The Battle Over Common Core Continues

July 25, 2014
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The State of Louisiana is in the news once again, and it’s certainly not a glowing endorsement of the current status of the state’s public education system. Not one, but two lawsuits have been filed this week alone regarding the State’s implementation of the common core state standards. Initially, forty-five states plus the District of Columbia voluntarily adopted the common core state standards, with Louisiana being one of them. Most states began implementation of the standards several years ago, with the plan to have the standards fully implemented by the 2013-2014 school year and to implement new common assessments in the 2014-2015 school year. Louisiana state education officials have been working diligently over the past few years to fully implement these standards and prepare schools, teachers, and students for the implementation of the common assessments scheduled to begin this upcoming school year. Louisiana Governor Bobby Jindal (R), a presidential hopeful in 2016, supported the common core initially, but recently, changed his position amid new found opposition from many extreme conservatives.

Last spring, several conservative members of the Louisiana Legislature introduced measures to weaken or repeal Louisiana’s adoption of the common core state standards and assessments. These measures fell short, and on June 18 of this year, Governor Jindal took matters into his own hands by issuing two executive orders in an attempt to prohibit the use of the common assessments for the 2014-2015 school year and directing the Louisiana State Board of Elementary and Secondary Education (BESE) to authorize other assessments, less than two months before the beginning of the school year. Louisiana Education Superintendent, John White, and the BESE are at odds with Jindal over the issue, and White has stated that Louisiana will move forward with the common core and assessments regardless of Jindal’s opposition.

On Monday, July 21, seventeen state legislators, those behind the effort to repeal the adoption of the standards this past spring, filed a lawsuit arguing that the adoption and implementation of the common core violated the state’s Administrative Procedures Act, which requires public comment on state policy and rule changes. The very next day, common core supporters, including teachers, parents, and the charter school organization, Choice Foundation, filed a lawsuit against Governor Jindal and members of his administration, alleging that Jindal’s executive orders violate the Louisiana Constitution, which grants exclusive authority to the Legislature and BESE to set and implement education policy. The Plaintiffs argue that Jindal’s actions have usurped the constitutional and legislative authority of the legislature and BESE and have caused confusion and anxiety among school administrators, teachers, parents, and students. The Plaintiffs seek declaratory and injunctive relief to prevent Jindal’s executive orders from taking effect. A preliminary injunction hearing is scheduled for August 4.

Note: For a timeline of Arkansas’s implementation of the common core state standards and common assessments, please seek this link

Special Session Starts Today

June 30, 2014
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I’ve written briefly about the problems with teacher health insurance in Arkansas in the past here, here, and here. Last fall, Governor Beebe called a special session in order to find a solution to the projected 50% increase in premiums for teachers that was slated to begin this past January. A short-term solution was implemented, and public school employees saw a much smaller premium increase than originally feared. For the most part, this was only a one-year solution, and again teachers and other public school employees were scheduled to face a premium increase as high as 35% for the 2015 plan year.

Governor Beebe has called a second special session, scheduled to begin today, in order to find a more long-term solution. A legislative task force has been at work on this issue, and they’ve found a solution that will reduce the 35% premium increase to an average of only 3%. This is only an average. Some public school employees may see an increase in premiums of more than 3%, while some may see their premiums decrease. In order to accomplish this, the task force is proposing:

  • Transferring $4.6 million per year from school district funding to the public school employee health insurance plan;
  • Making part-time public school employees ineligible for coverage;
  • Making spouses of public school and state employees ineligible for coverage if they are offered health insurance through their employment; and
  • Limiting coverage for certain weight loss procedures.

No bills have been filed as of the time of this original post, but I’ll update here as they are.

 

UPDATE:

As expected, all bills passed with flying colors. Here are the bills that have been submitted to the Governor for signature:

HB1003

HB1004

SB3

SB4

 

Why Inappropriate Relationships Between Teachers and Students are Still Prohibited.

June 25, 2014
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I’ve received a few questions lately from school administrators and educators concerning the current state of the law with regards to student-teacher relationships. Specifically, I’ve been asked if criminal charges can be filed against a teacher who has a sexual relationship with a student over the age of 18. If you remember, the Arkansas Supreme Court struck down a statute criminalizing such behavior in 2012, and since that time, there’s been a lot of misconception about what that decision really meant and how the Arkansas General Assembly addressed the issue. I thought this would be a good time to address these questions and clear up any misunderstandings that may still exist.

In 2012, the Arkansas Supreme Court issued a decision, namely Paschal v. State, 2012 Ark. 127, in which the Court ruled that a state statute that criminalized a teacher’s consensual sexual relationship with a student under the age of 21 was unconstitutional as applied. Mr. Paschal was a high school teacher that had a sexual relationship with an 18 year old student. He was convicted of four counts of second-degree sexual assault pursuant to Ark. Code Ann. § 5-14-125(a)(6), which provided at the time that “[a] person commits sexual assault in the second degree if the person [i]s a teacher in a public school in grade kindergarten through twelve (K-12) and engages in sexual contact with another person who is [a] student enrolled in the public school and [l]ess than twenty-one (21) years of age.” Paschal challenged the constitutionality of this statute, arguing that because the student was an adult at all times during the sexual relationship and because the relationship was consensual, which the State did not dispute, the statute infringed upon his fundamental right to have a private, consensual, sexual relationship with another adult. The Arkansas Supreme Court agreed, affirming that there is a fundamental right to privacy that protects all private, consensual, noncommercial acts of sexual intimacy between two adults. The Court distinguished this statute from another that criminalized a clergy member’s use of his or her position of authority and trust over an individual to engage in a sexual relationship with that individual. The Court upheld the constitutionality of that statute in the case of Talbert v. State, 367 Ark. 262, 239 S.W.3d 504 (2006),  in which the Court explained that the statute did not criminalize the defendant’s right to have a consensual, sexual relationship with another individual, but rather, it criminalized the defendant’s use of his position of authority and trust over the individual to engage in an unwanted sexual relationship. This was a key difference, and as the Court in Paschal pointed out, though it found Paschal’s conduct to be reprehensible, the Court could only analyze the statute as written. Paschal’s second-degree sexual assault convictions were dismissed.

After this case was handed down, many educators and parents felt that they were somewhat helpless in preventing teachers from having sexual relationships with adult students. This, however, wasn’t really the case. School districts have always had the authority to discipline or terminate teachers for inappropriate relationships with students. Paschal didn’t change this. In addition, such a relationship violates the Code of Ethics for Arkansas Educators, and teachers can face licensure suspension or termination for this conduct. Paschal dealt with criminal sanctions only, and in no way was meant to condone sexual relationships between teachers and students.

In 2013, the Arkansas General Assembly modified the statute at issue in Paschal through Act 1086 of 2013 to mirror the statute that was upheld in Talbert. Section 5-14-125(a)(6) of the Arkansas Code now provides that “[a] teacher, principal, athletic coach, or counselor in a public or private school in a grade kindergarten through twelve (K-12)” commits sexual assault in the second degree if he or she is “in a position of trust or authority, and uses his or her position of trust or authority over the victim to engage in sexual contact with a victim who is [a] student enrolled in the public or private school” and is “[l]ess than twenty-one (21) years of age.” This modification, based on the Court’s opinions in Talbert and Paschal, presumably brings the statute into compliance with the constitution, and again provides a mechanism for prosecuting teachers who have sex with their students. In theory, a purely consensual relationship between a teacher and an adult student is still protected, but it then becomes an question of fact for the jury in a criminal trial as to whether the relationship was, indeed, purely consensual or was the result of the teacher’s abuse of his trust and authority to influence the student. I’m no criminal lawyer, but I think it’s a pretty heavy burden in almost any case to persuade jurors that a teacher-student sexual relationship is not, at least in some way, the result of the teacher’s authority and influence over the student. I believe any prosecutor in this state could confidently file charges against any teacher pursuant to this new statute who has a sexual relationship with a student.

To be clear, teacher-student relationships are still criminal, are still prohibited (or should be) by school district administration, and are still highly unethical.

 

An Overview of the Teacher Fair Dismissal Act

May 20, 2014
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This time each year, I often get questions from readers and clients regarding the requirements of the Arkansas Teacher Fair Dismissal Act (TFDA). As teachers, many of my readers and clients want to know exactly how the TFDA protects them, so I’ve decided to do a brief overview of what the TFDA requires and a summary of the steps teachers can take when faced with a possible suspension or termination.

First of all, just to clarify, the TFDA applies to all individuals employed by a school district who are required to hold a teaching license as a condition of their employment, except for superintendents and assistant superintendents. This, of course, includes more than classroom teachers. Principals, counselors, and specialists are all protected under the TFDA as well. For simplicity in this post, I’ll use the term “teachers” as inclusive of all those protected.

Second, a teacher’s contract is automatically renewed on the same terms and for the same salary, except for adjustments pursuant to the school district’s salary schedule, each year unless the teacher is notified in writing by May 1 that the superintendent is recommending nonrenewal of the teacher’s contract after the school year. A teacher has until 10 days after the end of the school year to notify the school district of his/her intent to resign, and at any point, the parties can agree to different terms for a new contract.

In general, school districts have the ability to reassign teachers, modify job descriptions, do away with certain positions, and create new positions, all depending on the changing needs of the district. Teachers are not entitled by law to the same job every year. They are entitled to notification and the opportunity to be heard before the school board. What a school district cannot do is force a teacher into a different job or contract terms after the May 1 deadline has passed.

Third, a teacher can only be terminated during the school year for one of several reasons: (1) a reduction in force; (2) incompetent performance; (3) conduct that materially interferes with the continued performance of his/her duties; (4) repeated or material neglect of duty; or (5) other just and reasonable cause. These are broad categories, and almost any alleged teacher misconduct can be classified in at least one of these categories. The teacher must be notified of the recommendation and alleged grounds of termination in writing.

Fourth, a teacher can be immediately suspended if cause for termination exists and the superintendent believes immediate suspension is necessary. The superintendent must then notify the teacher within 2 days of the suspension in writing, again stating the grounds for termination and suspension. If a superintendent believes there are grounds for terminating a teacher during the school year, then the teacher will almost always be suspended pending the proceedings.

Once a teacher receives written notice of nonrenewal, suspension, or termination, the teacher can either accept the superintendent’s recommendation and resign, or he/she may request a hearing before the school board. When a teacher is suspended, the school district must continue to pay the teacher his/her salary until the school board either sustains the suspension or terminates the teacher. At no point can a teacher be suspended without pay before the school board has a chance to review the suspension. The teacher has 30 days from the date he/she received the written notice to request a hearing. On the date of the hearing, the teacher can request that the hearing be either open or closed to the public. The only grounds that the school board may consider in determining whether to suspend or terminate a teacher are those listed by the superintendent in the original written notice provided to the teacher. If the school board votes to suspend or terminate the teacher, the teacher may then choose to appeal the decision to circuit court.

This is only a brief summary, and does not address every situation. However, I hope that this information can equip teachers with the information necessary to make the right decision when faced with a notice of suspension or termination.

U.S. Supreme Court Upholds Prohibition on Racial Preferences

May 6, 2014
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Race-based admissions in higher education is a hot button issue, and I’ve written about this subject in the past here and here. Colleges and universities continue to struggle as they balance their desire for a diverse student body with the necessity that every student be given an equal opportunity for admission regardless of their race. There are no clearly drawn lines as to how race can be used in the admissions process, and colleges and universities are left to sort through this gray area on their own.

Last month, in Schuette v. Coalition to Defend Affirmative Action, et al, the U.S. Supreme Court once again faced a case concerning the issue of race-based preferences in college admissions. This case, however, is different than most. In 2006, Michigan voters adopted what is known as Proposal 2, which amended the state constitution to prohibit the use of race-based preferences in the admissions process for state-funded colleges and universities. The proposal was challenged by numerous plaintiffs, and in 2008, a federal district court granted summary judgment to the State of Michigan and upheld the proposal. The Sixth Circuit Court of Appeals reversed the district court, finding that Proposal 2 violated the equal protection rights of minorities.

The U.S. Supreme Court reversed the Sixth Circuit Court of Appeals, finding that Proposal 2 did not violate the U.S. Constitution or Court precedent. Justice Kennedy, who wrote the plurality opinion, began by explaining that this case is not about the constitutionality or merits of race-based admissions policies in higher education. The consideration of race in admissions is permissible as long as certain conditions are met. The question presented to the Court was whether, and in what manner, the voters of a State can choose to prohibit the consideration of race in college admissions. In upholding Proposal 2, Justice Kennedy addressed the Court’s earlier opinion in Washington v. Seattle School District, No. 1, 458 U.S. 457 (1982), the case most heavily relied upon by the Sixth Circuit. In Seattle, the city’s school board adopted a mandatory busing program to alleviate racial isolation in certain schools. In response, the voters passed a state-wide initiative that prohibited mandatory busing programs. The U.S. Supreme Court invalidated the initiative, finding that it removed the authority to address a problem from the existing decision-making body, which was the school board, in such a way as to burden minority interests. In order to seek relief from racially isolated schools, minorities were forced to reach out to the state legislature or the voters rather than the school board, which made the task much more difficult, if not impossible. The initiative in Seattle had the risk, if not the actual intent, of causing harm to certain individuals on account of their race. This “political process” theory, as it’s known, provides that it is unconstitutional for voters to change the way public policies are developed in order to hamper the development of policies that favor racial minorities.

In Schuette, the Court rejected the political process argument, essentially overruling part of the Seattle case. Justice Kennedy wrote that the political process theory was not essential to the result in Seattle, and that the theory wrongly assumed that racial minorities share the same views on public policy. Rather, voters should be allowed to speak about, debate, and learn about issues such as racial preferences in college admissions, and should be able to act through a lawful electoral process to shape the policies of their local government. It’s important to note once again that this case does not disallow racial preferences in college admissions. It simply allows the issue to be determined by the voters.

Justice Kennedy’s opinion is only a plurality, as it was fully supported by only Chief Justice Roberts and Justice Alito. It is the controlling opinion in this case however, as the end result was supported by Justices Thomas, Scalia, and Breyer, though on other grounds. Justices Sotomayor and Ginsburg dissented.

Corporal Punishment Upheld Once Again

April 8, 2014
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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.