What’s Happening with School Choice?

May 13, 2013
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During the session, the Arkansas General Assembly passed Act 1227, the Public School Choice Act of 2013, which allows for open school choice with two main limitations. First, it allows school districts to declare an exemption if the district is subject to a desegregation order or mandate of a federal court of agency remedying the effects of past racial segregation. This decision is left entirely to the school districts, with no real approval necessary from state education officials. There’s increasing discussion about how broad this provision really is. It can be argued, at least in my opinion, that every district in the state could declare an exemption under this provision. Every school district in the state, or its predecessors, once operated legally segregated schools pursuant to state law, and in turn, every school district is subject to the mandate of Brown v. Board of Education to remedy the effects of that segregation. I don’t think this is what the General Assembly intended, but there’s certainly an argument to be made. Several school districts have already declared such an exemption.

Second, the Act caps the number of transfers outside of the school district, less any transfers into the district, to no more than 3% of the school district’s third-quarter average daily membership for the preceding school year. Current transfers under the old school choice law are specifically not voided by the new law, and are to be considered transfers under the new law going forward. There’s no mention about what happens if current transfers under the old law already surpass the 3% cap. I don’t know if this is potentially a problem for any school district.

In addition, the Act repealed the old school choice law, which was challenged by students seeking to transfer out of the Malvern School District and was declared unconstitutional by Judge Dawson last year. The State appealed to the Eighth Circuit Court of Appeals, and just last week, the Eighth Circuit asked for supplemental briefing from the parties, intervenors, and interested amici about whether the case is moot or if the voluntary cessation doctrine applies, in light of the legislature’s repeal of the law. Courts don’t issue advisory opinions, and in this case, because the state has voluntarily stopped operating under the law at issue, I think there’s a very good chance the Eighth Circuit will rule that the case is moot and avoid issuing a ruling on the merits. Either way, transfers will proceed next year under the new law, with the applications for new transfers, June 1, fast approaching. I suspect that in the coming weeks, we’ll see more school districts opt out.

Kentucky Court Holds Miranda Warnings Required At School

April 26, 2013
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In an opinion handed down yesterday, N.C. v. Commonwealth of Kentucky, the Kentucky Supreme Court held that a student’s confession to an assistant principal and school resource officer of giving away prescription narcotics at school could not be used against him in a criminal proceeding because the student had not been given Miranda warnings prior to the confession.  After finding an empty prescription pill bottle for hydrocodone in the boy’s bathroom at Nelson County High School, the assistant principal and the school resource officer (SRO), a deputy sheriff assigned to the high school who was wearing a uniform and was armed with a gun, escorted N.C. out of class and into the principal’s office and closed the door. The pills had been legally prescribed to N.C., and his name was on the bottle. The assistant principal had knowledge that N.C. had given some of the pills away before taking him out of class. During the questioning, in the presence of the assistant principal and the SRO, N.C. admitted that he had given two pills away to a classmate. Only after N.C. confessed did the SRO tell N.C. that he would face criminal charges.

N.C. was charged with Possessing and Dispensing a Controlled Substance, a class D felony under Kentucky law. The only basis for the criminal prosecution was N.C.’s confession to the assistant principal and the SRO. N.C. moved to suppress the confession, but the lower courts ruled against him. The Kentucky Supreme Court began its analysis by observing whether N.C. was in “custody” at the time of his confession. The general rule is that Miranda warnings are required anytime an individual is (1) questioned by law enforcement, and (2) is in custody. There’s no question here that N.C. was questioned by law enforcement, so the issue turns on whether he was actually in custody at the time of the confession. The court found that the facts of this case indicated that N.C. believed he was in custody during the questioning, as he was taken from class by the SRO, placed in a room with the door closed, and was never told that he had the right to leave. According to the court, the facts indicated that N.C. believed the questioning was only a school discipline proceeding, as he was never told otherwise. The court held that based on the circumstances surrounding the questioning, N.C. was in custody, and thus should have been given Miranda warnings.

The Kentucky Supreme Court recognized that maintaining discipline in school is of great importance, but observed that the school’s interest in maintaining an appropriate and safe school environment must be balanced against a child’s constitutional rights anytime the juvenile justice system is involved. The court created somewhat of a bright line rule by ruling that school personnel may question a student freely when the matter concerns school discipline or safety alone, but when law enforcement is involved, or a school official is working in concert with law enforcement, and statements from the student may be used in criminal proceedings against the student, the student must be given Miranda warnings.

The Tim Tebow Bill: What’s Wrong With It?

April 12, 2013
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To some, nothing, which is why it’s probably going to pass, if it hasn’t already, through the Senate Education Committee this morning with flying colors. I’m talking about HB1789, dubbed the Tim Tebow bill in Arkansas and in other states contemplating such legislation, because it allows home-schooled students to participate in public school athletics and interscholastic activities, which is how Tim Tebow got his start in football. But what is the real purpose of the bill? Is it to find the next Tim Tebow in Arkansas to lead the Razorbacks to the National Championship? Well, probably not. Is it to give an equal opportunity to all children to participate in everything from football to quiz bowl? Maybe. Or is it really to encourage home-schooling, since in the past home-schooling has been often discouraged and even stigmatized by the general public? Maybe I’m cynical, but I vote for the latter.

So why do I not like this bill? Well, first, I don’t agree with home-schooling in general. With few exceptions (and I realize there are a few), children who are home-schooled do not achieve the same level of education as those who attend a public or private school. I’m not just talking about ACT scores or the ability to read. I’m talking about socialization, and learning how to get along with others who are different from you. I know not all home-schooled students are sheltered, but I dare to say that some probably are, and it’s a bit of an awakening the first time they walk onto a college campus or into the workplace. Being in school at a young age teaches kids how to live in society, how to appropriately disagree with others, and how to follow rules. I realize that many home-schooled students are involved in church or community activities with peers, but we tend to go to church and live in communities with others like us. We don’t always go to school or work with others like us, because we don’t usually have that choice.

Second, I just don’t think home-schooling is necessary. Call me an optimist, but I think our public schools, at least here in Arkansas, do a pretty good job, or at least do as good of a job as an average parent at home can do. I know there are exceptions, and I realize that some students, particularly those with special needs, struggle in school but can excel at academics when taught in a more personal environment, like at home, and some students need to be home-schooled for at least a temporary period of time due to medical needs or health reasons. And there’s always the child prodigy who is home-schooled so that he or she has time to practice their violin for six hours per day so that they can go to Juilliard at age 14, but again, those are rare. In my opinion, for the average student, our public schools can do a good job, especially with a parent at home that cares and stays involved in their child’s schoolwork.

Finally, with regards to this particular bill, I just don’t think it’s fair that parents who have not supported their local public schools in the past should have the option for their child to “pick and choose”, so to speak, what part of the local schools they wish to take advantage of. There’s typically low voter turn-out and support in school board member and millage elections from parents who home-school their children or send their children to private schools. Local schools thrive with community support, and maybe this bill will result in an increase of support in general, but I don’t think it’s fair that a parent who doesn’t support their local teachers can now be able to support the local coaches.

Legislative Update

April 3, 2013
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I haven’t posted a legislative update in a while, so here are a few important happenings from this week:

Yesterday, HB1897, the Parental Choice Scholarship Program, failed on a voice vote in the House Education Committee. This bill, if passed, would have been by far the broadest school voucher program in the country, even broader than the Indiana program I wrote about last week. The bill would allow every student in Arkansas, regardless of income, to participate, and would provide that student with a scholarship in the amount of 92% of the per pupil foundation aid that public schools receive. The funds would come out of the funding provided to the student’s resident school district, but the student would still be counted in the resident district’s ADM and that district would continue to receive the remaining 8% for that student. The bills allows all kinds of schools to participate in the program and receive scholarship students, including charter schools, magnet schools, private schools, alternative schools, and even public schools outside of the student’s resident school district, essentially allowing open school choice for all students, should those public schools choose to participate. The parent is responsible for any costs of attendance over what the scholarship amount covers. All in all, this bill leaves a lot to be desired. There’s no academic accountability for private schools, and the bill discourages poor students from participating, as their parents are unlikely to be able to afford any additional costs of attendance over what the scholarship covers. The House Education Committee sent the bill to interim study, which is where many bad (and sometimes good) bills go to die.

The House Education Committee did pass HB1938 yesterday, which places a moratorium on the closure of schools by the State Board of Education for enrollment purposes until April 30, 2015 and orders a study of transportation costs in rural schools. This doesn’t affect a school district’s decision to close a school on its own, unless the school is an isolated school. If the school is an isolated school, and the school board vote is not unanimous (which is usually the case, as the member from that school’s zone usually opposes the closing), then the State Board of Education has to approve the closure by statute. This bill disallows those closings as well, which could have a negative financial impact on districts that have these isolated schools within their borders. This is a slippery slope to say the least.

CORRECTION: I must have misread the General Assembly website. This bill failed in the House Education Committee. It may be brought back up again though.

And for something not related to education, thank you to Sen. Joyce Elliott for again trying to pass SJR19, which would ratify the Equal Rights Amendment to the U.S. Constitution. The Equal Rights Amendment, which has never been ratified by enough states to become part of the U.S. Constitution, states that no rights shall be denied or abridged by the federal or state government because of a person’s sex. It amazes me that in 2013 we’re even having this discussion, but what really amazes me is that any woman could ever vote against this, but Sen. Jane English did yesterday in the Senate State Agencies Committee meeting.

 

School Vouchers Constitutional in Indiana

March 27, 2013
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Yesterday, the Indiana Supreme Court issued an opinion upholding the state’s private school voucher program, which some have called the broadest in the nation. In Meredith v. Pence (the full opinion can be found on the court’s website), the court held that the program did not violate the state’s constitution, but cautioned that the public policy issues surrounding the program were not within the court’s purview.

The Choice Scholarship Program provides scholarships for eligible students to attend participating nonpublic schools of their choice. To be eligible, a student must live in a home with a household income of no more than 150% of the amount required to be eligible for the federal free/reduced-price lunch program. This allows not just low-income, but also many middle class families, to take advantage of the scholarships. A participating nonpublic school must meet minimum instructional standards, but the statute is silent as to the religious affiliation of the school, and parents are free to select any participating school of their choice.

The plaintiffs, led by the Indiana State Teachers Association, made essentially two arguments. First, they argued that the program violated the state constitution’s Education Clause, which requires the legislature to provide a free and open public school system. In support of this argument, the plaintiffs alleged that because of the program’s broad eligibility, as many as 60% of the state’s public school students could be diverted into nonpublic schools. The court rejected this argument, finding that even if maximum participation in the voucher program was reached, though the plaintiffs had offered no evidence that this would ever be the case, the General Assembly had fulfilled its duty under the Education Clause as long as it continued to maintain a public school system. The court held that there was no evidence to indicate that maximum participation by students would eliminate the public school system.

Second, the plaintiffs argued that the program violated the state’s constitutional provisions regarding religion by appropriating tax dollars for the benefit of religiously affiliated institutions. The court held that in order to run afoul of the constitution, the government expenditures must directly benefit the religiously affiliated institution, rather than only substantially benefit the institution. To make this distinction, the court used the example of fire and police protection and water and sewage services, which, in the court’s opinion, substantially but indirectly benefits many religiously affiliated institutions, yet directly benefits the public. Because the scholarship program gave parents the choice of which nonpublic school, some religiously affiliated and some not, to send their children, the court reasoned that any benefit to the religiously affiliated schools would be indirect. The direct benefit would be to the families, not to the schools, and as such, the program did not violate the religious clauses.

It’s important to note that this case was decided solely on the state’s constitution, not the U.S. Constitution, and because the language in every state constitution is different, its unlikely that this case will have significant implications in any other state. This is, though, a big win for Republicans in Indiana, who have already filed a bill to further expand the program.

60 Years after Brown v. Board, Segregation Lingers in Mississippi

March 22, 2013
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This probably doesn’t come as much of a surprise. Just look around many small towns and big cities alike throughout the deep south, and you’ll find that many public schools in this part of the country are predominately one-race. This is mostly due today to housing patterns and so-called “white flight” where many white families move to majority-white towns and suburbs or enroll their children in private schools. However, one town in Mississippi is being accused by Justice Department officials of purposefully and continually operating predominantly one-race schools after all of these years. That town is Cleveland, Mississippi.

Prior to Brown v. Board, the public school district in Cleveland operated a dual school system separated by a set of railroad tracks. The railroad tracks are no longer there, but the schools east of the former tracks remain almost 100% black while the schools west of the former tracks remain predominately white. The district operates two high schools: East Side High School, which is 100% black, and Cleveland High School, which is racially integrated, with white and black students each comprising about 50% of the student body. The high schools are only about a mile apart. The Justice Department has argued to a federal judge that the operation of the two schools violates previous desegregation orders, while the school district continues to argue that Cleveland High School is the only racially integrated high school in the region, and that consolidating the two high schools, which would result in a school that would be approximately 75% black and 25% white, would lead white families to flee the area or enroll their children in private schools.

Many of the neighboring school districts have high schools with a student enrollment close to 97% African American. African Americans significantly outnumber the white families living in this part of the state. The Cleveland School District prides itself as having a racially integrated high school, and those who oppose consolidating the two high schools, which includes the school board president who is also African American, argue that consolidation will drastically increase white flight and lead to a predominantly African American high school, similar to neighboring high schools.

The federal judge has not ordered consolidation as of yet. Rather, he ordered the district to operate under an open-attendance policy, where students can attend the school of their choice regardless of attendance zones. The Justice Department and other proponents of consolidation have argued in response that many black students already have the opportunity to transfer to schools outside of their attendance zone, and while many have chosen to do so, there is not adequate capacity in the white schools to honor all transfer requests, and in addition, no white students have chosen to attend any of the black schools.

This litigation is currently ongoing, but a decision from the judge is expected later this year. You can read more about this case here.