Biden and U.S. Secretary of Education Arne Duncan on April 20, so I thought I would catch up with it today.

The U.S. Department of Education's office for civil rights is withdrawing guidance issued under the Bush administration that permitted schools and colleges to use surveys of potential student-athletes to determine interests in a particular sport.

Under the Bush administration's interpretation, the survey results alone could be used to demonstrate insufficient interest or ability in a sport, which the college could then rely on to demonstrate compliance with Title IX of the Education Amendments of 1972, which bars discrimination based on sex in federally funded education programs.

The Obama administration policy, which is a reiteration of Title IX guidance issued during President Bill Clinton's administration, stresses there are multiple factors to be evaluated to determine whether a college is providing nondiscriminatory athletic opportunities under the federal law.

This is largely an issue for college athletic programs, since the surveys and the compliance tests relate to athletic scholarships, but Title IX equity and enforcement affects K-12 schools as well.

The Education Department issued a "Dear Colleague" letter from Assistant Secretary for Civil Rights Russlyn Ali, a question-and-answer document, a fact sheet, and a press release about the change.

At least two groups had embraced the Bush administration policy. One was the National Wrestling Coaches Association, which has clashed with the Education Department in court over the association's view that Title IX enforcement has prompted many colleges to drop men's sports (such as wrestling). The other is the U.S. Civil Rights Commission, which issued a report on Title IX earlier this month that backed the reliance on the surveys.

The New York Times reports on the change here and the Associated Press here.

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The U.S. Supreme Court appeared sharply divided today on whether public schools and universities may deny full recognition and benefits to student religious groups that require members to subscribe to their beliefs.

"To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right?" Justice Antonin Scalia characterized the central question during oral arguments. "That's crazy."

But Justice Sonia Sotomayor pressed the lawyer for the Christian Legal Society chapter seeking full recognition at the University of California's Hastings College of Law in San Francisco about whether schools should be allowed to pick the best way to achieve their goal of prohibiting discrimination.

"Don't we give deference to an educational institution in terms of the choices it makes about affecting its purposes?" Sotomayor said. "And the purpose here is, we
don't want our students to discriminate."

Christian Legal Society v. Martinez (Case No. 08-1371) has attracted wide interest from college groups, K-12 education associations, and religious rights advocates.

A friend-of-the-court brief filed by the National School Boards Association, the National Association of Secondary School Principals, and others school groups sides with Hastings College of Law and calls on the court to uphold the application of nondiscrimination policies to student religious groups.

"Forcing public schools to exempt certain student groups from an all-comers nondiscrimination policy would risk the perception" that the school was endorsing the conduct or viewpoint of a religious group, the K-12 groups' brief said.

The concern is not purely theoretical. While many of the conflicts have involved Christian Legal Society chapters in law schools and other higher education settings, there have been cases raising the issue at the high school level.

In one case, Truth v. Kent, a federal appeals court upheld a Washington state school district's decision to deny recognition to a student Christian club that limited officer positions and voting membership. The court said the school's application of its non-discrimination policy to the club did not violate the club's First Amendment free-speech rights. The court in that case also held that the school's actions did not violate the federal Equal Access Act, which requires secondary schools receiving federal funds to treat all non-curricular clubs on an equal basis. The act does not apply to higher education.

During oral arguments today in the Hasting case, the justices did not have time to delve into the implications for K-12 schools, largely because they had many factual concerns about how the law school treated the CLS chapter. There was back and forth over whether the school had an "all-comers" policy requiring student groups to accept everyone, or whether the CLS chapter was targeted for enforcement because it did not accept those who advocate a "sexually immoral lifestyle," as the group puts it in court papers.

But the justices also had hypothethicals.

Justice Ruth Bader Ginsburg pressed Michael W. McConnell, the lawyer for the CLS chapter, on whether the public school must recognize a group with a belief that, "based on their reading of the Bible, that only white men can lead the Bible studies [and] can become officers of the group."

"They can insist that everyone who participates in the group have that belief, and that ... may mean it's going to be a very small group," McConnell said.

Justice Anthony M. Kennedy, who appeared genuinely torn about how to rule in the case, asked the lawyer for Hastings law school, Gregory G. Garre, "Why doesn't this just all work out?"

"If the Christian Legal Society has these beliefs, I am not so sure why people that don't agree with them want to belong to them," Kennedy continued. "Doesn't it work out that
the Democrats, they don't want to go to the Republican club and run for officership anyway? So what interest does the school have in this policing mechanism that it's imposing?"

"If you are going to allow religious groups, or any group, to draw exceptions for some people, then you have to determine where to draw the line," Garre said. "And I think a school can reasonably say: We don't want to get into this business at all; we want to
allow all comers for all school-subsidized [groups]."

In relation to Kennedy's concern, Justice Samuel A. Alito Jr. raised the specter of a small campus Muslim group being overwhelmed under an accept-all-comers policy by a faction of anti-Muslim students.

"There is no evidence that it has happened," Garre responded. "Groups can take measures to prevent it," such as requiring attendance at a certain number of meetings before people can become members, he said.

Chief Justice John G. Roberts Jr. shot back: "Okay. They take over the group and the first thing they do is say: 'We are abolishing the attendance policy.'"

The case is expected to be decided by the end of the court's term in June.

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Goodwin H. Liu, a federal appeals court nominee with broad education policy experience, faced sharp criticism today from Republicans on the Senate Judiciary Committee.

Republicans repeatedly cited a Stanford Law Review article in which Liu suggested a re-examination of "welfare rights," which Liu construed as including education, shelter, and health care, as federal constitutional rights.

"I don't think there is any doubt you are an American success story," Sen. John Cornyn, R-Texas, told Liu, the son of immigrants from Taiwan. "The question I have is, is this the right job for you?"

Sen. Jeff Sessions of Alabama, the ranking GOP member of the panel, said during the hearing that Liu's writings "represent the very vanguard of what I would call intellectual judicial activism."

Republicans also expressed concerns about what they called Liu's failure to fully respond and provide materials on his committee questionnaire and his opposition to the nominations by President George W. Bush of John G. Roberts Jr. and Samuel A. Alito Jr. to the Supreme Court.

The battle over Liu's nomination to the 9th U.S. Circuit Court of Appeals is being widely viewed as a tuneup battle for President Obama's forthcoming nomination of someone to the U.S. Supreme Court to succeed Justice John Paul Stevens, who will retire at the end of the court's term in late June.

Democrats on the panel came to Liu's defense. Sen. Dianne Feinstein, D-Calif., said Liu's parents kept him from learning English until he entered kindergarten so he would not have an accent.

Feinstein also cited the fact that Liu was the first-ever recipient, in 2007, of the Education Law Association's Steven S. Goldberg Award for distinguished scholarship in education law.

The nomination of Liu, an associate dean and law professor at the University of California, Berkeley, is supported by a bipartisan group of education policy experts. He served as a special assistant in the U.S. Department of Education in 1999 and 2000 under Secretary Richard B. Riley Jr. Liu has also written extensively on education issues. (My blog post here; Politics K-12 here.)

Sen. Ted Kaufman, D-Del., asked Liu what his Education Department experience taught him.

"I worked for some extremely talented leaders in the agency," Liu said, adding that he learned firsthand how regulatory decisions are made.

Except for the Stanford Law Review "welfare" article, Republicans did not press him on specific education policy matters.

Lui stressed at one point that much of his writing on education would not necessarily come into play if he were confirmed for the 9th Circuit.

"Most of my writings on education and social policy have been directed at policymakers and legislators, not at judges," Liu said.

The 9th Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

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Goodwin H. Liu, a federal appeals court nominee who is drawing criticism from Republicans, has a long record of policy experience in education.

Liu, a law professor at the University of California-Berkeley who was nominated by President Obama to an opening on the U.S. Court of Appeals for the 9th Circuit, in San Francisco, faces a confirmation hearing Friday morning before the Senate Judiciary Committee.

Education Week's Michelle McNeil, in her Politics K-12 blog, pointed out the other day that a bipartisan group of educators and education policy experts have sent a letter to the committee backing Liu's nomination. The letter was signed by, among others, former U.S. Secretary of Education Richard W. Riley and Michael Cohen, as assistant secretary under Riley, on the left. From the right, Liu has won support from Christopher T. Cross, an assistant secretary of education under President George H.W. Bush, and Michael J. Petrilli, an Education Department official under President George W. Bush.

"We do not necessarily agree with all of Professor Liu's views," says the letter. "But we do agree that his record demonstrates the habits of rigorous inquiry, open-mindedness, independence, and intellectual honesty that we want and expect our judges to have."

As The New York Times noted earlier this week, Republicans are criticizing Liu as a potential activist judge and for some of his views about welfare and health care rights.

The Senate Judiciary Committee has posted Liu's lengthy judicial questionnaire, which includes a list of his writings as well as a list of every article in which he as been quoted (including this one by me after the Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District).

The committee has also posted this supplement, which includes many of Liu's writings, including numerous ones on education policy.

As an example, this essay in the Harvard Law & Policy Review is critical of the high court's 2007 Seattle decision, which sharply limited the ability of school districts to take race into account in assigning students to schools.

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A federal appeals court has announced that it will re-examine two panel decisions on whether parodies of school principals created by students on MySpace were protected by the First Amendment.

The full U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, set aside rulings by separate three-judge panels that upheld legal protection for one parody but held that the other had the potential to disrupt school and thus was not protected speech. Some legal observers said the rulings were inconsistent or difficult for lower courts and school administrators to apply. I blogged about the cases, which were both decided Feb. 4, here.

In Layshock v. Hermitage School District, the court considered a student's fake MySpace profile of his principal, which played on the principal's purported interest in "big" things, such as smoking a "big blunt," being a "big steroid freak," having stolen a "big keg," and having been drunk a "big number of times."

The student was disciplined, and he and his parents sued under the free-speech clause of the First Amendment. The 3rd Circuit panel said the parody did not disrupt school and thus the student's discipline violated his speech rights.

In the other case, J.S. v. Blue Mountain School District, a different panel ruled 2-1 that a middle school student's MySpace parody of her principal, which depicted him as a sex addict and a pedophile, had a substantial likelihood of disrupting school, and thus its creator could be disciplined by school officials. The fake profile said the principal had interests such as "being a tight ass," "spending time with my child (who looks like a gorilla)," and "hitting on students and their parents."

"We conclude that the Constitution allows school officials the ability to regulate student speech where, as here, it reaches beyond mere criticism to significantly undermine a school official's authority in challenging his fitness to hold his position by means of baseless, lewd, vulgar, and offensive language," a 2-1 majority in the Blue Mountain case said.

Those opinions were vacated on April 9 by the full 3rd Circuit, which agreed to hear new arguments in both cases. The order in the Hermitage School District case is here, and the one in the Blue Mountain district case is here.

The orders indicate that the cases will be reargued on June 3 at 10 a.m.

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[UPDATED 3:25 P.M.]

U.S. Supreme Court Justice John Paul Stevens today announced his intent to retire at the end of the term after more than 34 years on the court, a tenure that has included participation in his share of education-related cases.

Justice Stevens, who turns 90 on April 20, was nominated by President Gerald R. Ford in 1975 to succeed Justice William O. Douglas.

As an antitrust lawyer and federal appeals court judge before joining the high court, Stevens was perhaps not especially inclined towards a special interest in education cases, at least in his early years on the court. But over 34 years, Stevens has voted for strong separation of church and state in education, for student rights, and in favor of desegregation and other race-based remedies in the schools.

Though Stevens wrote the majority opinion in a few landmark education cases, he was more often an author of concurring or dissenting opinions. Here is a selection of the justice's writing.

Student Searches
Just last term, in Safford Unified School District v. Redding, in which the court held a strip search at school of a 13-year-old to be unconstitutional, Stevens wrote a separate opinion to stress his view that it was a matter "in which clearly established law meets clearly outrageous conduct." He went on to write: "I have long believed that it does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude."

Stevens voted with the dissenters in two cases in which the court upheld drug testing of students in extracurricular sports and other activities. In a landmark 1985 case, New Jersey v. T.L.O., Stevens dissented from the court's decision upholding the search of a high school student's purse that turned up marijuana.

"The schoolroom is the first opportunity most citizens have to experience the power of government," Stevens wrote in his dissent. "Through it passes every citizen and public official, from schoolteachers to policemen and prison guards. The values they learn there, they take with them in life. One of our most cherished ideals is the one contained in the Fourth Amendment: that the government may not intrude on the personal privacy of its citizens without a warrant or compelling circumstance."

Student Speech
In 2007, Stevens wrote the main dissent from the court's decision to uphold the discipline of a student who had displayed a sign with the message "Bong Hits 4 Jesus" at a school event. In his dissent in Morse v. Frederick, Stevens recalled the debates over the wisdom of Prohibition, and said the student's sign, which was treated as promoting drug use, was a minority viewpoint deserving of First Amendment protection. "Even in high school, a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views," Stevens wrote.

In a rare case in which he parted with his liberal colleagues on a student rights issue, Stevens voted with the majority in Hazelwood School District v. Kuhlmeier, in which the court upheld school administrators did not violate the First Amendment rights of students in ordering deletions and other changes to a student newspaper.

In a 1986 case, however, Stevens wrote a dissent from the majority's decision upholding the discipline of a student who had delivered a lewd speech to a student assembly. Stevens said in Bethel School District v. Fraser that while the speech might have been offensive, the student deserved more fair notice of what was prohibited and what discipline he might face. The student "should not be disciplined for speaking frankly in a school assembly if he had no reason to anticipate punitive consequences," Stevens wrote.

Race and Education
The court's 2007 decision sharply limiting the voluntary use of race by school districts in assigning students to schools was the subject of one of Justice Stevens' frequent secondary dissents. While Justice Stephen G. Breyer wrote a lengthy and impassioned dissent from the majority's decision in Parents Involved in Community Schools v. Seattle School District, Stevens added his own six-page dissent, which said there was "a cruel irony" in the majority's reliance on the 1954 Brown v. Board of Education decision. Stevens concluded with these words: "It is my firm conviction that no member of the Court that I joined in 1975 would have agreed with today's decision."

In a 1986 case, Stevens dissented from the court's decision to strike down a school district layoff policy that gave preferential protection to members of certain minority groups as a violation of the 14th Amendment's equal-protection clause.

"In the context of public education, it is quite obvious that a school board may reasonably conclude that an integrated faculty will be able to provide benefits to the student body that could not be provided by an all-white, or nearly all-white, faculty," Stevens wrote in Wygant v. Jackson Board of Education. "It is one thing for a white child to be taught by a white teacher that color, like beauty, is only 'skin deep'; it is far more convincing to experience that truth on a day-to-day basis during the routine, ongoing learning process."

Church and State
In 2002, Justice Stevens joined the dissenters in a 5-4 decision that upheld the Cleveland private school voucher program in a challenge that it violated the First Amendment's prohibition against government establishment of religion. The majority decision in Zelman v. Simmons-Harris was "profoundly misguided," Stevens said in another of his brief secondary dissents. "Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy."

In a 2000 church-state case, Justice Stevens wrote the opinion for the majority striking down a Texas school district's policy of permitting student-led, student-initiated prayers before football games.

"These invocations are authorized by a government policy and take place on government property at government-sponsored school-related events," Stevens wrote in Santa Fe Independent School District v. Doe. "An objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school's seal of approval."

Special Education
In a 1999 case, Cedar Rapids Community School District v. Garret F., Justice Stevens wrote the opinion for a majority that interpreted federal special education law as requiring a school district to provide individual nursing help required by a student with severe medical disabilities to attend school.

The school district and school groups had warned the court that such a broad interpretation of the Individuals with Disabilities Education Act would have severe financial consequences for schools. But in ruling for a student who had required a ventilator since a motorcycle accident had severed his spinal column, Stevens and the majority said the nursing care was a "related service" required by the IDEA.

Describing the boy, Garret Frey, as a "friendly, creative, and intelligent young man," Stevens wrote, "This case is about whether meaningful access to the public schools will be assured, not the level of education that a school must finance once access is attained. It is undisputed that the services at issue must be provided if Garret is to remain in school."

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A Washington State teachers union has agreed to settle the last remnant of a long-running legal battle over non-member "agency" fees that improperly went for political purposes.

The Washington Education Association, an affiliate of the National Education Association, will pay $225,000 to a group of teachers and school district staff members who refused to join the union but must, nevertheless, must pay the agency fees.

At issue was the portion of the fees that went for political purposes in violation of a state law that requires public-employee unions to get non-members' permission before using any of their agency fees on political activities. (Not at issue was the portion of such fees that go for union activities related to collective bargaining, which the non-members properly must pay.)

The controversy goes back to 2000, when the Evergreen Freedom Foundation filed a complaint with the state that the WEA was violating the affirmative-authorization law. This led to a lawsuit by the state in which the union admitted to violations. Separately, the group of non-union education employees sued the WEA to recover the portion of their agency fees that went for political purposes.

The latter case went as far as the U.S. Supreme Court, which ruled in 2007 in Davenport v. Washington Education Association that the state law requiring affirmative authorization did not violate the union's First Amendment rights.

The Supreme Court decision did not totally resolve the cases, however. In December, the WEA agreed to settle the state's case for $735,000.

And this week, the Evergreen Freedom Foundation announced that the WEA had agreed to settle the suit filed on behalf of the non-union employees by the EFF and the National Right to Work Legal Defense Foundation.

The union didn't return a call seeking comment, but the EFF provided a copy of the settlement agreement signed by the WEA's attorney.

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A federal appeals court today upheld the state of Hawaii's efforts to trim 17 days from the school year and furlough teachers to deal with a budget crisis. A legal challenge to those steps had been filed on behalf of students in special education.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled unaninmously that the reductions did not violate the rights of students with disabilities under the main federal special education law.

A group of students charged that the cuts, which closed schools on 17 Fridays, amounted to a change in educational placement that violated the "stay put" provision of the Individuals with Disabilities Education Act.

But the students lost their bid for a preliminary injunction to block the cuts in both a federal district court and in the 9th Circuit.

"Hawaii's furloughs affect all public schools and all students, disabled and nondisabled alike," said the 9th Circuit's opinion in N.D. v. State of Hawaii Department of Education. "An across-the-board reduction of school days such as the one here does not conflict with Congress's intent of protecting disabled children from being singled out."

The court added that special education students might have a case if school districts cut the total number of minutes of instruction, if such instructional time was outlined in an Individualized education program under the IDEA.

"A school district's failure to provide the number of minutes and type of instruction guaranteed in an IEP could support a claim of material failure to implement an IEP," the court said.

Last week, the Hawaii State Teachers Association, which reluctantly agreed to the furlough plan last year, voted in favor of a proposed deal to restore the next school year to 180 days.

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