Opinion and News Analysis
Opinion: Students' rights: A haze of precedents
By Daniel Nadler
Under the U.S. Constitution, how may a district investigate
a student thought to have stolen a school computer, smoked cigarettes in a
school’s back stairwell, or bullied a youngster online? It depends on the
location of the district. In Richmond,
VA, and other parts of the Fourth Circuit, district personnel may opt to
seize and search the student’s cell phone, accessing potentially incriminating
text messages. In Boulder, CO,
and other communities within the Tenth Circuit, inquisitive staffers may do the
same thing—but only with student or parent permission.
Which method is just? Constitutionally sound? Is a school
like a parent, with legal protections to read its children’s text messages? Or
is it instead like a neighbor, who would face charges for opening the mail of
the person next door without consent, or for looking through his email?
These are but a few of the thousands of questions federal
courts must answer in the fog that is the field of students' rights litigation.
Students’ rights law—with its strong implications for school
safety—is perhaps the most visible element of American educational
jurisprudence. And, thanks to the Supreme Court’s vague and sometimes
contradictory decisions on this front, it’s also the most contentious. The High
Court first weighed in on students’ rights in 1969, declaring in their Tinker ruling that “it can hardly be
argued that either students or teachers shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate.” Since then,
educators—and state and local officials—have wrestled with what exactly the
Court had in mind.
Now, more than forty years later, district administrators
and state policymakers still find little guidance in Supreme Court opinions.
Instead of offering concrete precedent, Tinker
and other High Court opinions have left ample room for lower courts to diverge
in their interpretations—and, as is the case in Boulder and Richmond, these
lower courts have embraced this opportunity wholeheartedly.
To understand the
variation of appellate court decisions on this issue, I assembled the first
comprehensive dataset of federal cases dealing with students’ rights in public
schools (from 1969 to 2009), with an eye to answer one key question: whether
judges’ interpretations and holdings are significantly influenced by the
federal circuits (with their contrasting political make-up) to which they are
It turns out that there is enormous cross-circuit divergence
in students’ rights case outcomes—more, even, than noted legal scholar Cass
Sunstein found in the touchy areas of race and sex discrimination.
Over this forty-year period, the rate of U.S. appellate-court
case outcomes that were pro-student (when a student plaintiff was granted some
relief by the court) varied by as much as 56 percent, depending on which
circuit tried the case (see Figures 1 and 2). Overall, the national average of
pro-student case outcomes was roughly 42 percent. Students in the First
and Fourth Circuits saw favorable court-case outcomes 75 and 67 percent of the
time, respectively; those in the Eleventh and Sixth Circuits, just 30 and 19
percent of the time, respectively. At least four of the eleven circuits produce
case outcomes that vary from the national average by more than a full standard
Figure 1: Summary of
Student Rights Case Outcomes by Circuit
perspective, these variances in circuit court rulings represent a dramatic
regional bias associated with the judicial outcomes. In the (more liberal)
Northeast, Mid-Atlantic, and West Coast, courts favor students in a majority of
cases: In the (more conservative) southern and central states, students can
expect a favorable outcome less than a third of the time. This means that landmark
students-rights decisions at the national level, like Tinker, play out very differently across America’s regions. In the
nation’s four biggest states—California, Florida, New York, and Texas—roughly
40 percent of the variance in all case outcomes of student rights claims can be
accounted for by geographic situation alone.
Figure 2: Regional
Variation in Student Rights Rulings, 1969-2009
These variant Appellate Court interpretations set a moving
bar for educators across the country. A ruling from the California-based Ninth
Circuit may not see the same conclusion in the Georgia-based Eleventh Circuit.
Without clarity, the scope of school-leader authority lingers in a legal mist.
Our national judicial system is grounded in the supposition that court rulings
objectively determine statute. These findings hammer at the bedrock of that
Daniel Nadler is a
graduate student studying the political economy of the United States at the
Harvard University Department of Government.
This piece is an
adaptation of an academic-length paper entitled Regional Heterogeneity in U.S. Courts of Appeals Case
Outcomes Over Time: A Review of Existing Studies & New Data from the Field
of Student Rights and supported by the
Thomas B. Fordham Institute as part of our Fordham Scholars program.
Opinion: A "third way" on charter-school policy
By Terry Ryan
Since their inception in 1997, charter schools have
been at the center of some of the most politically contentious debates in Ohio.
These debates have too often been characterized by two competing camps. One
side typically has been organized labor (read: the teacher unions), stalwart
Democrats, and citizens groups believing charters represents a threat to
“public schools.” The other side tends to be the business sector—represented by
large profit-making school management companies—free-market oriented
individuals (often Republicans), and activists of all political stripes who
advocate for educational equity.
||The Buckeye State needs more than charter-school quantity. It needs charter-school quality, too.
Interest groups on both sides of the debate have poured
money into political campaigns over the years and have treated the politics of
charter schools as a zero-sum game.
This political polarization has led pro-labor Democrats to support anti-charter
legislation while pro-business Republicans have fought to protect extant school
operators and have resisted accountability measures that they perceived as
anti-charter. True to form, in his first budget in 2007—and again in his second
budget in 2009—Ohio Governor Ted Strickland (D) proposed legislation that would
have banned for-profit charter operators, cut charter school funding, and
buried the schools in costly regulations.
The political battle long-waged around these schools has hurt charter quality
in the state, made it difficult for Ohio to improve its charter law, and
retarded the ability of charter schools to meet their potential. According to new state charter-law rankings
by the National Alliance for Public Charter Schools (NAPCS), Ohio’s law now
ranks number twenty-seven out of forty-one states with charter laws.
In contrast, the states with the best charter laws—Minnesota, Florida,
Massachusetts, Colorado, and New York—have made steady improvements over the
last few years through bipartisan legislative action. According to NAPCS, these
improvements include both the removal of constraints on charters (e.g., lifting
of charter caps and moratoriums) and the strengthening of charter-school
accountability. Florida is a case in point. The Sunshine State made the biggest
jump in 2010, moving from number eleven to number two in the charter-law-rankings
database. Florida’s rating leapt because lawmakers there embraced quality-control
provisions that included adopting model-charter-school applications and
requiring high-quality charter-school-application evaluation forms and
performance-based charter contracts.
Republicans now control state government in Ohio and have promised to remove
caps and moratoriums on charters. This is a good start, but removing barriers
to new schools—increasing choice—must be balanced by improvements to the
state’s charter quality-control mechanisms. The Buckeye State needs more than charter-school quantity. It needs charter-school quality, too. Ohio should build on the
lessons from Florida and other high-performing charter states.
Specifically, Governor Kasich and legislative leaders should craft policies
that ensure would-be school operators are carefully vetted in advance of
opening; that all schools are thoroughly monitored by responsible authorities
for their academic performance; and that poor performers exit the market in
Failed schools should not be able to skirt academic
accountability, whether they are traditional district schools, virtual charter
schools, or brick-and-mortar charters (operated by either for-profit or
nonprofit management companies). The theory behind the school-choice
movement—that parents will vote with their feet and that the market will hold
schools accountable—is imperfect. Choice alone all too often allows poorly
performing schools to stay open for business. Parental choice should be
encouraged and expanded, but in parallel with rigorous accountability for
For too long, charter schools have been a political
battlefield on which powerful partisan interests have waged war. As such,
charter quality has suffered and children who badly need better educational
options have been unable to find them, all too often bouncing from troubled
school to troubled school. Governor Kasich and Republican lawmakers in Ohio
should break the cycle of political acrimony around school choice. This means
resisting the temptation—and the encouragement they will surely receive from
some in the charter sector—to push for more charter schools while also scaling
back on school accountability. This would be a grave mistake.
The challenge facing education reformers in Ohio isn’t so much to add still more
school options, but to ensure that those available to families are in fact
educationally sound. This is both the lesson from Ohio’s rocky charter-school
history and the lesson from state’s with higher performing charter schools.
News Analysis: An e(z)-way around class-size mandates
We never thought we’d say this. But, hats off to
the Miami-Dade school district! Through a partnership with Florida Virtual
School, the district has enrolled over 7,000 of its students in online courses
taught by teachers over the Internet. The initiative is a smart,
creative counter to the one-two punch of tough economic times and rigid
class-size restrictions. (In Florida, elementary schools may only have
eighteen students per class and high schools, twenty-five. The e-learning labs
are exempt from these stifling and costly limitations.) While the Miami-Dade
initiative has left status quo defenders fuming, it’s allowed the district to
cut costs while still providing personalized, individual instruction. “Mass
customization” they call it. There is no question that these e-lessons must be
well-planned and well-implemented if this initiative is to be a plus for
students. But to the teachers’ unions and their minions we say: Something’s got
to give. Axe the Sunshine State’s ridiculous class-size mandate or start to get
comfortable with alternative solutions to stretching the school dollar. ‘Nuff
News Analysis: E pluribus unum, and not the other way around
The Gadfly and Fordham have forever embraced
multiculturalism: All students should learn about the history (and cultures) of
all Americans. Standard U.S. history courses should recount the good and bad
chapters of our nation’s past, helping our young people understand the origin
of our high ideals as well as ways we’ve fallen short of them, our triumphs as
well as our sins, and the stories of all peoples, from whites to blacks to
Latinos to Native Americans and onward. But we cannot condone courses designed
for students from one ethnic group about the history of said group alone.
African American-studies courses just for African Americans? Latino-studies
courses just for Latinos? Count us out. That’s why we were disappointed (if not
surprised) when the New York Times
editorial page condemned a new Arizona law that bans such courses for “inject[ing]
nativist fears directly into the public school classroom.” Currently at issue
are the Tucson Unified School District’s Mexican American-studies courses,
in which, according to some reports, including one from a former teacher of the
program, the students are taught that “the
United States was and still is a fundamentally racist country in nature.”
It’s hard to know from afar if these courses do in fact cross the line, but
it’s completely appropriate—and not at all “nativist”—for states to ensure that
their public schools don’t teach hate, divisiveness, or an ideology of
Review: Assessing the Determinants and Implications of Teacher Layoffs
By Nick Joch
Add this credible and quantitative research to
the growing list of reports finding seniority-based layoffs to be detrimental
both to student learning and to the bottom line. From the CEDR, the report
analyzes data on over 2,000 Washington state teachers who received reduction-in-force
(RIF) notices during the 2008-2009 and 2009-2010 school years—primarily on a
first hired, last fired model. It then compared these seniority-based layoffs
to a number of proposed performance-based layoff models—each using a different
metric for value-added. In a computer simulation, the seniority-based model
caused student learning to lag by two to four months compared to a
performance-based model, and under it African American students were 50 percent
more likely to have their teachers laid off than were white students (compared
to 20 percent more likely in the performance-based scenario). Further, the
study found that performance-based layoffs would save up to 10 percent of the state’s
teacher workforce, as fewer tenured, higher-paid teachers would need to be
pink-slipped to meet budget quotas. Many states, including Fordham’s home state
of Ohio, have laws
that require all teacher layoffs to be based on seniority alone—laws that, in
light of this study’s findings, legislators would do well to cut.
Review: Accountability in Action: A Comprehensive Guide to Charter School Closure
While it’s no one’s idea of a good time, there’s
doubt that charter authorizers need to get better at shuttering bad
schools. To that end, this guide
from NACSA pulls together solid advice from consultants, lawyers, and charter
authorizers on how to support students and families through the closure
process. It also supplies the reader with appendices providing sample
school-closure material—from a forty-seven step action plan to a press release
and resolution for charter revocation. Although the fill-in-the-blank nature of
some of these documents arguably belong in a black and yellow How to Close a
Charter School for Dummies, the sample action plan for charter-school closure is
explicit and useful, detailing a timetable and point-person for tasks ranging
from U.S. Department of Education filings to the simpler to-dos like compiling
parent contact information. This guide may not provide political cover. But, if
used widely, it will help to ensure that quality prevails in the charter
Review: Race to Nowhere
While surely not the norm in American education
today, the daunting, competitive, and stressful world in which some affluent U.S.
students live is still worthy of attention—and a movie. Race to Nowhere, a new film by mother-come-documentarian Vicki
Abbels explores the negative effects of the high-stakes, highly competitive
world of middle-to-upper class families. It argues that, when students begin to
over-prioritize GPAs and college applications, learning becomes an
afterthought, not the primary focus of education. This is a common meme—see
books from the same genre, such as Pressured
Parents, Stressed out Kids and Doing School.
But Vicki Abbels, the film’s director, deserves credit for including some oft
overlooked subgroups of American students. Along with the affluent, she
connects with a few high schoolers from lower-income families, pressured by
their parents to win college scholarships or to be the first in the family to
attend post-secondary school. This grassroots documentary has caused quite a
stir in well-to-do communities and surely adds to the current debates on A.P.
restructuring, “Chinese parents,”
and the American education system writ large. Unfortunately, while Abbels and
her team do well framing the issue—creating overworked, sleep-deprived,
college-application-obsessed kids is no good—her proposed solutions disappoint.
In fact, she offers but one, simple and inadequate: Assign less homework.
Vicki Abbels, director, “Race to Nowhere,” (Lafayette, CA: Reel
Link Films, 2010).
From The Web
The Education Gadfly Show Podcast: Only the good die young
Mike welcomes Stephanie Saroki of Seton
Education Partners to this week’s Pardon the Gadfly. They lament Catholic
school closures in NYC, opine on virtual education, and get heady talking
ethnic-studies courses. Amber offers more proof on the detriments of “last
hired, first fired” and Chris shakes his fist at do-gooders who want kids to
drop out of school.
to listen to the podcast, download it onto your computer, or subscribe to it
via iTunes. (Podcast will be available at 6:00PM, January 20.)
Flypaper's Finest: School boards: Our indicator species
By Peter Meyer
A few months ago, chatting with my brother-in-law, a
former executive at the National School Boards Association, I suggested we
collaborate on a book called Saving School Boards.
There was a pause. “Do they need saving?” he asked.…
Click to read the rest on Flypaper.
Flypaper's Finest: Buy me!
By Liam Julian
David Brooks is a New York Times
columnist, and boy does he know how to write 750 words that will rocket to the
top of his paper’s most-e-mailed list. Here’s his basic recipe. First, pick a
topic in the sociology realm, preferably something sort of vague, with
Malcolm-Gladwell-ish overtones (or, better yet, apply explanatory social
science to some newsy situation). Second, boil down complicated ideas until
you’re left with the thickest residue; deglaze it with short, choppy,
declarative, simple-to-read sentences.…
Click to read the rest on Flypaper.
Gadfly Studios: Event trailer: Are Bad Schools Immortal?
Do you drive past low-performing schools and feel a
bit like Billy Murray? Join Fordham and a crackerjack set of panelists on
Groundhog Day, February 2, from 3:30 to 5:00PM, for a lively conversation on
bad schools—and how they just don’t ever seem to go away. Find out more
or RSVP here.
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Briefly Noted: Call me anytime
- The National Council
on Teacher Quality officially announced their newest project, monumental but
oh-so-necessary: reviews of all 1,400 of
America’s education schools. For a sneak-preview
of what to expect, check out their Illinois and Texas reports.
- Are the teachers unions
finally caving? Probably not. But the AFT has education reformers hoping with
of a new plan, meant to be used for future collective-bargaining
negotiations. The plan would expedite the teacher dismissal process and revamp
- Marguerite Roza explains
on NPR just what new school funding formulae
should look like in the modern era. Hint: They’d be a whole lot more flexible.
- Parents who are annoyed
with pre-dawn wakeup calls from school districts announcing snow days: Take a
page out this Maryland father’s playbook. To avenge his lost sleep at the hands
of a district’s automated caller service, the parent created
a robocall of his own, set to telephone district
leaders at 4:30 one morning, thanking them for their snow day reminders.
- When students act up, or disrupt or cut class,
Texas school districts discipline them not with detention slips but with class
C misdemeanor tickets. Tickets can cost the
family as much as $500 a pop.
Announcement: Show your school spirit during School Choice Week
For the school-choice
advocates in the crowd, January 23-29 is National School Choice Week. Events
are held across the country, but those of you in the Columbus, Ohio area at
6:00PM on January 25 get a special treat. Fordham’s own Terry Ryan will join
School Choice Ohio for a look at the school-choice terrain in the Buckeye
State. Learn more about the event here, and about the week in general here.
Announcement: Common Core internship available
If you’re a motivated,
intelligent, and creative individual with a keen eye for research and keen
thirst for a balanced curriculum in K-12 education, then look no farther than
Common Core—a D.C.-based organization promoting a rich K-12 curriculum that is
hiring for a research intern. To apply, send a 3-5 page writing sample, resume,
and cover letter here.
Fordham's featured publication:
School Autonomy: A Half-Broken Promise
The typical charter school in America today lacks the autonomy it needs to succeed, once state, authorizer, and other impositions are considered. See how authorizer contracts, federal policy, and local statutes affect charter autonomy in your state—and how they compare with