Articles from November, 2004

Good facts, bad law: Supreme Court hears Title IX case today

The Supreme Court hears oral arguments today in a school case from Alabama that has implications for school boards and other educational institutions nationwide. The issue is whether Congress intended to give people the right to sue a school or university under Title IX when they allege that they suffered retaliation for complaining about discrimination against others. Title IX prohibits gender-based discrimination in educational programs that receive federal funding.

Just the facts
Here are accounts from Education Week and Nina Totenberg of NPR. The nutshell: Roderick Jackson, a teacher and girls basketball coach in Birmingham, Ala., says that when he complained that his team was getting short-changed compared to the school’s boys’ team, he started getting bad evaluations and was removed as coach. He brought a Title IX lawsuit, but both the federal district court and the Eleventh Circuit Court of Appeals ruled that Title IX does not allow a lawsuit for retaliation, especially by a third party who was not the victim of the alleged gender discrimination.

At this point only Mr. Jackson’s version of events is out there, since if the Court rules in his favor and allows the case to go to trial, the disputed facts will be contested in the litigation back in the lower court. The rule at this stage in a trial is that the court has to assume for the sake of argument that the plaintiff’s allegations are true, so that’s the version you’re reading in the press. And, if that version is true, it’s a pretty sympathetic one for the teacher. We all love a story like this, and the news media know it: An underdog takes a principled stand for disadvantaged kids, the system comes down on him, but he won’t back down.

The law
Even assuming all of these allegations are true, however, this is another of those situations where, as the lawyers say, good facts make for bad law. Here’s NSBA’s press statement on the case. NSBA’s brief to the Court argues that courts should not read between the lines in laws like Title IX to divine Congressional intent, that this kind of lawsuit simply is not necessary to realize the goal of Title IX, and that allowing this kind of lawsuit will have negative consequences for schools. Joining the brief are the Alabama Association of School Boards , the American Association of School Administrators, the American Association of Presidents of Independent Colleges and Universities, and the Association of Southern Baptist Colleges and Schools.

The big guns have come out for the other side. Arguing Mr. Jackson’s case is Walter Dellinger, former Solicitor General of the U.S., who was brought in by the National Women’s Law Center. Also advocating an expansive reading of Title IX are the Bush administration, which will argue the case as well, and the National Education Association (NEA). This New York Times editorial is a faithful recitation of their arguments, some of which we want to address here.

First, this case is not about, as this article on the Florida newspaper site TCPalm.com puts it, “whether coaches of girls’ sports teams can gripe about second-class treatment from their schools without fear of losing their jobs.” Mr. Jackson was not dismissed as a teacher, only as a coach. And, as every school board member, school lawyer, and school administrator is all too aware, teachers have a formidable arsenal of legal protections against actions by their employers. Mr. Jackson could have sued under the First Amendment for his right to speak out on a matter of public concern, for example. Just because Title IX doesn’t address retaliation doesn’t mean the laundry list of other protections don’t either.

Mr. Jackson also could have called the U.S. Department of Education’s hotline and spared everyone the trouble and expense of a lawsuit. If there really is a problem, schools can lose their federal funding for refusing to fix it, and they’ll respond when the Department says so. This lawsuit, on the other hand, does nothing for the girls’ team. And again, just because Mr. Jackson couldn’t sue specifically under Title IX doesn’t mean that calling in a complaint would have left him exposed to retaliation.

Second, Title IX will not collapse if third parties can’t sue. NSBA supports Title IX. But the lawyers for Mr. Jackson want the Court to rule that every non-discrimination statute automatically assumes that third parties can sue for retaliation, even if Congress didn’t say so, because they may be the “only effective advocate” for victims of discrimination. Ask any school principal—heck, just ask any parent—whether kids hesitate to complain when they think something isn’t fair. And ask any school board member whether their parents are too timid to voice dissatisfaction. Opening the door even more widely to more lawsuits doesn’t give school leaders warm fuzzies.

Third, anti-discrimination protections will not be rendered toothless if the Court insists that Congress be clear about who can sue whom under what circumstances. Contrary to assertions that most such statutes have the same kind of general language as Title IX, lots of other federal anti-discrimination laws do contain express prohibitions against retaliation and/or express provisions authorizing others to sue on behalf of direct victims. Congress knows how to do this. If the Court does find for the school board, Congress can always decide that it really did want to anoint third-party champions and amend Title IX accordingly.

The policy
Finally, there are important policy considerations on the school side, too. Retaliation lawsuits sometimes go forward and end up costing schools money even when the court determines that there actually was no discrimination after all. And it’s already hard enough for schools to take even routine personnel actions without letting every employee adorn himself or herself with the mantle of civil rights crusader and sue, alleging that the school’s action really is retaliation. Even if Mr. Jackson’s allegations are true in this instance, this is an unsettling scenario in an era of educational accountability.

Let’s face it: In the court of public opinion, these legal and policy arguments about a workable system may sound like pretty cold-blooded calculations when weighed against a compelling personal story and the general idea of fairness to girls. We’ll see what the Court and Congress think about the law.

Erin Walsh|November 30th, 2004|Categories: Governance, NSBA Opinions and Analysis|

Best of two weeks ago

CUBE launches major study of urban school climate. Secretary Paige resigns, the rumor mill churns. Margaret Spellings gets the nod, and education world voices hope. Florida court again finds vouchers unconstitutional, a Colorado Republican tells her party that, “We have prostituted ourselves on this issue,” and South Carolina’s Senator Graham observes that diverting taxpayer funds to vouchers undermines public education. And three key education issues hang in the balance in lame duck Congress: funding for schools, fate of E-Rate program, and reauthorization of IDEA.

Erin Walsh|November 29th, 2004|Categories: Governance, NSBA Opinions and Analysis|

E-Rate – in overtime

Efforts to unravel the bureaucratic screw-up that threatens E-Rate funding for school Internet access have been through many twists and turns. Here’s a week-by-week account, courtesy of NSBA’s Legal Clips service.

First, the Federal Communications Commission (FCC) decides to subject the E-Rate program to new government accounting rules. Hitherto, E-Rate funds were not really treated as government funds, but the new rules trigger the requirement of the federal Anti-Deficiency Act that no E-Rate funding commitment letters can even go out until the funding is in hand. Alarm bells go off in school districts, including some in Alaska that disconnect their schools from the Internet because of the budgetary uncertainty.

Education, library, and telecommunications groups propose a common sense legislative solution: Exempt E-Rate from the Anti-Deficiency Act. Lots of other federal programs already are exempt. The FCC initially supports the idea, but then has a change of heart. Instead, it proposes that the program just issue “soft” commitment letters that technically would not “obligate” funds for purposes of the Anti-Deficiency Act. Problem is, this soft a commitment is no commitment at all for many districts that need to plan, budget, and procure services.

NSBA members and other groups deliver this message to the feds, who see the light and return to the legislative fix. There appears to be bi-partisan support for the solution, although there is some question about whether Congress will fix the problem for good or just temporarily. The idea is to attach language to the omnibus spending bill.

But then the House attaches the language to a telecommunications bill instead. Fine, whatever vehicle works. Trouble is, some Senators have some problems with this vehicle, not with the E-Rate passenger. So Congress doesn’t pass the measure before Thanksgiving. Lawmakers return next week and have a last chance to get the job done this year. Here’s an Action Alert from NSBA’s Advocacy team, with convenient links to information on contacting Congress.

Meanwhile, new E-Rate commitment letters have started to be issued again because more funding has come in. But the problem still needs fixing. Also, watch out for possible attempts to roll the program back in connection with the waste and abuse discovered in some E-Rate contracts. The accounting mess is unrelated to this issue, and overall the program is a tremendous success, but the rumor mill says vigilance is called for. Stay tuned.

Erin Walsh|November 29th, 2004|Categories: Governance, NSBA Opinions and Analysis|

Funding – a loss

The House and Senate passed a $388.4 billion omnibus spending bill before the holidays. The measure consists of nine spending bills, including funding for education programs. Unfortunately, funding for many domestic programs like education was subject to a 0.8% across-the-board cut, affecting all non-defense and non-homeland security spending. As a result, our key funding priorities—Title I and special education—received far less than the amounts proposed in the President’s budget request to Congress and in earlier measures passed by the House and Senate Appropriations Committees. Here’s the tally:


  • Title I Grants will be funded at $12.8 billion, an increase of $500 million instead of the $1 billion increase proposed earlier.

  • Special Education (IDEA) Grants will be funded at $10.7 billion, an increase of $607 million instead of the $1 billion to $1.2 billion increase proposed earlier.

  • Title V Grants for Innovative Education Programs will be funded at $198.4 million, a $98.1 million cut from FY 2004. It’s worth noting that school board member outreach to members of Congress helped restore some funding for Title V grants, which was zero funded in a recommendation from the Senate Appropriations Committee and totaled just $20 million in the original House appropriations bill.
Here’s the problem: Having run up colossal deficits, the feds are looking to whack budgets, and the prime targets will be those line items that they think will provoke relatively less backlash. Kids don’t vote. If Congress gets the impression now that schools will just roll over and take it, bigger cuts may be on the way, all the while NCLB demands get higher and grow more costly.

Last week, NSBA sent this letter to Congress expressing our deep disappointment with the paltry education funding levels. The letter reads, in part: “The under funding of education programs places local school districts in a quandary about how to achieve the goals of No Child Left Behind and the education of children with disabilities. It is a reality that these federal programs, will result in local tax increases in many communities to offset this federal shortfall when preparing the budgets for the upcoming school year. For sure, the only alternative will be to cut programs, resulting in another disservice to students.”

Erin Walsh|November 29th, 2004|Categories: Governance, NSBA Opinions and Analysis|

IDEA reauthorization – a win

Congress did indeed complete its work on the Individuals with Disabilities Education Act (IDEA). The bill removes unnecessary bureaucracy, paperwork, legal process, and expense from the program. That should reduce the adversarial relationships that sometimes exist between families and school officials. More importantly, the bill will shift the emphasis of this critical program from compliance to improving education outcomes and accountability for all students.

Passage of the bill culminated nearly three years of efforts by NSBA that began with a series of focus group sessions and other meetings with local school board members, state school boards associations, local special education teachers, and school attorneys representing more than 30 states. A committee of special education practitioners who are members of NSBA’s Council of School Attorneys was particularly influential in formulating concepts and language that were incorporated into the bill.

You can read NSBA Executive Director Anne L. Bryant’s statement on the bill’s passage here, and an update from NSBA’s Advocacy team highlighting some of the changes, here.

Erin Walsh|November 29th, 2004|Categories: Governance, NSBA Opinions and Analysis|

BoardBuzz returns

We hope everyone had an enjoyable holiday. Much has been happening in the nation’s capital in the world of education in the last week. So our first order of business is to bring everyone up to date on the three big education issues that were pending in the lame duck Congress. As of this writing, the tally for America’s schools could best be described as 1 win, 1 loss and 1 incomplete: (1) IDEA has been reauthorized, but (2) the ducks are indeed lame when it comes to school funding, and (3) the fate of the E-Rate program is still up in the air.

Erin Walsh|November 29th, 2004|Categories: Governance, NSBA Opinions and Analysis|

A Thanksgiving hiatus

BoardBuzz will be on a publishing break next week for the Thanksgiving holidays. See you on Monday, Nov. 29.

Erin Walsh|November 19th, 2004|Categories: Governance, NSBA Opinions and Analysis|

Every vote counts, believe it

Those who still doubt whether their vote matters should read this story about a Salt Lake City man who won a seat on the school board by a mere one vote. The decision came after tabulating provisional ballots and a recount. You can read this story, and other daily education headlines, in a new feature from NSBA called Education Newsstand. It’s a great way to bypass those annoying pop up ads and mandatory registrations that many news websites now require. Check it out.

Erin Walsh|November 19th, 2004|Categories: Governance, NSBA Opinions and Analysis|

Spellings nomination news, day five

Want to learn a little more about the next Secretary of Education? Margaret Spellings‘ bio is here. NSBA’s statement on her nomination can be found here. “We fully support Ms. Spellings’ confirmation in the Senate and look forward to working with her to achieve our mutual goal of raising student achievement for all students in all schools,” said NSBA Executive Director Anne L. Bryant.

And President Bush’s comments announcing her nomination, as well as her own comments can be found here. Spellings proudly noted her own roots as a public school product: “I am a product of our public schools. I believe in America’s schools, what they mean to each child, to each future President or future domestic policy advisor, and to the strength of our great country. If confirmed by the Senate, I commit to work alongside America’s educators and my new colleagues at the Department of Education to make our schools the finest in the world.”

Erin Walsh|November 19th, 2004|Categories: Governance, NSBA Opinions and Analysis|

School funding bill awaits action too

It still isn’t too late to contact your senators and House members and urge them to pass an appropriations bill that will increase overall education funding by $2.5 billion for Title I and $2.2 billion for IDEA. Find out more here.

Erin Walsh|November 19th, 2004|Categories: Governance, NSBA Opinions and Analysis|
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