Articles in the School Law category

NSBA backs University of Texas in diversity case

The National School Boards Association, the College Board, and 11 other national educational groups today filed a brief in the U.S. Supreme Court strongly supporting the University of Texas’ use of race as one of multiple factors in admission decisions.

In January, a three-judge panel of the Fifth Circuit Court of Appeals ruled unanimously for the defendants in Fisher v. University of Texas. The plaintiffs then appealed to the Supreme Court, which accepted the case in February, thereby signaling its willingness to revisit diversity law. Legal experts say that a high court reversal of the earlier decision would represent a profound change in affirmative action law and a serious setback to school districts and universities seeking to diversity their programs.

“I think it’s ominous,” Lee Bollinger, the president of Columbia University, told the New York Times earlier this year. “It threatens to undo several decades of effort within higher education to build a more integrated and just and educationally enriched environment.”

The case is being closely watched by public school leaders as well. Among those groups joining NSBA in today’s brief are the American Association of School Administrators, the Council of Chief State School Officers, and the Texas Association of School Boards Legal Assistance Fund.

“The National School Boards Association is committed to the principle that diversity promotes the educational achievement of all students,” NSBA Executive Director Anne L. Bryant said today. “Preserving the ability to develop sound, academically driven diversity policies is in the best interests of all students in our public schools and beyond.”

Bollinger was president of the University of Michigan in 2003, when the Supreme Court ruled 5-4 in Grutter v. Bollinger that the university’s use of race was constitutional as long as it was part of a “holistic” assessment of candidates that included other factors. It was that decision that has guided the University of Texas and many other educational institutions as they try to diversity their academic programs and prepare a workforce for the 21st century.

Under a 2004 state law, all Texas high school seniors in the top 10 percent of their classes are automatically admitted to the Texas state university of their choice — a requirement that accounted for 81 percent of the 2008 freshman class at the University of Texas, according to a recent College Board report. (The university limits out-of-state residents to 10 percent of the freshman class.)

The remaining in-state candidates are then evaluated on both academic and personal achievement indexes. Among the personal achievement indexes – which include socioeconomic status, and family status and responsibilities – is race. “No element of the personal achievement score is considered separately or given a separate numerical value,” the report said.

The College Board report was written by attorney Arthur L. Coleman, who wrote the court brief filed today. Coleman also collaborated with Katherine E. Lipper and NSBA General Counsel Francisco M. Negrón Jr. on the 2011 publication Achieving Educational Excellence for All: a Guide to Diversity-Related Policy Strategies for School Districts.

 

Lawrence Hardy|August 13th, 2012|Categories: 21st Century Skills, Diversity, School Law, State School Boards Associations|Tags: , , , , , |

NSBA’s General Counsel shows strategies to address school bullying

“The one common thread from the many perspectives on school bullying is that advocates on all sides care deeply about kids,” National School Boards Association (NSBA) General Counsel Francisco M. Negrón, Jr. writes in a blog for “Transforming Learning.”

Negrón discusses a recent guide that shows ways to host and facilitate respectful discussions and recognize other individuals’ and groups’ differences without engaging in bullying. The guide, “Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools,” is a project of the American Jewish Committee and the Religious Freedom Education Project/First Amendment Center, which collaborated with NSBA and other education, civil rights, and legal advocacy groups.

The issue of school bullying is fraught with emotion and also can lead to lawsuits and legal action against school officials. It’s important that teachers and school recognize forms of bullying, but also know how to use those instances as teachable moments for all students, Negrón notes.

Transforming Learning is a project of the Learning First Alliance and is hosted by Education Week, the nation’s leading education news source.

Joetta Sack-Min|August 2nd, 2012|Categories: Bullying, Reports, School Law, School Security|Tags: , , , |

Thirty years after Plyler, immigrant students still face obstacles

If you want to see how the nation’s views on undocumented immigrants have hardened in recent years, you don’t have to read the majority opinion in Plyler vs. Doe, the landmark U.S. Supreme Court case that said public schools must educate all children regardless of their immigration status.

 Just read the dissent.

 “Were it our business to set the Nation’s social policy,” dissenting Chief Justice Warren Burger began, “I would agree without hesitation that it is senseless for an enlightened society to deprive any children — including illegal aliens — of an elementary education.” 

Burger goes on to say, however, that whatever “folly” may have existed by the State of Texas’ decision to refuse to educate undocumented children, that decision was not unconstitutional. Such sentiments are a far cry from the prevailing view in the 2011 Alabama House Bill 56, part of which requires school districts to report the number of undocumented children in their schools, said Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Education Fund.

Saenz was one of six speakers at a Washington forum Monday titled Plyler v. Doe at 30 years: Keeping Public Schools Open to All of America’s Children. He said he wants people to read both Plyler’s majority opinion and the dissent to get a sense of the values expressed at the time. Also speaking at the event, sponsored by the American Civil Liberties Union, was Assistant Attorney General Tom Perez, the U.S. Justice Department’s chief civil rights enforcement officer, who was a keynote speaker the Council of School Attorneys (COSA) School Law Seminar in Boston.

Before Plyler could take effect, the justice department, joined by civil rights and religious groups, succeeded in securing a temporary court injunction on the part of the law that concerns school reports on students’ immigration status. But by then, Perez said, the damage had been done. Hispanic students were missing school and dropping out.

“We must never lose sight of the fact that this is about real people with real dreams,” Perez said.

That fact was underscored by William Lawrence, principal of Foley Elementary School in Foley, Ala. Soon after word of the new law reached Hispanic families, there was tremendous fear in the community that they would be targeted.

“The scene at the school was chaos,” Lawrence said. “There was crying and wailing” both from the Latino students and their non-Latino friends. Within weeks, 64 students would be withdrawn.

Ironically, 96 percent of the Hispanic students at Foley Elementary were born in the United States, Lawrence said. 

“It became clear to me that these children — American-born, U.S. citizens — were facing the brunt of the law,” said Lawrence, “a lifelong conservative Republican” who was nonetheless distraught over the measure that Alabama’s Republican majority pushed through the state legislature. 

If Lawrence’s political affiliation was ironic, there was irony in the actions of the Obama administration as well. Laura W. Murphy, the event’s moderator and director of the ACLU’s Washington Legislative Office, praised Perez and Russlynn Ali, the U.S. Department of Education assistant secretary for civil rights, for their work on behalf of immigrants’ rights. But she said that if an official from the Department of Homeland Security had addressed the group, the reception would have been much different.

Last October, the Obama administration reported nearly 397,000 people were deported over the past 12 months, the third straight year of record deportations. Although the administration has initiated reviews of more than 410,000 deportation cases over the past seven months, fewer than 2 percent have been closed, leaving immigrant rights groups frustrated, according to the New York Times.

Perez’s office and the Department of Education have taken a much different course, investigating cases in states such as Indiana, North Carolina, and Alabama, where immigrant students have encountered roadblocks to school registration. In most instances, Perez said, school districts have been helpful.

“When we work with school districts, we explain the dos and don’ts,” Perez said. “They’ve been very receptive, because teachers want to work with kids.”

Lawrence Hardy|June 12th, 2012|Categories: American School Board Journal, Assessment, Council of School Attorneys, Diversity, Immigrants, School Board News, School Law|Tags: , , , |

Guidelines offer “teachable moment” for tough First Amendment issues

A coalition that includes NSBA and 16 other education, religious, and civil liberties groups has released new guidelines for school districts to combat harassment and bullying while upholding student’s First Amendment rights to express views that may be upsetting to others.

“It is important to distinguish between speech that expresses an idea, including religious or political viewpoints — even ideas some find offensive — and speech that is intended to cause, or school officials demonstrate is likely to cause, emotional or psychological harm to the listener,” says Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools. “Words that convey ideas are one thing; words that are used as assault weapons are quite another.”

Simply put: The former is protected by the First Amendment, the latter is not. But while that principle may seem simple in the abstract, it is anything but straightforward in the real world.  Indeed, as NSBA General Counsel Francisco M. Negrón Jr. said Tuesday at a news conference in Washington, both the U.S. Department of Education and the courts have struggled with this issue.

While the guide “relies on our contemporary understanding of the state of the law, it is not of itself a legal document,” Negrón said. “To the contrary, it is more of a policy guide that roots itself in the best interests of students.  In this context, it means taking the natural tension between the right to be safe and secure and the right to freely express one’s self and identifying the teachable moment that makes sense for students. “ 

The project was organized by the American Jewish Committee and the Religious Freedom Education Project  Education Project and endorsed by NSBA along with American Association of School Administrators; ASCD; Center for Religion and Public Affairs at Wake Forest University Divinity School; Christian Educators Association International; Christian Legal Society; Hindu American Foundation; Islamic Networks Group and its affiliates; Islamic Society of North America; Muslim Public Affairs Council; National Association of Evangelicals; National Association of State Boards of Education; National Council for the Social Studies; Religion Action Center of Reform Judaism; and Union of Orthodox Jewish Congregations of America.  

According to the guidelines, students should be able to attend public schools where they are free to share their views and engage in discussions about religious and political differences while simultaneously attending safe schools that prohibit discrimination, bullying, and harassment.  

Negrón noted: “This guidance framework will allow educators and schools not to simply legislate prohibitions of conduct or speech or ideas, but to engage students about the importance of civil discourse, respect for the safety and rights of others and teach the value of thoughtful discussion particularly about very deeply held personal views and beliefs.“

Lawrence Hardy|May 22nd, 2012|Categories: Bullying, Discipline, Diversity, Religion, School Law|Tags: , |

Avoiding liability in athletics programs

Athletics are an important element of school districts that have historically presented many challenges to board members. Myron Thompson, director of risk management with the Kentucky School Boards Association, provided school board leaders a review of various issues that create headaches and liability concerns in sports programs.

Thompson’s presentation at a Sunday morning session addressed a variety of topics, including sex abuse, concussions, transportation, finances/misappropriation of funds, hazing and bullying, supervision, and safety and security. He outlined policy implications and risk management strategies to assist board members and administrators in evaluating their programs and minimizing risk.

In tough economic times, Thompson said community support often stays strong for athletics. In some cases it grows despite fiscal challenges. Booster organizations were identified as “a gift and a curse” as they offer tremendous revenue for sports programs but may open a district up to increased liability and bad public relations.

“Clear guidance as well as open and frequent communication with this group of individuals is a must,” Thompson said.

Athletic trainers were identified as the best investment a local school board can make for managing sports injuries and the health of student athletes. Of particular concern are concussions. Today, 39 states have laws requiring districts to address them in high school sports. Football is most associated with concussions, but Thompson said anyone connected with sports — including soccer and cheerleading — must be fully immersed in identifying and addressing traumatic brain injuries.

Even though fuel prices have escalated, making operating school buses for minor sports cost prohibitive, attendees were advised not to compromise student safety by transporting athletes in passenger vans. District administrators should be familiar with the laws in their states for transporting student athletes in anything other than buses.

Finally, attendees were cautioned about overzealous parents’ involvement in athletics and were urged not to succumb to them.

“Teamwork is a vital component of any successful sports team and school board members and administrators should know their roles and play them accordingly,” Thompson said. “Far too often these leaders become involved after something has gone wrong.”

Andrew Paulson|April 22nd, 2012|Categories: NSBA Annual Conference 2012, School Law|Tags: |

Public schools not required to provide Section 504 services to private school students, NSBA says

Does a student who attends private school have the right to receive special education or related services from his public school? That’s what parents of a Baltimore County, Md., student are arguing in a case before the 4th U.S. Circuit Court of Appeals.

But in an amicus brief to the court, NSBA argues that Section 504, the federal non-discrimination statute cited by the plaintiffs, does not permit parents who opt out of the public schools from receiving special education services or similar accommodations.

“For those students whose parents elect to enroll them in public school, Section 504 establishes as collaborative process whereby a team of school professionals can develop an integrated plan for service each student with disabilities,” says the brief, filed by NSBA, the Maryland Association of Boards of Education and the Virginia School Boards Association.

“Following the Parents’ position would turn such a plan into a disjointed grab-bag of services from which parents, and/or private schools could select on an ad hoc basis. This would be to the detriment of the student, and certainly was not envisioned by Congress when it enacted Section 504.”

In the case, D.L. v. Baltimore City Board of School Commissioners, the court will review whether a public school system must provide educational services under Section 504 of the Rehabilitation Act to a resident student with Attention Deficit Hyperactivity Disorder (ADHD) whose parents have unilaterally enrolled him in a private school. 

“School districts, in these tough economic times, are being forced to drastically cut their budgets,” said NSBA’s Executive Director Anne L. Bryant. “The federal funds for education programs and services for students with disabilities provided through IDEA pay for only a small portion of the true cost of educating special needs students and should be reserved primarily for public school students.”

This case involves a student with ADHD whose parents have placed him in a private school.  When the parents requested that their son be evaluated to determine his eligibility for special education services, the Baltimore City Public Schools found that he was not eligible under the IDEA but was qualified under Section 504.  A Section 504 plan was not developed because the student remained enrolled in a private school.

The parents filed a complaint, and a hearing officer found that the school system was not obligated under Section 504 to provide special education services to the student because his parents had unilaterally placed him in a private school. This ruling was affirmed by the U.S. District Court for Maryland, but the parents have now appealed to the U.S. Court of Appeals for the Fourth Circuit.

“Congress did not intend through Section 504 for school districts to pay for students enrolled unilaterally in private schools by their parents,” said NSBA’s General Counsel Francisco M. Negrón Jr. “The Fourth Circuit should not expand Section 504 to require public schools’ to fund the education of students in private schools beyond the parameters of the Individuals with Disabilities Education Act (IDEA).”

Lawrence Hardy|April 17th, 2012|Categories: School Law|Tags: , , |

Diversity and student assignment: A legal view

Try to answer this question about one of the most significant cases in U.S. Supreme Court history:

The 1954 decision in Brown v. Board of Education, which desegregated the public schools – did it a) ensure that black students had access to the same educational advantages as white students, or b) assure that educational decisions in the public schools would not be based on race?

If you answered “both,” you might be right, but it wouldn’t help you come to a decision in a subsequent student assignment case, PICS v. Seattle. In this case, a divided Supreme Court ruled in 2007 that the diversity plans of the Seattle and Kentucky’s Louisville public schools were unconstitutional. And that’s because justices on both sides of the 5-4 decision invoked the famous Topeka, Kan., case and its legacy in justifying their decisions

“Fifty-years later … is PICS v. Seattle the New Brown v. Board of Education” was the title of this breakout session at Saturday’s Leadership Conference. It was led by Jay Worona, general counsel of the New York State School Boards Association, and Francisco M. Negrón Jr., general counsel of NSBA. And yes, Negrón said, the title was meant to be a little facetious because the opposing sides in the later case disagreed vehemently on just what the legacy of Brown meant.

For dissenting justices Stephen Breyer and John Paul Stevens, the two districts’ student assignment plans, which used race in some instances to diversity popular schools, was in keeping with the reasoning of Brown.

“[The] history books do not tell stories of white children struggling to attend black schools…,” Stevens wrote.

But Justice Clarence Thomas, a member of the court majority, characterized Breyer’s dissent as “[d]isfavoring a color blind interpretation of the Constitution.”

So does this mean school districts cannot consider race when making student assignments? Actually no, Negrón said. In trying to diversify schools, districts can still consider race, as long as it is part of a well-reasoned decision that also involves other factors, such as socioeconomic status, geographic location, and parental education levels. What schools may not do, he said, is to use race to determine where an individual student goes to school.

The key is to consider the educational advantages of diversity, rather than diversity of its own sake.

“You should think about diversity as something that academically benefits all of your students,” Negrón said.

For more information, see the NSBA publication Achieving Educational Excellence for All: A Guide to Diversity-Related Policy Strategies for School Districts.

Lawrence Hardy|February 4th, 2012|Categories: Diversity, Leadership, Leadership Conference 2012, School Boards, School Law|Tags: , , , , , |

High Court declines to hear two Internet cases

The U.S. Supreme Court missed an opportunity to clarify what school districts can do to monitor harmful and potentially disruptive off-campus Internet speech when it declined this week to hear a pair of Pennsylvania cases involving students posting fake Internet profiles, said NSBA General Counsel Francisco M. Negrón Jr.

In one of the cases, J.S. v. Blue Mountain School District, a middle school girl who was upset about being reprimanded for dress code violations posted a fake MySpace profile of her principal That profile, according to the U.S. Circuit Court of Appeals for the Third Circuit, “contained crude content and vulgar language, ranging from nonsense and juvenile humor to profanity and shameful personal attacks aimed at the principal and his family.” Nonetheless, the court, in an 8-6 decision, ruled that the school district had violated the girl’s First Amendment right to free speech when it suspended her for 10 days.

The Supreme Court also declined to hear an appeal of another Pennsylvania case, Layshock v. Hermitage School District, concerning a high school senior who was suspended after created a fake webpage mocking his principal. That suspension was overturned by a district judge in a ruling that was confirmed by a three-judge panel and the entire Third Circuit Court.

NSBA and several other national education organizations appealed the rulings to the Supreme Court in the hope that it would provide more definitive guidance to school districts at a time when technology has blurred the line between campus and off-campus speech.

“We’ve missed an opportunity to really clarify for school districts what their responsibility and authority is at a time when kids are using electronic medial instantaneously, and especially when those messages are so impactful and immediate on the school setting,” Negrón told the Associated Press. “This is one of those cases where the law is simply lagging behind the times.”

Negrón was also quoted on the websites of CNN, ABC News, and other media outlets.

Lawrence Hardy|January 18th, 2012|Categories: Governance, School Law, Social Networking|Tags: , |

NSBA Executive Director Anne L. Bryant announces retirement

NSBA Executive Director Anne L. Bryant has announced her plans to retire in fall 2012. Bryant has served as head of NSBA for more than 15 years, where she has been instrumental in focusing the organization’s governance, research, and training on increasing achievement for all students and advocating on behalf of school boards in Congress, in the federal courts, in federal agencies, and in the public media.

Read NSBA’s press release for more details.

Joetta Sack-Min|December 13th, 2011|Categories: Announcements, Center for Public Education, Leadership, Legislative advocacy, School Law, Uncategorized|Tags: , |

New guides help districts navigate diversity issues

It’s well documented that student diversity enhances educational experiences while racial isolation can hinder academic achievement. But recent U.S. Supreme Court decisions have complicated matters for school districts seeking to create or to maintain diverse environments.

On December 2, the Departments of Education and Justice issued  new documents to shows ways school officials can promote  diversity and reduce racial isolation within the confines of the court decisions and other laws. In September, the National School Boards Association (NSBA) released its own report with the College Board and EducationCounsel, LLC, Achieving Educational Excellence for All, which discusses diversity policies, legal issues, and community engagement.

The federal documents interpret three recent Supreme Court rulings that have addressed the consideration of race in K-12 assignments and higher education admissions: Parents Involved in Community Schools v. Seattle School District No. 1, Grutter v. Bollinger and Gratz v. Bollinger. The new federal guidance, which replaces guidance issued by the Bush administration,  gives examples of ways school districts can promote diversity or reduce racial isolation, such as the location of a school or program, drawing school attendance boundaries, grade realignment and restructuring feeder patterns. The federal agencies also issued a separate document for postsecondary institutions that describes how race could be used as a factor in admissions, recruiting, and other activities.

NSBA General Counsel Francisco M. Negrón, Jr. noted that, in addition to the legal issues, school board members should engage their communities to determine their needs and priorities when considering any policy to promote diversity in their schools. Achieving Educational Excellence for All includes a chapter on how to do so, as well as chapters on legal and policy implications, particularly on the importance of focusing on the educational benefits of diversity. Negrón added that voluntary migration patterns and economic conditions in many places have led to increased segregation even as our country becomes more diverse, making practical guidance tohelp school leaders navigate those challenges even more critical.

Representatives from the two agencies said in a recent conference call that they will offer technical assistance and other tools to assist school districts.

 

 

Joetta Sack-Min|December 12th, 2011|Categories: Board governance, Diversity, Policy Formation, School District Reorganization, School Law|
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