Top 10 education news and trends of 2009

Greta’s Note: Thank you for your interest and support for law and education, and I hope to talk to you in the new year!

Goodbye, 2009!

10. New technological innovations such as e-textbooks, tutoring software, virtual schools and distance learning, and student performance-tracking programs are helping students learn better and changing the dynamics of the student-teacher relationship.  Their widespread use, however, still lie in the future.

9. “Merit pay” and “accountability” are the buzzwords once again as state legislatures rush to eliminate barriers to link student performance and teacher evaluation in order to comply with requirements for the Race to the Top funding.

8. Chicago and other school districts around the country begin to use socio-economic data instead of race in an effort to integrate their public schools after a 2007 Supreme Court ruling that prohibited schools from using race as a factor in school assignment.

7. Education schools came under criticism, including from Education Secretary Arne Duncan, for lack of standards and rigorous methodology.

6. In a year where the courts showed much judicial restraint and deferred to the school board on education issues, the Supreme Court decided in Safford v. Redding that the strip search of a 13-year-old girl on suspicion that she had prescription-strength ibuprofen violated the Fourth Amendment.

5. Hard-hit by the economy, states across the nation cut educational funding.  Universities respond by freezing salaries, implementing hiring caps, halting construction projects, cutting services, laying off staff, and raising tuition.

4. Congress considered reform to student loans but wavers on more decisive and drastic changes to the existing structure.

3. The economic downturn drive students away from 4-year private colleges in 2009 while community colleges experienced the highest enrollment in years.  Some become so crowded that administrators devise creative ways to accommodate students, such as 2 a.m. classes.

2. NAEP scores stagnate and disappoint educators, raising fears that the U.S. will not meet achievement goals set by President Bush and No Child Left Behind.  Racial achievement gap also appears to be firmly in place.

1. President Obama and Secretary of Education Arne Duncan announced Race to the Top program that will distribute a total of $4.35 billion to states with the best school reform proposals.  Educators hope that the program would help states shape and implement wide-ranging reform measures in their public schools.

Religious speech in school: religion or speech?

Thou shalt not preach.

My previous post discusses the tension between the Establishment Clause and the Free-Exercise Clause in the First Amendment.  In the school context, much of the tension centers on what public school educators can or cannot do.  But a couple of recent cases involving religious speech demonstrate that the tension exists for students as well.

Unlike with teachers, who are state employees, student religious speech normally does not trigger the Establishment Clause concern that the state is endorsing an official religion.  Nonetheless, in recent years, controversies and lawsuits have sprung up around the country concerning whether schools may prevent students from reciting prayers, singing religious hymns, or offering other expressions of religion at school-sponsored events.  In nearly all of these cases, courts have upheld the powers of the schools to regulate student conduct. 

Some of the cases seem almost comically petty.  A Wisconsin student who planned to sing a hymn at graduation was told, for example, that she would have to use “he,” “him,” or “his,” instead of “God” in the lyrics.  A New Jersey school district banned religious music entirely at the school holiday concert, a decision challenged by parents but upheld by the 3rd circuit.

A pair of cases about graduation speeches have received a lot of media attention, and both were recently denied cert by the Supreme Court.  In McComb v. Crehan, a Las Vegas high school valedictorian sought to use her valedictory speech to discuss how her christian faith helped her to succeed in school.  The school nixed portions of her draft speech as “proselytizing.”  Brittany McComb decided to deliver the speech anyway, and the school turned off her microphone at graduation.  McComb then brought suit against the school district, alleging a violation of her First Amendment rights.

A district court in Nevada denied the school’s motion to dismiss the case based on the pleadings, essentially ruling that McComb could go forward on her suit.  But the 9th Circuit reversed and upheld the school’s actions.

In a similar case, Colorado valedictorian Erica Corder also veered from her prepared text into proselytization of her Christian faith.  She actually succeeded in delivering the entire speech.  But the school principal refused to grant her diploma until she wrote a letter acknowledging that the speech was her personal view.  Corder’s suit against the school district, therefore, dealt not only with unlawfully censored speech but also unlawfully compelled speech.  The suit has been similarly dismissed by the 10th Circuit.

Although the two circuit courts reached the same results, they rested their reasoning on different grounds: one primarily on religion, and the other primarily on speech.  This highlights a problem with student religious speech in school — should it be analyzed under the Establishment Clause rubric, or the Free Speech Clause?

In the 9th Circuit, the issue was analyzed as one of religion, perhaps in part because there is clear caselaw that students have no right to proselytize in a school-sponsored event.  Neither party disputed that the school officials had the power to control and censor student speech in such a setting.  The main issues were factual: whether the student speech was in fact proselytizing and whether the school official retained primary control over the graduation speech.

The 10th Circuit, however, did not have such clear precedents, and instead rested its ruling on an analysis of prior Supreme Court student free-speech cases.  In doing so, the 10th Circuit ruling nearly completely ignores the “religion” aspect of the case and treats the student’s religious speech as any other types of speech.

Although the 10th Circuit arrives at the same conclusion as the 9th Circuit, such an approach has its risks. Student speech cases typically rely on a kind of in loco parentis authority that the school has to regulate behavior of the students in order to satisfy educational and disciplinary goals.  In its opinion, the 10th Circuit strained to explain what type of “educational” goals the school achieved by censoring religious speech.

The fact of the matter is, a school’s decision to censor religious speech is not the same as its decision to censor sexual, or lewd, or incendiary speech.  It should not rest on a discretionary judgment about the consequences of the speech, but should stem from a legitimate concern that such speech may be seen as endorsed by the school in violation of the Establishment Clause.

Thus, prohibiting this type of speech, at least in a school-sponsored event where schools retain primary control of the content, is not optional and a judgment call, it is constitutionally required.  Religious speech in school is not just speech, it is religion.

The God problem with the Pledge of Allegiance

Freely choosing to pledge?

Ten-year-old Will Phillips refused to say the Pledge of Allegiance on the ground that we as a country still discriminate against gays and lesbians, and therefore do not have “freedom and justice for all.”  (See his adorable CNN interview here.)  Phillips did not mention this, but another portion of the Pledge of Allegiance seems far more problematic to me.  It is the portion that declares that the United States is “one nation, under God.”

The original Pledge did not include the phrase “under God.”  That phrase was officially added in 1954 by Congress and approved by Eisenhower after intense lobbying by the Knights of Columbus and several prominent clergymen.  Although the Supreme Court had ruled in 1943 in the case of West Virginia State Board of Education v. Barnette that public school children could not be compelled to say the Pledge of Allegiance, the Court rested its ruling on the freedom of expression prong of the First Amendment (after all, the phrase “under God” was not yet incorporated into the Pledge in 1943).  The Barnette opinion also did not prohibit the Pledge from being said in public schools.  Therefore, the Pledge, even after the inclusion of the phrase “under God,” remained an “optional” part of most school children’s morning ritual.

As might be expected, the phrase has been the subject of much controversy, protest, and litigation.  In 2004, the Supreme Court heard a suit brought by Michael Newdow, an atheist and attorney who objected on behalf of his daughter to the inclusion of the phrase in the Pledge.  The 9th Circuit sided with Newdow and ruled that the phrase endorsed religion and therefore violated the Establishment Clause, but the Supreme Court dodged the issue by dismissing the case on a procedural ground.  Newdow, it found, had no standing to bring the suit because he was not a custodial parent of his daughter.

A new round of lawsuit is being brought in California, this time by three families who are represented by Newdow and who presumably do not have the standing problem.  A district court in California has ruled that the Pledge does violate the Constitution.  The case, styled Newdow v. Carey, was argued before the 9th Circuit in 2007 and is awaiting judgment.  (Hear the recording of the oral arguments here.)  Whatever the judgment, it is certain that the case will petition for certiorari.

Conservative members of Congress are concerned enough about the possibility that the Supreme Court would side with Newdow that a bill passed the House in 2005 that would strip the Supreme Court and most federal courts of jurisdiction to consider the issue.  The bill died when the Senate declined to take up the issue.

The supporters of the Pledge are in a curious position.  On the one hand, they argue that the voluntary recitation of the Pledge does not violate the Establishment Clause because the recitation is mainly a “patriotic exercise,” and that any mention of God is merely incidental and only raised for historical reasons.  (The attorney for the government, for example, argued at one point during oral argument that God is not a religious figure, to the puzzlement of Judge Reinhardt.)

But the ardent refusal by the school district to take the phrase out of the Pledge, and the anger and disdain expressed against Newdow and his supporters during the lawsuit (Newdow received quite a few death threats), belie the argument that any mention of God in the Pledge is merely incidental.  Most proponents of the inclusion of the phrase, unsurprisingly, take the belief that we are a nation “under God” quite seriously.

Finally, does the voluntariness of the recitation of the Pledge save its constitutionality? I think the reaction of some of Phillips’s classmates in the past week counters that argument quite nicely.  Is it coercive to begin each day by asking impressionable young children to stand up in a roomful of other children and declare their loyalty to the flag while also affirming that the nation is, in fact, “under God?”  How many times does Phillips have to be called ugly names to prove that, yes, it is?

Light and untruth at Yale

lux et veritas

Lux et nonveritas?

It is not a good year for Yale.  First, its endowment dropped 30%, about $1 billion more than projected.  Now it is being sued for $50 million by a major private Korean university.  Dongguk University, a 103-year-old Buddhist institution, has filed a lawsuit against Yale, alleging negligence, recklessness, and defamation after Yale officials mistakenly identified a Dongguk professor as having received a Ph.D. from Yale.

In what has become known in the media as “Shingate,” Shin Jeong-ah, a Dongguk art professor, forged a certificate from Yale to get a job at Dongguk in 2005.  After questions about her credentials arose, Dongguk sent a letter to Yale asking for authentication on a document that Shin provided, which bore the signature of a Yale official and stated that Shin had received a Ph.D. from Yale.  The document was a fake, but the Yale official whose name appeared in the document confirmed its authenticity, apparently without checking Yale records.

After more inquiries from Dongguk, Yale finally investigated and then announced in 2007 that Shin did not receive a degree from Yale.  It denied at first, however, about having received the first inquiry in 2005.  Yale did not acknowledge its mistake until later that year and issued a letter of apology.  Shin eventually resigned and was convicted of falsifying records and of embezzlement.

Gongguk then brought suit against Yale in the federal district court of Connecticut, claiming that Yale’s mistake and negligence had damaged Gongguk’s reputation and resulted in loss contributions. The court rejected Yale’s effort to dismiss the suit in June.

What caught my eyes about this lawsuit is not just the fact that Yale is my alma mater, but because the suit highlights an oft-overlooked function of our higher education institutions.  When we think about the role of a university, we often think of it as either “the producer of knowledge” or as the educator of its students (though, as I pointed out in previous posts, universities that actually produce knowledge are fairly rare).  We often forget a third and equally important social function of the university — evaluating our youths, judging their competence, sorting them into various categories, and stamping them with grades and a degree.

Admittedly, grades and degrees are not everything, and their importance in a person’s career decrease with time.  But they are not nothing.  For better or for worse, our society — employers, schools, consumers, and the general public — rely on information about a person’s educational history and performance in school as tools to judge someone’s intelligence and ability.  In many cases, such as in the case of Ms. Shin, these credentials are the prerequisite for receiving benefits and opportunities.

It seems remarkable then that this important social function of our universities are largely self-regulated.  There is some oversight for the admissions process — the freedom of a public university to admit and reject students is somewhat limited by racial discrimination laws.  (For private universities, the incentive against racial discrimination comes largely from requirements attached to receiving federal funding and the tax exemption status.)  But once students enter the college gates, the evaluative function of the university is largely unsupervised due to the academic abstention doctrine.  At least theoretically, a professor can grade papers by throwing them down the stairs and assign letter grades based on where the paper lands, and a student has no legal recourse if the university refuses to act.

The lack of legal recourses for students implies that the university has no legal duty towards them to provide a fair, impartial, and non-arbitrary evaluation process.  As a society, we trust the universities themselves to perform this self-regulation.  This trust — whatever its roots are — has deep roots in the legal community.  Lawsuits against schools over alleged unfair grading policies have been largely unsuccessful.

The Dongguk lawsuit challenges this notion from another angle.  At issue is not the responsibility of the university towards its students, but towards third parties who might rely on the university’s representation about its students (or, in this case, its non-student).  The logic, if extended, could create legal duties in other situations.  Could an employer prevail in a suit against a university for sloppy record-keeping that mistakenly identified a C-student as an A-student?  Could a scholarship committee prevail in a suit against a college or university after discovering that the high grades of an award recipient resulted from random or arbitrary grading practices?

Realistically speaking, the chances of the Dongguk suit actually going to trial is slim.  The strong rhetoric from both parties reflect attempts to stake out better negotiation positions that would lead to a favorable settlement.  The suit would probably never result in precedent-setting law or any real duties on the part of the university.  But alas, one can dream.

The costs of academic freedom

What price liberty?

What price liberty?

Say what you want about Stanley Fish, the professor knows how to write a provocative essay.  In “The Rise and Fall of Academic Abstention“, published in the New York Times today, Fish laments what he believes to be an erosion of academic freedom by the meddling courts.  He argues that, although courts have traditionally practiced “academic abstention,” or deferring to the professional judgment of universities and colleges in academic matters, the doctrine has been declining in recent years.  Instead, courts have been inserting themselves into the middle of academic disputes with increasing frequency and boldness.

Fish then proceeded to rattle off a few especially egregious cases of this insertion: an incompetent medical student being awarded millions in lost income for being denied a degree by the medical school, a professor denied tenure successfully suing the school for visiting his class only once when the faculty handbook promised multiple visits, and so on.

Fish acknowledges that given the practical realities, we need to find a “balance point between the value of accountability through the courts and the value of limiting intrusion on the autonomy of academic communities.”  But he seems to be nostalgic for the days when courts did not monitor any academic processes and left the matter entirely to the discretion of the universities.  “Those were the days,” he said, “and they have their injustices as well as their advantages.”

Though there is much I disagree with about the essay, it addresses an important question: what role should the courts play in monitoring academic processes and ensuring fairness in school?  Fish answers that the courts should play an extremely minimal role in “academic matters.”  In matters where professional judgment is required, such as “promotions, curricula, admission policies, grading, tenure, etc.,” courts should respect academic freedom and not substitute their own judgment for that of the university.

“Academic freedom” has a pleasant ring to it.  But whenever I hear the word “freedom,” I wonder: at whose expense is this freedom being asserted?  Fish talks of balancing “accountability” with academic freedom.  The word “accountability” conveniently lacks an object.  Accountability to whom?  To the government?  To the public?  To the judges?

The answer becomes clearer when we consider what freedom means.  The philosopher John Finnis has some useful analysis here.  Employing a distinction first written about by legal scholar W.H. Hohfeld, Finnis points out that liberty to do X means the absence of duty to do “not-X”, which in turns means that no one has a right (or “claim-right”, as Hohfeld called it) to force one not to do X.  If Amy has the “liberty” to do something, say order a hamburger, she does not have a duty to not order a hamburger, which means that Betty, or Cathy, or Zina, has no right to force Amy not to order a hamburger.

The thing to notice about this is that as long as there is more than one agent in the world, liberty is a relational concept, and it comes at the expense of someone else’s rights.  When liberty expands, it means that someone else’s rights diminish.  If Amy has the freedom to eat what she wants, it means that others have no right to tell her what to eat.

In the case of the university, there are many parties who might conceivably have rights vis-a-vis the university. Some of these rights will concern academic matters.  Students might expect fair admissions, grading, and disciplinary procedures. Employees expect non-discriminatory, sensible, and just employment and termination processes.  The public, whose tax dollars might support a portion of the university funding, expect transparency in the budget and rationality in the use of the funds.

When “academic freedom” is used to shield the university and its officials from scrutiny and liability, this assertion of freedom comes at the expense of diminishing the rights of these other parties.  So the trade-off is not exactly one of “accountability” and “freedom,” whatever that means, it is about limiting the rights of the individuals who interact with the university in favor of the university’s asserted freedoms.

Seen in this light, the idea of academic freedom seems more disturbing.  Perhaps each of us have a different idea of where to draw the line between the university’s freedoms and the rights of those that interact with it, but we must be clear that this is in fact the trade-off we are making every time.

Related post: Is nothing sacred?

Pushing the limit of “deliberate indifference”

LonelyBoyWhen is a school liable for student-on-student bullying? The standard laid down by the Supreme Court in Davis v. Monroe County Board of Education is whether the school has shown “deliberate indifference.” In Davis, the Court held that a school is liable for damages if it failed to respond to known acts of severe student-on-student harassment, thereby creating an environment that denies the victim equal access to education.

The Supreme Court justified the doctrine of deliberate indifference by referring to the doctrine of in loco parentis, noting that the school has “substantial control over the context in which the harassment occurs,” and that “the nature of the State’s power over schoolchildren is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.” As my post on in loco parentis noted, the power of the school to exercise control over its students comes with a duty to ensure safety, health, and an effective learning environment.

The school officials in Davis were obviously “deliberately indifferent” because they totally failed to respond to a female student’s complaint of sexual harassment by another student. But in reality, deference to the judgment and discretion of school officials has meant that in cases where school officials addressed the student complaint, courts are unlikely to question the adequacy of that response and find deliberate indifference.

But recently, a case has pushed the boundaries of what “deliberate indifference” means. [Full disclosure: I worked on the case briefly and tangentially last year.] Like other cases that involve bullying, the case of Patterson v. Hudson Area Schools is a disturbing and sad one. For three years, the plaintiff DP’s life in school was a nightmare. Beginning in 2002, while he was in 6th grade, classmates began taunting him, calling him “faggot” and “queer” and pushing him into lockers. DP reported some of the incidents and began psychiatric counseling, but the taunting escalated in 7th grade. DP’s grades suffered, and he became withdrawn and depressed.

Things briefly improved in 8th grade with the help of a compassionate special-education teacher, but worsened again in 9th grade, after DP began high school and no longer had access to the teacher. The harassment of DP escalated again. In addition to name-calling, students wrote insulting phrases about DP on note cards and showed them during a presentation in class, defaced DP’s planner with sexual phrases and drawings, and vandalized his school locker. Some students also broke into DP’s gym locker, removed his clothes and urinated on them, then threw his shoes into the toilet.

The school punished each of the identified students responsible for the harassment. The individual harassers who were punished never bothered DP again. But some harassers, such as those who defaced DP’s lockers on the two occasions,were never identified. In the meanwhile, the harassment continued, and finally culminated in a sexual assault by a student against DP in May, 2005. DP’s attacker was suspended and ultimately expelled permanently from the school system.

After the attack, DP refused to set foot in his high school again. His school allowed him to receive instruction off the school grounds in another building, and later to attend college courses to satisfy his high school requirements. DP graduated high school early. In 2005, his parents filed suit against the school district.

DP’s parents alleged that the school violated Title IX of the Education Amendments of 1972 by showing “deliberate indifference” to DP’s reported harassment complaints. The question came down to whether the school’s responses were reasonable under the circumstances as a matter of law. The school argued that it had punished each of the identifiable perpetuators who harassed DP, and that the punishment was effective at least as to the individual harassers. The school also pointed to its attempts to help DP by providing him with counseling, one-on-one meetings with the principal, a special-education teacher, and extensive accommodations after his sexual assault.

The district court agreed with the school’s argument and granted summary judgment against DP’s parents. But the Sixth Circuit reversed, finding that the school’s response to the pattern of harassment was not reasonable. The court reasoned that, although the school effectively punished individual perpetuators, the real problem that DP faced was not any isolated incident but a pattern of pervasive and persistent harassment and an environment of hostility. When it became clear that the standard responses were not working to stem the harassment, the school had a duty to do more.

Here, the opinion was treading on thin ice. Unlike in Davis, the Hudson Area Schools officials did not sit idly by while a student was being harassed. They tried to help him, but their efforts failed. There simply isn’t a lot of case law that supported the contention that what the district did here was inadequate or unreasonable. The majority opinion cited an out-of-circuit district court case extensively, a fact that was ridiculed by the dissent. The majority was also silent on the obvious question of what else could the school administrators have done.

Patterson represents the broadest interpretation of “deliberate indifference” that a circuit court has made to date. Last week, the Supreme Court denied certiorari to the case, which means that the Sixth Circuit decision stands, at least for now.

Yet, despite all that is unsatisfying about the case, I believe that Patterson is a positive development. First, the case makes sense doctrinally, even if it goes beyond what “deliberate indifference” has been interpreted to mean in other school cases and in other contexts, such as employment law. The decision tracks the trend of expansion of school powers into many areas of student life, not the least of which are rights involving free speech and search-and-seizure. With the broadening of school authority and the increase in the school’s ability to control its students should come a corresponding broadening of the school’s responsibilities. As I discussed above, the Davis Court itself has linked its justification for the doctrine of deliberate indifference with the control that a school exercises over the school environment. DP loses a lot of rights when he walks into that schoolhouse. In exchange, he should receive a lot more protection.

Second, and more important, this ruling, if it is followed, will encourage school officials to look beyond rote and often ineffective responses to bullying to look for more creative and effective solutions. As DP’s case illustrates, bullying is a devastating phenomenon with complex social and psychological roots. School officials should not be automatically shielded from liability just by resorting to solutions that have been shown to be ineffective. DP deserves educators who are actually not “deliberately indifferent.”

“Give me due process or give me . . . ?”

grade f

The Fall 2009 issue of Education Next contains a fascinating summary of a study of the trends in appellate and Supreme Court decisions involving student due process rights.  The summary contains a lot of interesting information and is well worth reading.  For me, the most thought-provoking part of the study is the finding that there is quite a bit of disparity between student and teacher perception of student rights and the reality of court decisions.

The two authors of the study, Richard Arum and Doreet Preiss, showed that a significant percentage of students have erroneously assumed that students in fact have “formal due process protections not only for major disciplinary actions but for minor day-to-day disciplines.”  The examples for “minor disciplines” include lowering a student’s grades for disciplinary reasons, suspension from extracurricular activities, or in-school suspension.  Interestingly, about the same percentage of educators surveyed believe the same.  Indeed, half of the public school teachers surveyed responded that lowering a student’s grade for disciplinary reasons was prohibited.

As Arum and Preiss noted, these beliefs are by and large false.  Courts have simply not extended those types of due process protection to students for such “minor” disciplinary actions.

What to make of this disparity?  The obvious one is that these students (and educators) are simply wrong and should be educated to bring their understanding in line with the existing state of the law.  Another perspective, however, is that the courts are out of touch with a significant section of the public (though, to be fair, not the majority of the public.  The study puts the percentage of students and educator who hold the erroneous beliefs to be between 32 to 36%.), and ought to recognize  and protect student rights more expansively.

But there is also a third possibility.  Perhaps courts are in fact reaching an optimal decision, recognizing that enforcing a more expansive notion of students rights through legal means is undesirable and unworkable, and that the status quo, where school administrators are left to their sound discretion regarding minor disciplinary matters, is preferable, with the caveat that such discretion, in reality, is already tampered with a belief that students deserve certain due process protections. Such public mores and sentiments may make it unnecessary, absent really flagrant infractions, for courts to aggressively define and enforce rights in certain areas.

Or, perhaps it is the other way around.  Courts are not so wise as I have painted in the picture above.  They are simply, for whatever reason, behind the times and stubbornly refusing to acknowledge the rights that many think are due.  But all is not lost.  Where courts are unwilling to recognize rights, and where the public actually believes that certain rights should be protected, the gap left by the court will simply be filled by social mores and the “court of public opinion.”  These rights, of course, are legally supererogatory and essentially unenforceable in court, but if the disciplinarians themselves believe that certain forms of disciplines are not allowed (when in fact they are), we will probably see very little of that disclipine in action.  This is perhaps why in reality very few educators will change a grade for disciplinary reasons.