Corporal Punishment Upheld Once Again

April 8, 2014

I often get questions from parents regarding the current state of corporal punishment, both in Arkansas and across the country. Corporal punishment in public schools, as antiquated as it may seem to some, is still alive and well in 19 states, with Arkansas being one of them. Though many education and child advocacy groups continue to fight against the use of corporal punishment, courts continue to uphold it.

Last month, in Clayton ex rel. Hamilton v. Tate County School District, the Fifth Circuit Court of Appeals became the latest federal appellate court to uphold the constitutionality of corporal punishment. The plaintiff, an eighth-grade student at Independence High School in rural Mississippi, was struck three times on the buttocks with a paddle by the school’s assistant principal, which left visible bruises. A few seconds after being paddled, the plaintiff fainted and fell onto the concrete floor in the school’s hallway, shattering five of his teeth and breaking his jaw. The plaintiff, through his mother, filed a lawsuit against the school district and the assistant principal, arguing that the excessive paddling was a violation of the plaintiff’s Eighth and Fourteenth Amendment rights. The federal district court dismissed the complaint, and the plaintiff appealed.

The Fifth Circuit Court of Appeals, with little discussion, refused to revisit the U.S. Supreme Court’s decision in Ingraham v. Wright, 430 U.S. 651 (1977), in which the Supreme Court held the Eighth Amendment’s prohibition against cruel and unusual punishment does not apply to corporal punishment in schools. The plaintiff argued that changing societal norms warrants a reconsideration of that ruling, but the Fifth Circuit disagreed. The Court explained, as did the Supreme Court in Ingraham, that though changing societal norms may affect whether a particular form of punishment is “cruel and unusual” in other contexts, it will not affect whether the Eighth Amendment applies to corporal punishment in public schools. The Fifth Circuit also rejected the plaintiff’s claim that school district’s actions violated the Equal Protection Clause by subjecting boys to corporal punishment more than girls.

As far as the courts are concerned, corporal punishment is here to stay.


California Tenure Law Challenged

March 31, 2014

A hotly contested lawsuit in California could pave the way for teacher tenure law reform across the country. The education advocacy group, Students Matter, filed suit in 2012 against the State of California on behalf of nine California public school students seeking to strike down five state teacher tenure statutes. The plaintiffs, in Vergara v. California, argue that these statutes force retention of grossly ineffective teachers and that a disproportionate share of these ineffective teachers work in poor and minority schools. This leads to discrimination against underprivileged children in the public school system by denying them equal educational opportunities, thus violating the equal protection provision of the California Constitution.

The statutes being challenged require school administrators to either grant or deny full tenure to new teachers within 18 months of their employment, which the plaintiffs argue is too soon to fully assess a teacher’s effectiveness. Once tenure is granted, the plaintiffs argue that it is too difficult to terminate a teacher for poor performance. Dismissal statutes require strict and lengthy procedures, years of documentation, and a significant amount of public funds in order to dismiss a teacher. According to the plaintiffs, only 91 public school teachers have been dismissed in the entire state of California over the past 10 years, with only 19 of those dismissals being based on poor performance. Finally, the plaintiffs challenge the state’s “Last-In, First-Out” layoff statute, which requires that newly hired teachers be dismissed first when a reduction in force is necessary. According to the plaintiffs, this statute requires schools to often keep ineffective teachers simply because of their seniority over newer, motivated teachers.

The California Teachers Association and the California Federation of Teachers have intervened in the case and join the State in defending these statutes. Last week, the judge heard closing arguments from both sides. A ruling is expected sometime after April 10.


Kansas Supreme Court Finds Education Funding Unconstitutional

March 14, 2014

Last year, I wrote here about the ongoing education funding woes for Kansas public schools.  Last year, a three-judge district court panel ruled that public school funding in Kansas was inadequate and inequitable.

Earlier this week, the Kansas Supreme Court issued an opinion in Gannon v. State of Kansas affirming the lower court’s ruling that wealth-based disparities in funding between school districts is unconstitutional. As in Arkansas, the Kansas Constitution requires two components of public school funding to be met: adequacy and equity. The Court ruled that the state legislature’s withholding of certain supplemental general state aid payments and capital outlay equalization payments, which had been made available to school districts based on their local property tax authority in an effort to equalize funding across districts, created unconstitutional wealth-based disparities among school districts.

The Court reversed the lower court’s rulings that the overall level of funding was inadequate, however, finding that the lower court applied the wrong standards. The Court remanded the case to the lower court to made an appropriate adequacy determination. The Court reiterated that total spending alone did not determine whether funding meets the adequacy requirement. Rather, methods and outcomes need to be considered.

The Court gave the state legislature until July 1, 2014 to take action to cure the issue.

2014 Fiscal Session Starts Today

February 10, 2014

When the voters of Arkansas approved Amendment 86 to the Arkansas Constitution in 2008, I dare say that most of them didn’t know what they were really getting themselves into. That amendment, of course, requires appropriations to be passed annually rather than every two years, resulting in the requirement that the General Assembly meet in a limited fiscal session during the years in between the general sessions. Because general sessions always occur in odd-numbered years, fiscal sessions occur during even-numbered years.

At first thought, the idea of yearly budgeting seems reasonable. Budgeting for one year in advance sounds easier than budgeting for two. What voters may not know, however, is that partly due to the sheer amount of time necessary to construct a state budget of $5 billion, and partly due to the fact that Arkansas has always budgeted on a biennial basis and things have always worked out just fine, the state continues to budget on a biennial basis, meaning that the only thing actually required of legislators during a fiscal session is a quick “rubber-stamp” of appropriations that have already been planned and approved during the previous year’s general session. This, however, costs taxpayers a lot of money, as in addition to their salary (as meager as it is), legislators receive a per diem for attending committee meetings and are reimbursed for things like housing and travel costs while in Little Rock.

With that being said, what’s even worse than the cost of having to rubber-stamp what’s already been decided is the cost of giving an opportunity for legislators to completely rehash, often for political purposes only, what’s already been decided. There are several examples of this you’ll see this year’s fiscal session, which started today. The most notable may be the fight over the Medicaid Private Option appropriation. Another example is this proposed resolution filed today to consider a bill to delay implementation of the Common Core State Standards in Arkansas, though implementation has already began. I don’t expect this to go anywhere, as it takes a 2/3 vote in both the House of Representatives and the Senate to consider non-appropriation bills during the fiscal session, and I don’t think the resolution will have that type of support. Even so, back to my original point, what a waste of time and money.

Federal Court Issues Preliminary Injunction in Gender Discrimination Case

February 3, 2014

A federal district court in Pennsylvania has issued a preliminary injunction to prevent the Line Mountain School District, a public school district located in the small town of Herndon, Pennsylvania, from prohibiting a female student from participating on the boys’ junior high wrestling team. The female student at the center of the case, identified by the court only as A.B., attends 7th grade at Lion Mountain Middle School, and has wrestled on co-ed wrestling teams since the third grade, practicing and competing against both boys and girls. When A.B. reached the 7th grade, she became too old to participate in the school district’s co-ed youth team, but was denied participation on the district’s junior high team due to her gender pursuant to a school district policy preventing female students from participating on boys’ varsity, junior varsity, or junior high athletic teams. A.B. filed a lawsuit against the school district, arguing that the district’s policy constitutes unlawful discrimination on the basis of sex in violation of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution and the Equal Rights Amendment to the Pennsylvania Constitution.

The school district’s policy was put in place due to safety concerns stemming from the physiological differences between male and female athletes. The school district articulated three specific reasons for preventing girls from participating on the boys’ wrestling team: (1) girls are at a greater risk of injury due to the anatomical differences between males and females; (2) girls are at a greater risk of experiencing inappropriate sexual contact and harassment due to their anatomical differences; and (3) there are perceived emotional, psychological, and moral risks for girls wrestling boys.

In its opinion*, the court explained that in order to obtain a preliminary injunction in any case, the court must consider: (1) whether there’s a reasonable probability of the plaintiff’s success on the merits; (2) whether the plaintiff will be irreparably harmed by denying the injunction; (3) whether there will be greater harm to the defendant if the injunction is granted; and (4) whether granting the injunction is in the public interest.

In considering the probability of A.B.’s success on the merits in this case, the court began by explaining that a government defendant seeking to uphold a policy that classifies individuals on the basis of gender must demonstrate an “exceedingly persuasive justification” for the classification, and to survive this type of intermediate scrutiny, the “classification must be substantially related to an important governmental objective.” (Citations omitted). Therefore, the burden is on the school district to explain why its policy meets this standard. With regards to the three main justifications for the district’s policy as outlined above, the court found that though student safety was a substantial governmental interest, preventing girls from wrestling was not substantially related to that interest. The district failed to present any evidence that A.B.’s safety was at greater risk simply because she is a girl other than generalized physiological assumptions. In addition, the district could not sufficiently establish that girls are at a greater risk of sexual contact or harassment than boys in order to justify the policy. The district acknowledged that the sport of wrestling presents opportunities for inappropriate sexual contact regardless of the athlete’s sex, and could not offer any evidence of specific instances where this type of conduct had occurred. Finally, the district could not adequately articulate any alleged psychological or moral degradation stemming from girls wrestling boys. Though the district offered testimony that there is a “certain moral wrongness” for girls to wrestle with boys, the court found that this perception alone, though well-intentioned, does not rise to the level of an important government interest. As such, the court found that A.B. had demonstrated a likelihood of success on her claims.

In addition, the court found that without a temporary injunction, A.B. would suffer irreparable harm in her development as a wrestler, as there were no other available opportunities for her to practice and compete in this sport near her home. The district, on the other hand, presented no evidence as to any harm it might suffer should the temporary injunction be granted. Finally, the court determined that there was no public interest harmed by granting a temporary injunction. For these reasons, the court granted a temporary injunction, allowing A.B. to participate on the boys’ wrestling team for now. A full hearing on the merits to consider whether a permanent injunction should be granted may be scheduled at some future date.

* Opinion link via the National School Boards Association.

Pulaski County Desegregation Settlement Approved

January 17, 2014

Last fall, I wrote here that the Pulaski County school desegregation case was close to a potential settlement. That settlement received final approval from Judge Price Marshall earlier this week, thus ending decades of desegregation litigation between the State and the three Pulaski County school districts. The State will continue to pay the nearly $70 million in desegregation aid to the three districts for the next three school years. The districts will receive the same amount of money in the fourth year, but it will be designated for academic facilities use only. The settlement also paves the way for Jacksonville to break away from the Pulaski County Special School District and form its own independent school district. Pulaski County is the only district of the three involved in this litigation that has not been declared completely unitary, and that district will continue to work through its desegregation issues. Judge Marshall heard comments from those opposing the settlement agreement, which included magnet school parents and a group of individuals from Sherwood who, like Jacksonville, also wish to break away from the Pulaski County Special School District.

So this begs the question: Are Pulaski County schools, particularly Little Rock, which drew national attention in 1957 for its efforts to prevent nine black students from enrolling at Central High School, finally desegregated? Though legally the answer is “Yes”, I think most who live in Little Rock would agree that the practical answer is “No”. Though the Little Rock School District receives national accolades for Central High School’s academic performance, racial tensions linger, and many white parents continue to pull their children out of the public school system after elementary school rather than send their children to one of the city’s failing middle schools. Little Rock still has a long way to go before it can say that every student at every school, regardless of race or neighborhood, can receive a high quality public education. The end to this litigation though, at least for some, is seen as a step in the right direction.