December 2011 Archives

A federal appeals court has upheld a Pennsylvania school district's attendance-zone plan that took neighborhood racial demographics into account but did not assign individual students based on race.

The three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, unanimously upheld the assignment plan adopted in 2009 by the Lower Merion school district.

The plan for the district's six elementary schools, two middle schools, and two high schools was related to a capital program to modernize the schools and achieve goals such as equalizing the enrollments of the high schools and keep the use of bus transportation to a minimum.

In the plan eventually adopted by the Lower Merion school board, called Plan 3R, the board took neighborhood racial demographics into account in reassigning some 350 students from Lower Merion High School to Harriton High School.

Nine African-American students affected by the new attendance zones, and their parents, sued the district, arguing that the plan's consideration of race violated the 14th Amendment's equal-protection clause.

They lost in both a federal district court and in the Dec. 14 decision of the 3rd Circuit court panel.

"Plan 3R is facially race neutral, assigning students to schools based only on the geographical areas in which they live," Judge Joseph A. Greenaway Jr. wrote for the court in Student Doe 1 v. Lower Merion School District. "The plan, on its face, neither uses racial classification as a factor in student assignment nor distributes any burdens or benefits on the basis of racial classification."

Two judges on the panel said a plan taking only neighborhood racial characteristics into account did not call for "strict scrutiny"—the most demanding level of judicial scrutiny and that usually applied to race-based government action. Instead, they applied "rational basis" review and found that the district had numerous reasons for its plan that were rationally related to a legitimate state interest.

The third judge said she believed strict scrutiny should be applied to considerations of neighborhood racial demographics in drawing student attendance zones. Still, Judge Jane R. Roth said, she would uphold the Lower Merion plan.

"I am convinced that, although racial diversity was an object of Plan 3R, it was not the racial composition of the neighborhoods that was the primary motive for the new assignment plan," Judge Roth said in her concurrence.

Interestingly, the court stopped short of accepting Justice Anthony M. Kennedy's concurring opinion in the U.S. Supreme Court's 2007 decision in Parents Involved in Community Schools v. Seattle School District as controlling for the high court, as many other legal observers have. Justice Kennedy said a race-conscious assignment plan that did not employ racial classifications of students would likely pass strict scrutiny.

"School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means" than the racial classifications at issue in the Seattle case, Justice Kennedy said, including "drawing attendance zones with general recognition of the demographics of neighborhoods."

In the main 3rd Circuit opinion this week, Judge Greenaway said, "Because the Supreme Court has not yet given its imprimatur to the propositions in Justice Kennedy's Seattle concurrence, it is not yet the law of the Supreme Court or binding on this court."

In her concurrence, Judge Roth said, "The conclusion I draw is that, when dealing with race-neutral compelling interests, the concurrent consideration of racial diversity (which of course must be race-based) does not invalidate a plan—but we need further guidance from the Supreme Court on this issue."

The Obama administration backed the school district's plan in a friend-of-the-court brief in the 3rd Circuit. Earlier this month, the federal departments of Education and Justice issued guidance emphasizing the ways in which schools and colleges could legally take race into account in student assignments and admissions, which I blogged about here and wrote about at greater length in this Education Week story.

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A case about Indian trust land granted review this week by the U.S. Supreme Court is being watched closely by a Michigan school district.

In fact, the Wayland Union school district, in southwest Michigan, joined a friend-of-the-court brief urging the justices to take up the case. The reason: The district and other local governments are reaping an unexpected windfall from their share of revenues from an Indian casino built on 147-acre parcel of land held in trust by the federal government for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians.

A Michigan resident who opposes the casino sued the federal government to challenge the land acquisition. David Patchak argues that the federal government's acquisition was unauthorized because the Match-E-Be-Nash-She-Wish Band was not recognized as a tribe at the time of a 1934 federal law on Indian trust lands. (The Band won federal recognition in 1998.)

Patchak lost in federal district court, but the U.S. Court of Appeals for the District of Columbia Circuit, in Washington, revived his suit in a decision last January. A panel of the appeals court said Patchak had standing to challenge the secretary of the Interior's actions to acquire the land in trust for the Indian tribe because of the negative effect of the casino on him and his nearby property.

Both the Indian band, also known as the Gun Lake Tribe, and U.S. Secretary of the Interior Ken L. Salazar appealed the ruling to the Supreme Court, which granted review on Dec. 12 in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak (No. 11-246) and Salazar v. Patchak (No. 11-247).

The $165 million Gun Lake Casino opened in February and, by all accounts, has been highly successful. It created 900 jobs, and under an agreement with the state of Michigan and local governments, it is sharing 2 percent of its slot machine revenues. In its first two months alone, the casino shared $2 million with the state and more than $500,000 with local governments.

The 2,800-student Wayland Union Schools received $195,000 in that first disbursement, the friend-of-the-court brief says. That revenue, and the promise of more, has allowed the district to cut preschool tuition rates by one-third, and to subsidize "pay-to-play" athletic fees that had been $100 per student per sport.

"The Band's shared revenue will eliminate this fee and thus alleviate the financial burden on families of high school athletes," the brief says. Also, the school district is using the new revenue to establish a scholarship fund for graduating seniors "to encourage families to stay in the Wayland area," the brief says.

All these benefits are threatened by the possibility that the litigation will force the removal of the land from Indian trust status, and thus the closure of the casino.

The appeals court's decision "threatens to unravel the tremendous economic benefits generated by the Band's development of the trust lands," the local governments' brief says.

A Cooley Law School professor put it another way in an interview with The Grand Rapids Press. "They could have the world's most expensive bingo hall" if the Indian trust status is removed, Professor Curt Benson told the paper.

The Supreme Court will hear arguments in the consolidated cases in March or April, with a decision expected by the end of June.

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A federal appeals court has reinstated the lawsuit of a New York State teacher who claims she was denied tenure in retaliation for speaking out about alleged school misconduct.

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, held unanimously that one incident involved speech protected by the First Amendment, while a second one did not. The court reinstated the suit and denied qualified immunity to two school administrators.

The facts are somewhat lengthy and messy, so I'll keep them simple here. Nancy L. Nagle was a special education teacher in the Mamaroneck, N.Y., school district in 2007 when she was denied tenure and effectively dismissed.

In one incident, in 2007,Nagle complained that a school administrator allegedly forged her signature on a classroom observation report. Handwriting experts confirmed the forgery, court papers say, and the administrator resigned.

In an earlier incident, while she worked in a Virginia school district during the 2002-03 school year, Nagle reported to her principal that she had heard another teacher verbally abusing children in the classroom. That teacher eventually lost her job and was charged with assault of a student, court papers say.

Nagle contends that when she was recommended for a denial of tenure in Mamaroneck in 2007, school administrators had just learned of the 2002-03 incident, and that, combined with the forged signature incident, resulted in a desire by them to retaliate against her.

The administrators claim another reason for the adverse employment action: That Nagle had violated school protocols several times.

Nagle sued the district and various administrators, but a federal district court ruled against her. It said she did not have First Amendment protection for the two incidents. The forgery incident was not on a matter of public concern, and the earlier report about a fellow teacher's abusive behavior was not protected speech because it violated "reasonable protocols."

In its Dec. 12 opinion in Nagle v. Marron, the 2nd Circuit agreed with the district court on one issue but reversed it on several others.

The panel agreed with the district court that the forgery incident did not implicate a matter of public concern and thus was not protected speech for a public employee such as Nagle.

"The forgery of Nagle's signature, even if such conduct were criminal, had no practical significance to the general public," the court said.

However, Nagle's reporting of alleged abuse by a fellow teacher was protected speech, the court said, and that protection remained in force even several years after the incident. No case law requires public employees to follow employer protocols with respect to protected speech, the panel said. And the speech did not lose its protection because several years had passed, the court said.

The court rejected qualified immunity for two school administrators involved in the denial of tenure to Nagle. They "knew or should have known that retaliation for protected spech would violate an employee's First Amendment rights," the court said.

The 2nd Circuit court remanded the case to the district court for further proceedings.

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The U.S. Supreme Court agreed on Monday to take up Arizona's controversial law cracking down on undocumented immigrants through stronger local police enforcement.

Although Arizona's law does not address school enrollment of undocumented children, the high court's eventual decision may well have implications for the Alabama law that, for now at least, requires schools to check the citizenship status of newly enrolled students.

The court accepted Arizona's appeal of a federal court ruling that blocked its law, known as S.B. 1070, which deals with police, employment, and identification issues..

"The fiscal burdens imposed by the disproportionate impact of illegal immigration on Arizona are daunting," the state argues in its appeal in Arizona v. United States (Case No. 11-182). "Arizona spends several hundred million dollars each year incarcerating criminal aliens and providing education and health care to aliens who entered and reside in the country in violation of federal law."

There are four provisions of S.B. 1070 at issue. One requires the police making a stop or an arrest of an individual to determine that person's immigration status if the officer has "reasonable suspicion" of illegality. Another provision makes it a crime under Arizona law for a person to intentionally fail to obtain and carry legal immigrant papers while in the state. The third makes it a misdemeanor for an undocumented alien to work or apply for a job in the state. And the fourth allows police to detain without a warrant any person the officer reasonably believes has a committed a crime that would subject him or her to deportation.

Two lower federal courts blocked the provisions from taking effect. The Obama administration argued in the Supreme Court that the lower courts ruled correctly and that it would be premature for the justices to take up the Arizona law at this point.

"Several pending cases challenge new immigration-related state laws, and this case was the first to be decided by any court of appeals," U.S. Solicitor General Donald B. Verrilli Jr. said in the administration's brief. "But these state laws are not carbon copies; they take various different approaches to the subjects S.B. 1070 addresses, and they address numerous other subjects that this preliminary injunction does not, such as housing, contracting, education, and transportation."

In both the Arizona and Alabama cases (as well as in cases involving other states' laws), the administration argues that the state immigration measures are "pre-empted" by federal law. (The administration's legal arguments against the Alabama law, including its school provision, can be found here, and I blogged on it here.)

The challenged Arizona provisions "do not represent an effort to cooperate with the federal government in enforcing federal immigration law," Verrilli said in the brief. "Instead, they are designed to establish Arizona's own immigration policy, 'attrition through enforcement.'"

The Supreme Court will likely hear arguments in the case in April, with a decision by the end of June. Justice Elena Kagan is not participating in the case, evidently because she had some involvement in it while she was solicitor general early in the Obama administration

With only eight justices particiipating, a 4-4 tie would mean the lower court rulings blocking the provisions would be undisturbed, though further legal proceedings would ensue on the merits of the state law.

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A federal appeals court has ruled against an Idaho teacher who was dismissed after she let her teaching certificate lapse, despite her claim that a mental disability kept her from completing college coursework necessary for the re-certification.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled unanimously to uphold the Boundary County school district's non-renewal of special education teacher Trish Johnson.

The majority said Johnson was not "qualified" within the meaning of the Americans with Disabilities Act of 1990 because she had failed to satisfy the prerequisites of the job by not having a valid teaching certificate.

Johnson had what court papers describe as a "major depressive episode" during the summer of 2007, just before her certification was to expire, and thus she did not complete college courses necessary for renewing her certificate. She sought to have the school district apply for a one-year provisional certificate on her behalf, but the school board refused.

The board chairmwoman said at the time that Johnson's request was denied because she had five years to accumulate the required three hours of college credits but waited until just before her certification was to expire to seek the special accommodation. Johnson was terminated and her job was filled by a certificated teacher.

Johnson sued on various claims, including under the ADA and the federal Rehabilitation Act of 1973. The sole issue before the 9th Circuit was whether she was a qualified individual with a disability under the ADA who merited an accommodation by the school board.

The federal Equal Employment Opportunity Commission took the teacher's side in the case, arguing in a brief that "selection criteria that are related to an essential function of the job may not be used to exclude an individual with a disability if that individual could satisfy the criteria with the provision of a reasonable accommodation."

In its Dec. 8 decision in Johnson v. Board of Trustees of the Boundary County School District, the 9th Circuit court majority rejected the arguments of the teacher and the EEOC.

Judge Diarmuid F. O'Scannlain said that barring a job prerequisite that itself has a discriminatory effect, which was not the case here, "the default rule remains that the obligation to make reasonable accommodation is owed only to an individual with a disability who satisfies all the skill, experience, education and other job-related selection criteria."

Judge Richard A. Paez concurred in the outcome, but said the EEOC's own interpretation of its guidance in this area deserved more deference.

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The U.S. Supreme Court declined to hear the appeal of a small church that has battled the New York City school system for 17 years over the right to use a school facility for weekend worship services.

A federal appeals court in June upheld the school system's rule that bars the use of public schools for such religious events, holding that the rule does not violate the First Amendment rights of a Christian church known as the Bronx Household of Faith.

The justices on Monday declined to hear the church's appeal in Bronx Household of Faith v. Board of Education of the City of New York (Case No. 11-386).

The controversy between the congregation and the school district has been raging since 1994. In the first lawsuit, both a federal district court and the U.S. Court of Appeals for the 2nd Circuit upheld the school system's refusal to rent a school to the church, and the U.S. Supreme Court declined to review the case in 1998.

Later, the church was prompted to try again after the Supreme Court's 2001 ruling in Good News Club v. Milford Central School. In Good News, the high court held that it was unconstitutional for a school district to bar a private Christian group from after-school use of its facilities when it opened them to a wide range of other community uses.
 
In 2002, Bronx Household of Faith was granted an injunction allowing it to use Public School 15 for its Sunday worship services, and it has been doing so since then while its second legal challenge has proceeded on the merits. The school system now defends its efforts to deny access based on a 2007 rule that prohibits using school buildings for worship services.

A federal district court granted a permanent injunction allowing the church to conduct its services. But in a 2-1 ruling on June 2, a 2nd Circuit panel ruled for the school system. The majority said the school system had valid, non-viewpoint discriminatory reasons for barring worship services even when it allowed certain other religious activities in its facilities.

"The board could ... reasonably worry that the regular, long-term conversion of schools into state-subsidized churches on Sundays would violate the Establishment Clause by reason of public perception of endorsement," said the 2nd Circuit majority. "A worship service is an act of organized religion that consecrates the place in which it is performed, making it a church. ... Bronx Household and the other churches that have been allowed access under the injunction tend to dominate the schools on the day they use them."
 
Writing in dissent, U.S. Circuit Judge John M. Walker Jr. said the school system's rule against allowing religious worship services "is impermissible viewpoint discrimination against protected speech and is unsupported by a compelling state interest."

Walker said the majority's ruling could not be squared with Supreme Court decisions on religious viewpoint discrimination, and he said the case presented "important doctrinal considerations worthy of the Supreme Court's attention."

The Bronx Household of Faith's appeal to the Supreme Court was backed by religious freedom groups such as the Alliance Defense Fund and the Becket Fund for Religious Liberty. The church's Sunday services are attended by 85-100 people each week, court papers say.

The church noted in its appeal that a number of groups that are permitted to use New York City school buildings engage in "expressive" uses that are similar to religion, including rituals, recitations, moral teachings, songs, and meals. The groups include the Boy Scouts, Girl Scouts, adult education programs, and a Hebrew Institute's youth basketball program, court papers say.

Because of the 2nd Circuit court's ruling, the appeal said, "the church now faces expulsion from the forum it has used for nine years on equal terms with other community groups."

The Supreme Court's refusal to take up the appeal, with Justice Sonia Sotomayor not participating in the action, was not a ruling on the merits. But it means the injunction allowing the church to use the school facility will soon be withdrawn and the church will be looking for a new location for its worship services.

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The Obama administration has issued guidance stressing the ways schools and colleges may legally take race into account in making student assignment and admissions decisions.

Education Week's Lesli Maxwell has the story here at the paper's main news blog, Politics K-12.

The guidance was issued Dec. 2 by the Department of Justice and the Department of Education, and it replaces a less flexible interpretation of U.S. Supreme Court decisions in this area made by President George W. Bush's administration in August 2008.

The guidance includes a "dear colleague" letter signed by Russlyn Ali, the Education Department's assistant secretary for civil rights, and Thomas E. Perez, the assistant attorney general in charge of the Justice Department's civil rights division. There are separate guidance documents for K-12 schools (HTML or PDF) and for colleges and universities (HTML or PDF). Their advice is based on what administration officials believe is permitted under the Supreme Court's decisions in Parents Involved in Community Schools v. Seattle School District, in 2007, and Grutter v. Bollinger and Gratz v. Bollinger, in 2003.

The Obama administration has released the guidance just as the Supreme Court is weighing whether to take up a case involving the consideration of race in admissions at the University of Texas. In Fisher v. University of Texas at Austin, a white student who was denied admission is challenging the university's return to using race in some admissions decisions after the high court's Grutter decision.

The Supreme Court has asked Texas for a response to the appeal, which is due Dec. 7. That means the court would likely decide sometime early in the new year whether to grant full review of the case.

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The Obama administration is urging the U.S. Supreme Court not to take up an appeal from a school district ordered to provide compensatory tutoring because it failed to identify a student's disability.

The justices had asked the U.S. solicitor general's office for its views last April on a question under the federal Individuals with Disabilities Education Act: whether a parent may bring a claim in a due-process hearing that a district violated the law's "child-find" provision.

That provision requires that all children with disabilities who are in need of special education services be identified, located, and evaluated.

The case involves an appeal from the Compton Unified School District, in California. The district appealed lower court rulings that a mother had a valid legal claim under the IDEA that the district had failed to identify her daughter's disabilities.

According to court papers, when the student was in 10th grade, her teachers became concerned that her work was "gibberish and incomprehensible" and that she had failed every class. The school district referred the girl to a mental health counselor, who recommended that the student be evaluated for learning disabilities. The district did not follow the recommendation, and it promoted the girl to the 11th grade.

The mother later made a request for an individualized education program for her daughter, and the district determined that the girl was eligible for special education services for a learning disability.

The mother brought an administrative claim under the IDEA, arguing that the school district failed under the law's "child-find" requirement to identify the girl's disabilities sooner. An administrative law judge largely sided with the family, ordering as much as 150 hours of compensatory tutoring for the girl's lost educational opportunities.

The school district appealed in Compton Unified School District v. Addison (Case No. 10-886).

The justices sought the views of the United States, and in a brief filed Nov. 18, U.S. Solicitor General Donald B. Verrilli Jr. said the court should not take up the school district's appeal for several reasons.

First, Verrilli said an administrative-law judge conducting a due-process hearing under the federal special education law has the authority to consider claims that a district violated the "child find" requirement.

Verrilli said the Compton district is mistaken to argue that the provision covers only a school district's refusal to act to identify eligible children, not its failure to act.

Second, the solicitor general said a 2010 ruling by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, does not conflict with other federal appeals courts on the issue.

Finally, Verrilli said the Compton case would make a poor vehicle for deciding the issue. The case does not really present the issue that districts would be subject to a form of "educational malpractice" claim, as Compton contends.

"Whether or not parents are permitted to initiate due process procedures for violation of the child-find requirements, school districts already are subject to claims that their educational decisions fail to comply with the IDEA," the solicitor general said.

Now that the solicitor general has chimed in, the justices have put the case on the agenda for their Jan. 6 private conference for possible action.

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