• Home /
• BoardBuzz

April 23, 2008

In today’s op-ed in USA Today, Tony Mauro, decries the “cloak of secrecy” surrounding the Supreme Court. But, Mauro’s issues with the court stem not from the Court’s jurisprudence, its processes, or its fairness---all substantive issues of democratic concern, but more with the Court’s---or, rather the individual justices’---public persona. Mauro, a seasoned Supreme Court reporter wants more than just the justices’ opinion on the law. He wants access. And, he all but begs for personal interaction when he complains that the Court’s press corps only, “see[s] a lot of the justices when they are nominated and again when they leave the court.”

Now, BoardBuzz is all about access. Certainly, BoardBuzz sees itself as an elegant, albeit slightly askew, vehicle for providing access to all kinds of good stuff to you loyal BoardBuzzers, but we are rather nonplussed by what at first glance seems a somewhat adolescent infatuation with the persons of the justices themselves. Justice Scalia, afterall, is no Lance Bass. Is, Mr. Mauro really suggesting he wants to know who the justices are dating, whether they hung out with Paris Hilton last night or whether they sent their clerks scurrying for pictures of His Holiness on his recent visit? Well, no, of course, not. But, it does beg the question: what exactly is it that Mr. Mauro would want from the justices personally to tell the public in this democracy dependent on gossi… er, information? But, we digress.

And, to be fair, Mauro's article does have some good suggestions for educating the American people about the court: a video clip of Chief Justice Roberts discussing the court or giving a tour of its magnificent building; posting audio of all arguments, perhaps even video clips of the arguments. And, offering the Chief Justice’s annual report on the state of the judiciary at the American Bar Association sounds like a fine idea to us.

But, then all good things come to an end, don’t they. Before you go accusing us of being pessimistic, fatalistic and myopic, check out this: The op-ed says, "[The Court’s] members might be unelected, but the Supreme Court is the American people's highest court. It should not get to decide how invisible, how unaccountable, it will be." What!!!??? We were joshing around with the whole paparazzi bit, but this is beyond the pale. First, to equate the lack of personal access (as we expect from our elected representative) with unaccountability is laughable.

Judges are NOT politicians. And, they should not be subject to the kinds of access from special interests and even constituents that plow the halls of Congress. It can't be that the fact that the justices are appointed makes them unaccountable? Perhaps what was meant was "independence." As in, the framers of the Constitution intended the Supreme Court and the rest of the judiciary to have a clear independence from the other branches of government so that their rulings would be fair, equitable and impartial under the law and not subject to external pressures of the day. But, don’t listen to us, take a gander at what Justice O’Connor says on the importance of the independence of the judiciary.

Oh, wait, but you do know, Mr. Mauro, all about the independence of the judiciary. You once wrote Justice O’Connor herself issued a “rip-snorting defense of judicial independence” to the American Academy of Appellate Lawyers in Washington, D.C.

So, we’re left at somewhat of a loss. What’s Mauro's real beef with the High Court? Is it really concern for the public’s right to know the “disembodied oracles who decide life and death issues without ever making contact with the taxpayers who fund their salaries” as he so off-handedly states? Or, is this about the desire of the Fourth Estate to fill the ever insatiable appetite for information of any kind that seems to be prevalent these days?

We leave it to our able BoardBuzzers to cogitate (and comment, if you dare). But, we do close with this observation: Maybe the "one unelected branch of government[‘s] desire to thrive outside the limelight and above the fray" has more to do with making sure that people get fair treatment under the law than about fulfilling some puerile fantasy about denying the paparazzi. Period.

Posted at 12:24 PM | Link to this story | Comments (0)

April 10, 2008

BoardBuzz likes nothing more than to celebrate the achievements of our peers, and have we got a doozy today! Our friends over at Legal Clips have celebrated a major milestone in the subscriptions department. Clips is now at more than 10,000 subscribers. Congratulations go out to our Legal Clips team, NSBA staff: Tom Hutton, Tom Burns, Andrew Paulson, and Lisa Soronen.

This week's edition has a couple of interesting tidbits of note. The first is an excerpt from this story in the New York Times, with, as usual, some additional background and sources provided by NSBA, Connecticut reaches tentative settlement in landmark deseg case. The Times notes,

Schools in Hartford and 22 of its suburbs would be encouraged to open more classroom seats to children from outside their neighborhoods in order to increase racial diversity, under a tentative settlement reached Friday in a decades-old desegregation case. The settlement, which still requires the approval of Connecticut legislators and the state court handling the dispute, outlines a five-year plan whose goal is to get at least 41% of Hartford's minority students into schools where enrollments are no more than three-quarters minority. In the first year, the goal would be at least 19%. Approximately 94% of the 22,000 students now enrolled in Hartford's 40 public schools are minority. Achieving the goals depends on students crossing district lines in a region where students, over all, are about 45% minority. The tentative deal opens the possibility of resolving a case that has outlasted three governors but has yet to bring sweeping changes to the composition of Hartford's public schools. The case is known as Sheff v. O'Neill. The tentative settlement, much like the ones that have preceded it without permanent success, relies entirely on voluntary incentives.

Clips adds info on why the case is so significant. The second story of note is related, in a way, to the first. In Parent group argues Dillon's Rule bars Virginia school boards from considering socioeconomic diversity or instructional effectiveness in drawing attendance zones, Hutton points out the potential significance of "a lawsuit by some parents in Virginia’s Fairfax County over the school board’s redrawing of high school attendance zones." Hint: Think the Supreme Court's ruling in the Seattle and Louisville diversity cases. Follow the links for the full story.

Are YOU a Legal Clips subscriber? If not, click here to subscribe and see what all the buzz is about.

Posted at 3:58 PM | Link to this story | Comments (0)

March 11, 2008

This just in... critics are pointing the finger at our nation's law schools, where students learn how to think and speak law but not actually practice it. USA Today reports:

Medical students learn the ropes on real patients during hospital rounds. Student journalists practice by writing stories. But if learning-by-doing seems an obvious way to master a profession, one corner of higher education has largely avoided it: law schools.

Apparently employers are saying that law school graduates are lacking real job skills, and thus need on the job training. The response? Prominent law schools law Harvard and Stanford are trying to shake things up with new teaching methods. Moreover, a small Virginia school, Washington & Lee University, plans even more fundamental changes.

USA Today says this about their program:

The school is announcing plans to have students spend their final year — a time for breezy classes and little hard work at many schools — in "practicum" courses, where they will imitate real-world lawyering every step of the way.

It works like this: Typically, in a business law class, for example, students work through a hefty book where they study a range of cases. Students might follow the full range of legal problems that would typically come before a single company — antitrust, real estate, consumer protection and international law. The classes would still largely be taught on campus, perhaps by a professor along with a visiting practicing attorney.

BoardBuzz wonders how these changes will reflect the practice of law, not to mention employer hiring practices. It seems likely that students with real-world lawyering experience would have the advantage when it comes time to enter the workforce.

You may be wondering just what this all has to do with the K-12 community. Well, it turns out that public schools are collectively our nation's largest employer. What's more, the field of "School Law" is a new and exciting one. Our friends in the Council of School Attorneys have this to say:

Most public school districts are multi-million dollar entities. The school attorney (whether in private practice or as an employee of the district) acts as corporate counsel, and advises the school board and the school administration on contract and general business affairs, human resource and collective bargaining issues, state and federal constitutional provisions, state and federal statutory issues, and case law that may impose liability on the school district. School attorneys represent kindergarten through 12th grade elementary, middle, or secondary level public schools, but some also advise community colleges and universities.

On any given day, the school attorney might find himself/herself advising a public school board client about separation of church and state issues such as the constitutionality of teaching “intelligent design” and/or evolution; investigating an allegation of sexual harassment of a student by a school staff member; meeting with a committee of school personnel and parents about the educational programming of a student with a disability; arguing a case about student dress codes in federal court; or researching and drafting a school board policy on state open meetings laws. School attorneys have the opportunity to be involved in some of the most significant legal issues of our time. Brown v. Board of Education, anyone?

The Council of School Attorneys has even developed a brochure, Is a career in School Law right for you?, which discusses the facets of School Law, provides free resources for law students investigating careers in school law, and lists some of the many career opportunities available in the field. Be sure to check out their School Law Careers and School Law Jobs pages as well.

Posted at 11:49 AM | Link to this story | Comments (0)

February 20, 2008

It's a great day when you can get something for nothing, so that must make March 12 stand out! That's the day NSBA's National Affiliate Program will be offering the free (yes, you read that right) webinar "From Cyberbullying to Cell Phones: Navigating through the Legal Questions and Answers."

With the rapid growth of Web 2.0 technologies like social networking, a host of new legal issues have emerged. Cyberbullying raises questions about freedom of speech, and student cell phones have placed school leaders and parents at odds in some communities. You can join the discussion with NSBA Senior Staff Attorney Tom Hutton as he provides updates on the legal issues surrounding many of today's hot education technologies.

The webinar will be held March 12, from 7:30 p.m. to 8:30 p.m. EDT. Reserve now, because space is limited. And for more information about other and future webinars, click here.

Posted at 2:59 PM | Link to this story | Comments (0)

January 17, 2008

NSBA's Executive Director, Anne L. Bryant, has an interesting article in the latest issue of District Administration Magazine. The article, in Q&A format, is called Addressing Diversity's Gray Areas and examines some of the challenges facing school districts in light of the Supreme Court's recent decisions on student diversity.

Bryant offers some common sense answers to the tough questions that school districts are now facing.

How quickly does my school district need to act to ensure legal methods of student assignment are in place?
No timeline has been established for compliance. School districts will find it difficult to make changes in student assignments for the current school year. What school districts can do easily is consult with their school attorneys before making a decision on a hasty policy. A deliberate, methodical review of student assignment plans can help to minimize the racial aspects of the plan and ensure that long-term goals are in line with the Court's decision.

What are some other ways that school districts can ensure diverse classrooms without using race as a deciding factor?
The Court encourages school districts to use "serious, good faith considerations of workable race-neutral alternatives," but it offers no explanation for what those are. NSBA recommends that school districts consider a race-neutral plan, using commissioned studies and research to inform the process, and involve the community.

By tying diversity to educational goals, school districts ensure that the maximum educational benefit is achieved, rather than simply ensuring a demographic solution.

Two other resources that school districts might find useful are: An Educated Guess: Initial Guidance on Diversity in Public Schools After PICS v. Seattle School District and Not Black and White: Making Sense of the U.S. Supreme Court Decisions Regarding Race Conscious Student Assignment Plans, both available on NSBA's Web site.

Posted at 1:57 PM | Link to this story | Comments (0)

October 11, 2007

SpecialEdLaw Blog is all (dare we say?) abuzz about yesterday’s Supreme Court indecision, er, decision, in a special education case, and even more abuzz about our posting yesterday. SpecialEdLaw Blog (SELBlog) predicts BoardBuzz’s “already loud” “bellyaching” is sure to grow even louder. Hmmmm. We beg to differ. Maybe “buzzing” would be a better word.

SELBlog disputes BoardBuzz’s rationale, claiming our view of Congressional intent is not quite as clear as it should be because lower court judges (applying 2nd circuit precedent by the way; meaning: how else could they rule?) saw the law differently. Just because courts disagree doesn’t mean the law isn’t clear. That’s certainly the case in appellate courts and courts of limited jurisdiction like the Supreme Court. And, when it comes to doing the math, BoardBuzz thinks what really matters is how 5 of 9 vote instead of how many votes were had on the bus, in the hallway, on live dancing shows, or on the way to the courthouse steps in Washington.

And, while we’re talking about what really counts, it is this: the Individuals with Disabilities in Education Act is about collaboration NOT unilateralism. If that were the case, the Supremes would not have ruled repeatedly that Congress intended for parents to work with school districts to achieve appropriate educational results for students. SELBlog says that “most parents do not opt out and unilaterally place, until that they have first opted in.”

We agree. Most parents of students with special needs are happy with the services their public schools offer their children. But that’s not the point. Those parents who unilaterally choose private placement when they have never given the public school a chance to work with their kids were never interested in being part of public system to begin with (as Justice Scalia suggested). Well, except to collect public money for private schooling.

And, ahem, here’s a bit of math for ya: the average cost of a student in special education is $33,000 a year in New York City. So, yes, SELBlog, it’s not likely a big district like NYC will close its doors any time soon, but don’t forget there are many, many small and mid–sized school districts across the 2nd Circuit (many of them single-school districts) that could face serious budget challenges from even one unilateral placement ala Tom F.

So, it ain’t bellyaching. It’s truth. And, that means with the feds providing only 17 percent of the 40 percent of funding they promised for their share of special education, the burden falls to the local taxpayer.

This is not about the “weak party” nor about playing on “the school’s home turf” as SELBlog suggests. It’s about doing what’s right for students. All students. And, the sad reality is that placing greater financial demands on schools without commensurate federal funding hurts all students.

BoardBuzz knows parents like Tom F. may be well-intentioned. But, striking out on their own out of a misguided belief that private is better (especially without having given the public schools a chance) can have a serious impact on the ability of public schools to educate all children. So, to take a phrase for the horse’s, er, SELBlog’s mouth, “Let's keep this whole thing in some perspective.”

And, while we’re at it, SELBlog, our legal analysis is just fine, thank you. You may disagree with it. But, if disagreement were the standard for determining unprofessionalism, well, what would you be saying about the Supreme Court given its decisions in special education cases beginning with Rowley? So, make your point. And play nice. Or guess who’s the real bellyacher?

Posted at 2:00 PM | Link to this story | Comments (1)

October 10, 2007

Attention! We interrupt our previously scheduled hiatus to bring you breaking news.

The U.S. Supreme Court has just issued a 4-4 ruling in a special education case that has the potential for serious financial consequences on school board budgets.

Speaking of numbers, BoardBuzz has a math problem for its loyal readers: What is four minus four minus one? In math terms: (4- 4) -1 = X. BoardBuzz's quick readers have undoubtedly concluded X = -1. And, in the world of Supreme Court math, a -1 justice can have dire consequences.

In the case of NYC vs. Tom F., minus one justice (Anthony Kennedy recused himself) means the appellate court's decision stands to award the parent of a special education student tuition fees for placing his child in a private school. And, that kind of math will have a serious implications for school district budgets in the 2nd federal circuit, where parents now can avoid collaborating with their school districts as required by the Individual with Disabilities in Education Act (IDEA) AND still collect public dollars for private schooling.

Say what?

Yep, you heard it. The Supreme Court's ruling lets stand a decision by the 2nd Circuit Court of Appeals that found the NYC School Board had to reimburse a parent who placed his special education child in private schools without ever enrolling his child in public schools. When the public school district found that its schools could provide the free appropriate public education required by the IDEA, the parent challenged the school district in court because he wanted to retain his child in the private school. Of course, the private education comes with a hefty tag.

Hello? When Congress revamped the IDEA in 1997, they specifically said that before parents were entitled to reimbursement for placing their children in private schools, they needed to first enroll the children in public schools. In other words, because a private school education has the potential for breaking the proverbial school district bank, Congress felt the public schools should have first dibs at providing the free appropriate public education required by law. If the public school could not provide the appropriate educational services, or if it was proven the education was not appropriate after the district had tried, then and only then was the district responsible for paying for private tuition.

But, the Court apparently could not decide on what Congress meant when it gave school districts "first dibs." Were that BoardBuzz had a seat on the Court rather than in the gallery! After all, BoardBuzz was a baby bee blog once too, and understands the meaning of "first dibs" along with every other first grader.

Congress knew some parents would choose not to send their children to public school. And, that is just fine. But, Congress also knew that public schools should not be footing the bill for those parents that never intended to send their children to the public school, but wanted the taxpayers to pay for their choice of private schooling. So, that's why Congress, said that public schools should serve children first. Justice Scalia had it right when he commented at oral argument that public schools “should not have to pay the freight for people who would not be coming to public school anyway.”

Dedicated readers of BoardBuzz know we are not one to clamor for legislation. We think, afterall, that the law is clear. But, now that the Court (without Justice Kennedy) cannot tell us what Congress meant, maybe it's time for Congress to spell it out for the rest of us ... and for the Court.

Want more? Read NSBA's amicus brief. Check out what our legal beagle friends over at the SCOTUSblog are saying. And tune into NBC Nightly News tonight to see NSBA Executive Director Anne Bryant's take on the decision.

Posted at 4:43 PM | Link to this story | Comments (0)

September 27, 2007

NSBA and the College Board have released a report spotlighting the Court’s most recent decisions and what they mean to schools as they try to decipher how to forge ahead while maintaining high quality education for all students. This report, titled “Not Black and White: Making Sense of the United States Supreme Court Decisions Regarding Race-Conscious Student Assignment Plans,” will be showcased at NSBA's Council of Urban Boards of Education (CUBE) Annual Conference in Atlanta this weekend. The report explains the Court’s decision and its impact on race-conscious policies and practices districts may currently have in place. It also discusses how best to pursue diversity-related educational goals, as well as how to manage the associated legal risks in the future.

The Supreme Court rulings earlier this year are a topic of discussion as school systems across the country strive to answer the question, “What does this mean for us?” The topic is not new to BoardBuzz, we covered the issue here and here.

When the news hit back in June, media coverage on the Court’s decision was widespread and NSBA’s General Counsel, Francisco Negron told ABC News, "We have our work cut out for us, but I think it's a task that school boards all over the country are up to."

For more information on NSBA and the College Board’s latest publication view the press release and for answers to your FAQ, click here.

If you want to get NSBA’s legal news delivered to your e-mail inbox, subscribe to Legal Clips published by NSBA's Office of General Counsel and the NSBA Council of School Attorneys.

Posted at 2:36 PM | Link to this story | Comments (0)

September 14, 2007

Check out this fun item from yesterday's Legal Clips, NSBA's school law e-newsletter, on a topic BoardBuzz has addressed before:
State encroachments on local decisions about the school calendar. Interesting collection of links there.

Seems more state lawmakers are getting the school board itch on this one, often at the behest of their tourism industry, according to USA Today. For fun, we should all carefully note the name of every lawmaker who thinks he or she knows better than school boards what school schedules should be, and then check whether that same lawmaker is prone to sanctimony about school accountability, achievement gaps, competitiveness, etc. As Legal Clips highlights, there are lots of considerations that have to go into a calendar decision—academic, operational, financial, and practical. All the more reason this needs to be a local call, as Pennsylvania School Boards Association executive director Tom Gentzel tells USA Today. And if ever an issue highlighted why you want a body whose sole mission is education making calls like this, here's a perfect example.

Speaking of local calls, an eye-popping quote by presidential contender Fred Thompson caught BoardBuzz's attention. But first, some serious caveats: We will be giving attention to other candidates, we do happen to believe the federal government has important responsibilities to public education, we know nobody's about to turn back the clock on accountability, and NSBA is one of the groups occupying the middle ground in the No Child Left Behind debates (mend it, don't end it).

Even so, given how enthusiastic some folks are for ever more federal mandates, we can't help but take note of Thompson's answer to a question about his ideas for education:

"It's your responsibility. If you don't like what's going on, don't get in your car and drive by your school board and maybe drive by the capitol and get on an airplane and fly to Washington and say, 'I don't like the way the school down the street is being run."'

Posted at 4:01 PM | Link to this story | Comments (1)

September 10, 2007

There is an interesting legal case out of Washington that just reached an out-of-court settlement with three former editors of a high school student newspaper, days before the case was scheduled for trial in federal court. And, as sometimes is the case, both sides are claiming victory.

Here's the skinny from our legal beagles at NSBA's Legal Clips and the Seattle Times report:

Three former student editors of [Washington's] Everett High School newspaper conceded that school administrators have a right to review the school newspaper prior to publication, but they say the settlement ensures that the district can't censor articles unless they contain libel or otherwise violate district policy. The students originally had argued that the school principal could not review the newspaper because it was a public forum, which enjoys broad free-speech rights under the federal and state constitutions.

In July, a federal district court judge ruled against them, holding that the school district's policy that allows prior review is constitutional. But the judge said other issues, including whether the Everett High principal retaliated against the students for asserting their free-speech rights, would have to be settled at trial. The students say the settlement affirms that student editors, not administrators, control the content of the newspaper.

But the attorney for the Everett School District says the settlement agreement reaffirms the district policy over which the students brought suit. The lawsuit received national attention and prompted student editors at the district's other high schools to publish off-campus to avoid administrative review.

Our legal beagles also point out that Oregon has a new law that protects high school and college journalists from censorship by school administrations. They noted this report in USA Today: "Student journalists are now responsible for determining the content of school-sponsored media and gives them the right to sue schools if they feel free-press rights have been violated. It is the country’s first law in more than a decade to protect high school journalists, and the first ever to cover both high school and college journalists under one statute, says Warren Watson, director of J-Ideas, a First Amendment institute at Ball State University in Muncie, Ind." The state of Washington apparently considered and rejected similar legislation, a version that would have considerably more lawsuit-prone.

Want more legal news and insight? Subscribe to the free weekly e-newsletter Legal Clips, published by NSBA's Office of General Counsel and the NSBA Council of School Attorneys.

Posted at 4:38 PM | Link to this story | Comments (0)

July 24, 2007

In case you missed it, Education Week ran this chat Thursday, July 19, featuring NSBA's own Deputy General Counsel, Naomi Gittins, on the subject of the Supreme Court's impact on school policies. Gittins was joined by Mark Walsh of Education Week, and Paul Beard, a senior staff attorney for the Pacific Legal Foundation.

Questions focused heavily on the recent race-based cases decided by the court, as well as Bong Hits 4 Jesus case.

Here's a good question from Kirstin McCarthy, a program associate with the Business Higher Education Forum:

I'm interested to know if panelists could identify one or a few school district(s) that have successfully "limited their use of racial classifications when making school assignments"? I'm interested to understand what classifications, or combinations of classifications, have lead most successfully to diverse classrooms, and what benefits these school districts have gained from such school assignment classification systems.

Gittins replied: "Several districts that have received media attention in the wake of the decision are San Francisco, Wake County, N.C., Cambridge, Mass., La Crosse, Wis., and Brandywine, Del., as school districts that have moved away from assignment plans that take race into account to ones that are based on one or more factors including socioeconomic status, poverty, home language, educational attainment of parents, student test scores, etc. The jury is still out as to whether these plans successfully promote diverse classrooms. The U.S. Department of Education touts them as successes, and Richard Kahlenberg, a proponent of SES as a means of achieving diversity, asserts that such plans do work.

"Others are less optimistic in their assessment about whether these plans do result in racially diverse schools that help close the achievement gap between whites and some minority groups (see NAACP LDF website). What is important to remember is that these districts as well as many others are committed to bringing the benefits of diverse classrooms to all their students and avoiding the harms of racial isolation, both of which are well documented and they will continue to struggle to accomplish these goals within the parameters of the law."

Want more? Check out the complete transcript from this expert panel.

Postscript: Louisville's school board (Jefferson County) has ratified a plan for how the district will deal with the Supreme Court's ruling in the upcoming school year. The plan will be submitted to a federal judge. The district previously had announced that the decision would not change everything in the district overnight, leading the plaintiffs in the case to threaten more litigation. Stay tuned.

Posted at 4:06 PM | Link to this story | Comments (0)

July 11, 2007

So it seems that the State of Oregon has passed the “nation's first law to help protect… high school…journalists from censorship by school administrations”. USA Today reports the measure is to be signed Friday by Gov. Ted Kulongoski and gives students the right to sue schools for violating their “free-press rights.”

As a self-proclaimed member of the much-lauded Fourth Estate, BoardBuzz is all for responsible student journalism. Heck, BoardBuzz itself has been accused once or twice of engaging in responsible journalism! But, even so, we can’t wonder at the wisdom of a measure that would seem to encourage more litigation. If there’s one thing schools don’t need more of, it’s law suits. Interestingly, that very issue may be a matter of concern for other state legislatures. USA Today says a similar bill in the state of Washington “died in the state Senate in April.”

Fourth Estaters all over the place appear to be lauding the measure nonetheless. “Lauren Dillard, editor of Oregon State University's Daily Barometer, told lawmakers that students can't learn how to hold governments accountable if they can't question their own governing body. It's difficult to serve as that Fourth Estate if you don't have independence from your organization."

We doesn’t mean to be obtuse, but does this mean students can’t understand the concept of holding government accountable without having the ability to write whatever they want about their teachers and their schools? Once again, we're flummoxed. But, maybe that’s because we thought we learned all about challenging the government back when we read Thoreau on civil disobedience…

And, as the loyal opposition, the Oregon School Boards Association, rightly points out, isn’t it the job of editors to ultimately decide what gets in the papers? Why “even professional journalists are subject to the editorial control of publishers and owners” and no one gripes about that. In this case, the school is the publisher and just like the private media conglomerates, it provides the ink, and the paper, the distribution networks, and in this case even the instruction! In our rush to let truth ring from the mountaintops, we should not forget the raison d’etre of student journalism in the first place is teaching and learning, not unbridled expression.

Posted at 4:16 PM | Link to this story | Comments (0)

June 29, 2007

In case you missed the blanket of coverage on the diversity cases decided yesterday by the Supreme Court, check out the following links.

USA Today carried the story on the front page, "National School Boards Association executive director Anne Bryant said she hoped schools would continue with 'careful race-conscious policies,' including magnet programs."

ABC News with Charles Gibson featured the story, "We have our work cut out for us," said Francisco Negrón of the National School Boards Association. "But I think it's a task that school boards all over the country are up to."

Also in the ABC story, "Without using race as a factor, we have found that schools have become more and more racially isolated in San Francisco, or segregated -- which is not what we want," said San Francisco school board member [and NSBA CUBE Steering Committee Member] Jill Wynn.

Negrón was also quoted in the New York Times:

Deciding how school assignment plans will have to be changed to comply with the ruling will require school boards to show some creativity, said Francisco Negrón, general counsel for the National School Boards Association.

“The court doesn’t give guidelines, and it’s not going to be one size fits all,” Mr. Negrón said.

Posted at 5:35 PM | Link to this story | Comments (0)

June 28, 2007

BoardBuzz is still just as disappointed as we were this morning in the Supreme Court's 5-4 decision to strike down the voluntary integration plans of the Seattle and Louisville school districts, but we're encouraged by the fact that a majority of the court recognized the ability of school boards to continue to maintain racial diversity as a legitimate educational goal.

After reading the opinion, NSBA's General Counsel Francisco Negrón pointed out, "Despite the majority opinion, we are pleased with Justice Anthony M. Kennedy's separate concurrence that explicitly rejected the plurality's contention that racial diversity constituted racial balancing, which is constitutionally impermissible."

In addition, Anne Bryant, NSBA's executive director, noted that "School districts have a compelling reason to create a diverse learning environment because it helps improve student achievement and prepares students to live and work in an increasingly diverse society."

You can read NSBA's complete press release here and you can check out Negrón on ABC World News Tonight with Charles Gibson and on various local NBC affiliates throughout the nation. You can also listen to his interview on "All Things Considered" tonight on NPR, during Nina Totenburg's court report.

Tomorrow, look for newspaper coverage of NSBA's reaction to the decision in USA Today, the New York Times, and Associated Press stories. Several other papers also covered NSBA's reaction: the Orlando Sentinel, Cincinnati Inquirer, Baltimore Examiner, Washington Times, and the Times Picayune, as well as Education Week.

Legal junkies can get more information and opinions from the SCOTUS blog and the Supreme Court School Integration blog. And don't forget NSBA's great resource page here.

Posted at 5:16 PM | Link to this story | Comments (0)

This morning, the Supreme Court ruled 5-4 in the diversity cases, striking down voluntary integration plans in the public schools of Seattle and Louisville. Chief Justice John G. Roberts, Jr., wrote the majority opinion in the combined cases. The two school districts, Roberts wrote, have "failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts."

Justice Anthony M. Kennedy did not join all of the majority opinion, but joined in the result.

Contrary to popular belief, the cases do not involve affirmative action or "forced busing" programs. In a briefing paper on the cases, the NAACP Legal Defense Fund noted that, "In the vast majority of K-12 public schools, there is no competitive admissions process or attempt to evaluate students' 'merit' in determining student assignment. Every student will be assigned to a public school within the district; the only question is which children will be educated together. Or, put another way, the choice is whether to pursue integration in student assignment through voluntary transfers and other mechanisms, or whether to leave schools racially isolated."

BoardBuzz will have updates on this story later today. Click here to get more information and resources on these cases.

Posted at 11:28 AM | Link to this story | Comments (0)

June 26, 2007

USA Today opines in its editorial today that the yesterday's Supreme Court decision in Morse v. Frederick is “an invitation for school officials to ban or punish any student speech they can reasonably interpret as promoting illegal drug use or perhaps other activities.”

Is BoardBuzz missing something? Is USA Today saying that exposing students to messages promoting illegal drug use is appropriate in schools? Surely not. Is USA Today saying that messages of this sort when delivered by students have minimal impact and, therefore, do not merit regulation? It is true that BoardBuzz left the public school hive many years ago, but is young enough to remember that some things like peer pressure are part of most every youth's experience.

But USA Today appears to take issue with schools taking an active role in protecting students, objecting to what it sees as overreaching: “There's no obvious reason the court's rationale — drug use is extremely harmful to kids, and advocating it should be off limits — can't be extended to other behaviors, such as sex and underage drinking.”

BoardBuzz is aghast at USA Today’s narrow view of the mission of schools. Thankfully, school boards all over the country know the expectations parents rightfully have of them when they entrust their children to the public schools. And, they know that a safe learning environment is the best place for students to learn.

But, we do agree with USA Today on one count: No, educators “don't take constitutional lawyers with them to school.” They take their professionalism, their creativity, and their love for inspiring and educating their students. And, now they can continue to do so without worrying that their professional efforts will be undermined by needless and costly litigation.

Read more coverage in the Washington Post here and on MSNBC here. Both carry commentary by NSBA's General Counsel Francisco Negron.

Posted at 4:49 PM | Link to this story | Comments (2)

June 25, 2007

BoardBuzz is happy to report the Supreme Court handed down this morning its decision in the notorious Bong Hits 4 Jesus case, Morse v. Frederick. Ruling for the Juneau, Alaska School District and its Principal, Deborah Morse, the court found that Joseph Frederick’s free speech rights were not violated when Principal Morse took Frederick’s 14-foot banner emblazoned with the now-famous quote. The court’s decision had two primary holdings: First, that student freedom of speech is not co-extensive with the rights of adults, and second that schools are different and can regulate pro-drug messages. The Court expressly weighed the danger of drug use more highly than the student’s First Amendment claim, appearing to give increased consideration to the notion that schools have a role in maintaining student welfare. In fact, writing for the majority, Chief Justice Roberts brought a sobering realism to the court’s decision, rejecting theoretical arguments about free speech for the reality of the very real danger of the scourge of drug use, which he said was “serious and palpable.” Hear, hear.

The decision although boasting a strong majority in the judgment (6 justices in all), had 3 Justices dissenting in full and 1 dissenting in part. BoardBuzz is flummoxed. Is this 5-4? Or 6-3? And, it seems at least one justice, Justice Thomas is willing to do away with the Tinker standard altogether! What a day. Justice Alito, however, warns his vote is dependent on the limitation of the decision to regulating drug messages, and cautions the Court not to go to far down the path that would allow school districts unfettered discretion to regulate speech on the basis of the “educational mission.”

The decision also puts to rest the question of whether the Alaska public school principal was personally liable for damages for allegedly violating a students free speech rights when she disciplined a student for holding up a banner saying “Bong Hits 4 Jesus” at an off-campus, school-sanctioned, school-related event. Since it ruled for the school district and the principal, the Court did not reach question of qualified immunity. That means Principal Morse is not personally liable. BoardBuzz is happy to report the even the three-justice dissent would not find Principal Morse personally liable.

So, BoardBuzz celebrates today. Educators and administrators across the nation can sleep well tonight, comfortable in the conviction that they do not have to fear personal legal reprisals when they act in good faith to implement school board policies designed to protect students by prohibiting messages promoting drug use!

You can read previous BoardBuzz coverage of this here, here, here, and here. Check out NSBA's press release on the case here.

Posted at 4:35 PM | Link to this story | Comments (2)

June 18, 2007

Last week’s issue of NSBA’s free weekly Legal Clips e-mail service highlights a win and a loss for child advocates on the legal front. One was in court, one in the legislature.

First the good news.

Here it is. The Oklahoma supreme court just blocked a state petition to impose the so-called “65 Percent Solution” on Oklahoma schools, finding that the language describing what the proposal meant was misleading, so voters didn’t realize how it would shift control away from their own communities to the state. As longtime BoardBuzz readers know, the 65 Percent Solution is a campaign soundbite masquerading as education policy.

Leading the charge for kids in the court battle was the Oklahoma School Boards Association (OSSBA). OSSBA executive director Keith Ballard explained to the press that educators certainly agree that as much funding as possible needs to go directly into instruction, but, “In a state where there are limited resources, we can’t pick a magical number. It has to be a decision of a local school board.” Standard and Poor’s has concluded the “magical number” critique is dead on.

OSSBA, by the way, also was part of the coalition that earlier helped save Oklahomans from a so-called “Taxpayers Bill of Rights” (TABOR) proposal. In that one, the Oklahoma supreme court found evidence that the petition drive was tainted by substantial illegal out-of-state circulators. More on TABOR proposals in other states here. These attempts by incredibly well-heeled out-of-state fringe interests to push their 65 percent solution, TABOR, and voucher proposals while making them appear home-grown are common (and frequently pathetic). Luckily, Colorado’s bitter experience with TABOR has created legions of citizens who can testify personally to their friends in other states why this is such a lame idea.

Kudos to Oklahoma's gutsy school boards and others for their muscular legal advocacy.

Now for the bad news.

Here it is. Maine’s legislature has just approved a proposal by Governor John Baldacci to wipe out about half the state's school districts in a huge consolidation. Interesting side note for school boards: Some lawmakers are peeved at school advocates for fighting the measure, suggesting groups like the Maine School Management Association (which includes the Maine School Boards Association) were misleading people about its implications for small schools.

BoardBuzz thinks these politicians aren’t giving their constituents enough credit. As Legal Clips editor Tom Hutton points out in his note accompanying the story, the “We’re only talking school districts, not schools!” line has been heard before. Case in point, courtesy of the Rural School and Community Trust.

These small schools and districts often are the very souls of their communities. They also tend to stack up quite favorably on the academic side—as do states like Maine, we might add. But they depend for their survival and success on local self-determination and intense community engagement. As Arkansas discovered, when small communities lose their school boards, their schools may be next. As for the school closings, West Virginia’s self-inflicted venture down that “reform” path offers plenty of painful lessons about long bus rides for little kids and failed promises, fiscal as well as educational. Everyone knows there sometimes are unavoidable realities about declining enrollment. But too often the hard questions are ignored, notably this one: What would be best for the children?

Maine’s experience may prove different from that of Arkansas. We hope so. But let’s all watch closely. And let’s take careful note of who's been reassuring small communities and dismissing the education community.

Posted at 4:28 PM | Link to this story | Comments (0)

May 23, 2007

BoardBuzz was intrigued by this story out of Seattle which adds fuel to the ongoing debate over student speech versus classroom disruption. We've covered the story here, before.

This particular case involves another teacher captured through video magic and posted on MySpace.

It was a sophomoric online video criticizing the hygiene of a teacher that was at issue in U.S. District Court on Monday, when Gregory Requa, a senior at Kentridge High School, asked a judge to order the lifting of his 40-day school suspension for his supposed involvement in producing and posting the video.

Requa's lawyer, Jeannette Cohen, said the teen didn't produce the video -- taken in an English classroom at Kentridge. But even if he did, his suspension is a violation of the U.S. Constitution's First Amendment guarantee of freedom of speech, she argued in court.

BoardBuzz begs to differ. The issue here is not about free speech, it’s about disruption ... hello? What were the students supposed to be doing in class that day? Presumably not videotaping their teacher and speculating about her hygiene habits. One wonders whether the students are at all concerned about the possibility that they may have defamed the teacher.

BoardBuzz would bristle at untrue allegations about our virtual hygiene. All this talk of allegations and lawsuits reminds us of the legal definition of slander: the malicious publication of an untruth. Wethinks this exists here.

Posted at 5:11 PM | Link to this story | Comments (2)

May 22, 2007

BoardBuzz told you yesterday about the Supreme Court ruling in Winkelman v. Parma City School District that says parents do not need lawyers to represent their children in special education cases in federal court.

Understandably, the story got a lot of coverage yesterday. Click here to read and listen to National Public Radio's story, which features NSBA General Counsel Francisco Negrón's take on the decision. Negrón noted that school boards are concerned that "parents will see this an open gate to litigate rather than collaborate. That would be a shame because IDEA has always been about collaboration." Read more from the Associated Press here.

Posted at 12:29 PM | Link to this story | Comments (0)

May 21, 2007

The Supreme Court ruled today in the case Winkelman v. Parma City School District that parents do not need lawyers to represent their children in special education cases in federal court. See story in the Washington Post.

NSBA along with the Ohio School Boards Association and several administrator organizations, including the American Association of School Administrators, filed a friend-of-the-court brief this spring urging the Court to rule that non-lawyer parents should not be able to proceed in federal court pro se (meaning parents should not represent their child in federal court). In a 7-2 ruling, the court found the IDEA extended substantive rights to parents, which permitted them to bring their own suits in federal court. But, the decision left unanswered many questions, which are sure to befuddle many in the public school community.

BoardBuzz understands the high court was concerned about shutting parents out of their proverbial day in court, but we also wonder whether the interests of justice, let alone students, will truly be served by permitting non-lawyers to litigate complex federal cases with nary a law license in sight. Since special education cases often amount to a battle of the experts, will parents not versed in the nuances of examining witness be able to elicit the kind of information that a court needs to decide what's in the best interest of a special needs child? And, what about those parents with limited education? Are they at a disadvantage? How far will federal courts go in making sure a non-lawyer parent represents his/her child adequately?

BoardBuzz is not insensitive to the need for parents to advocate zealously for their children. But, while it may seem fair to allow parents his or her day in court, the more important question is, is it fair to the child? We can only hope this does not mean increased demands on our already burdened court system and greater costs to the ever-shrinking school district purse.

Posted at 4:07 PM | Link to this story | Comments (1)

March 28, 2007

More and more schools moving towards random drug tests (see previous BoardBuzz coverage here, here, and here) creates an interesting dilemma for school districts. The latest story, out of New Jersey, examines steroid testing. And one district has started using a test that can detect alcohol use up to three days prior (see story here).

For those wondering how to muddle through the quagmire and keep students safe, while still protecting their privacy, you can tune in to NSBA's online discussion on the legal implications of student drug testing. The discussion will take place during NSBA's Annual Conference, Sunday April 15, at 3:00 PT. NSBA Staff Attorney Lisa Soronen will provide expert information and answer questions. Stay tuned for more information about how you can sumbit a question for the discussion.

Posted at 5:14 PM | Link to this story | Comments (1)

March 22, 2007

As we promised (well, OK, a day late), here are some more impressions from the Supreme Court arguments in the Morse v. Frederick case heard Monday. You’ve probably read or heard some news accounts, as well as some of the editorials, but you can count on BoardBuzz to give you the rest of the story.

Look a little closer: hard facts
First, the facts of the case are messier than most press accounts acknowledge. For one thing, many of the justices were clearly skeptical of the notion that the Olympic torch relay where the incident happened was not a school event, a question we raised here. Justice Kenendy asked whether if students at the event had started throwing bottles, the teachers and administrators should have thrown up their hands and said, “Oh well, not our responsibility.” For our part, BoardBuzz is sure if a kid had been injured, it never would have occurred to anyone to criticize school officials for poor supervision, right?

In addition, principal Deborah Morse has been subjected to characterizations and aspersions unworthy of some of the reporters and commentators who have been repeating them. In questioning the student’s lawyer, Justice Kennedy was downright angry about what she’s been through. BoardBuzz notes, for one thing, that it is disputed whether she ever “ripped down” the Bong Hits 4 Jesus banner as many recount. And Justice Breyer zeroed in on the fact that the superintendent had made clear in upholding the student’s suspension that even if the banner was protected speech, the suspension was warranted and had more to do with the kid’s lippy attitude—the “I was further victimized for solemnly invoking Thomas Jefferson” version of events, by the way, is disputed as well, but it’s understandably irresistible to reporters.

Look a little closer: hard law
Second, anyone who actually heard the justices’ questions would come away realizing the law, too, makes this case a much harder call than you’d ever guess from media debates. Justice Breyer summed up the dilemma best when he essentially said he was worried that a win by the student might open Pandora’s box to all kinds of limit-testing and lawsuits, but a school board victory might result in suppression of lots of student speech.

It’s true some justices are troubled by the idea of giving school officials a “blank check” to define any speech they dislike as contrary to the school’s educational mission. Justices Souter and Alito worried about this, and Chief Justice Roberts expressed concern about school boards tending to define their mission more and more broadly. BoardBuzz can only wonder whether any of the countless advocacy groups, politicians, and lawyers constantly dreaming up more good ways for schools to assume responsibility for solving society’s problems on the cheap will take a moment to look in the mirror before pointing accusatory fingers at school boards.

More importantly, as NSBA’s brief to the Court pointed out, this argument about giving school districts a blank check is nothing new. In the last two big Supreme Court cases on student speech, that same sky-is-falling hue and cry was raised. The Court didn’t buy it. But neither, we should note, did the Court give school officials the much-dreaded blank check. In Hazelwood v. Kuhlmeier, a 1988 decision on student journalism that is loathed by reporters, the Court didn’t abdicate its responsibility for the Bill of Rights and give principals free rein. Instead, it examined each and every disputed decision by the school officials in the case and decided each was reasonable under the circumstances. Free speech in the nation’s schools is alive and well, thank you very much.

Look a little closer: hopeful signs
BoardBuzz hopes readers and the Court alike will reject the false choice. We take consolation from the fact that the justices, if anything, appeared even more doubtful about the argument that unless there’s some kind of major disruption, school officials have nothing to say about any student expression. To be sure, there are some examples of school officials who simply react a little too hastily to anything insulting or controversial. But generally when you look a little closer into these cases you find there’s more to them. Surely we can protect student speech without further hyper-legalizing all things educational and making a constitutional crisis out of every silly thing kids do.

One positive note: The justices were decidedly hostile to the notion that Ms. Morse should be subject to personal liability for her judgment call, however the case turns out. BoardBuzz readers will recall that this issue was the thing we found most astonishing about the Ninth Circuit’s ruling in the case. Justice Souter said it best when he pointed out, after the Court and attorneys had spent 50 minutes exploring the finer points of all this case law and wrestling with hypothetical fact variations, that perhaps the law might not be quite so clear cut for a school principal, either.

The news media and commentariat might do with a dose of such humility and nuance. Hats off to Ed Week's Andrew Trotter, whose account is here.

The Bottom Line
This case is yet another example where the more comfortably removed one is from day-to-day responsibility for large numbers of children, the simpler the issues appear. Freedom-of-expression and liberty vs. authoritarianism and censorship, right? That easy view, of course, resonates instinctively with Americans—especially journalists. In the current political climate, BoardBuzz also suspects there’s more than a little guilt-by-association at play in the fact that the Bush administration and Ken Starr have sided with the principal.

Perhaps the most delicious aspect of this whole debate is this irony: So many people who are buying into the conventional wisdom about this case are doing so with such sanctimony about critical thinking and questioning authority.

Posted at 9:35 PM | Link to this story | Comments (2)

March 20, 2007

Lots of press coverage of yesterday's oral arguments at the Supreme Court in the "Bong Hits 4 Jesus" case. If you're living under a rock and haven't heard of this one, BoardBuzz wrote about it here and here. Here's a summary of more recent coverage, with links back to links back to links of background info.

Amazingly, the crowds at the Court were bigger for this case than they were for the diversity cases in December. Even more remarkably, your NSBA legal team reports no sightings of this stuff outside the Court. DC's street vendors may have missed some sales opportunities.

USA TODAY's Joan Biskupic reports on the arguments here. A humorous account is provided by the Washington Post’s Dana Milbank, here. For Linda Greenhouse of the New York Times and others, the interesting angle is that some groups on the religious right have sided with the student when the Bush administration is backing the school board (which is represented pro bono by Ken Starr).

BoardBuzz will have more on the case tomorrow, but for now, here is NSBA’s press statement and, once again, its amicus brief to the Supreme Court. And listen to this interesting discussion from NPR's Day to Day, which features Dahlia Lathwick of Slate, Principal Robert Littlefield of Portsmouth High School in Rhode Island, and past student plaintiffs in some of the landmark free speech cases. Littlefield has some thought-provoking observations about where schools are coming from nowadays. The past plaintiffs include Matt Fraser, who, lo and behold, today is "a high school teacher who is sympathetic to the administrators' need to maintain order" but who recommends using persuasion with students in situations like these.

Posted at 3:46 PM | Link to this story | Comments (0)

March 2, 2007

BoardBuzz is flummoxed. Wasn’t the biblical story about Jesus and wine jars? Well, it seems some notorious high school teens heard it another way. At least that’s the best we can figure out when during a school event in which the Olympic torch passed by their high school students unfurled a 20-foot banner emblazoned with the phrase, "Bong Hits 4 Jesus."

Bong hits for who? What? BoardBuzz’s reaction was just like yours. And, that’s not odd. Because even the slogan’s author, Joseph Frederick, admits in USA Today it was a nonsensical message. Really? And, get this, he also admits it was an attempt to get attention. Say it isn’t so.

So, why is this now a federal case before the highest court in the land? Simply put, because Frederick didn’t like the fact that his principal “tore down the banner and suspended [him] for 10 days.” The principal said “ because 'bong' was a reference to marijuana, the sign violated the school's anti-drug policy.” And, the student sued. Now the case is not only a test of student speech rights, but also about the ability of teachers to maintain the good order of schools. But, beyond these two legal issues, the case is also about whether or not a principal should be personally liable for violating a student’s free speech rights. That means the principal, not the school district, would have to pay damages from his or her pocket for the alleged violation. It boggles the mind that a court could so severely punish a principal simply to preserve a student’s ill gotten 15 minutes of fame for uttering drivel.

But, the surprises don’t stop there. Significant, too, is whether this event was even a school activity at all. See, the court thought it mattered that the parade actually happened “across the street from Juneau-Douglas High School (Alaska), rather than on its grounds.” Forget that the parade itself was co-sponsored by the school, and “that the school's pep band played as the torch passed, [and] its cheerleaders were in uniform to cheer the parade, and teachers supervised the event,” and… well, is another and really necessary? Point is, this was a school activity. Period. Now, BoardBuzz knows a thing or two about school law. And, we understand the constitutional principal that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." But, in an information age of virtual schoolhouses and gates, when classrooms are electronic and learning un-restricted by location, what sense does it make to limit our schools in this manner?

For his part, Frederick, all grown up now at 23, reportedly believes that "schools use 'zero tolerance' policies to cloak their abuse of authority and disregard for student rights." Really? It may not be as catchy as “Bong Hits 4 Jesus,” but to BoardBuzz, his statements still make no sense.

To learn more, be sure to check out NSBA's two Amicus Briefs that were filed in the case, here and here.

Posted at 4:32 PM | Link to this story | Comments (1)

February 5, 2007

The next NSBA Council of School Attorneys audio conference is quickly approaching on Wednesday, Feb. 7, at 12 noon ET. This discussion will be exploring the often difficult role of the school board attorney as the counselor-at-law. Participants will cover superintendent/board relations, client role confusion, "rogue" board members, board privileges and executive sessions, and board and attorney ethics. Hosted by Council chair Deryl Wynn, the audio conference will feature NSBA General Counsel Francisco Negrón, New York State School Boards Association General Counsel Jay Worona, North Carolina School Boards Association Legal Counsel and Director of Policy Allison Schafer, and Connecticut Association of Boards of Education Deputy Director and General Counsel Patrice McCarthy. For details click here.

Posted at 3:49 PM | Link to this story | Comments (0)

January 12, 2007

NSBA's Council of School Attorneys will be exploring the often difficult role of the school board attorney as the counselor-at-law in an audio conference on Wednesday, February 7, at 12 noon EST. The discussion, "Navigating School Board Politics: The School Board Attorney as Counselor-at-law," will cover superintendent/board relations, client role confusion, "rogue" board members, board privileges and executive sessions, and board and attorney ethics. Hosted by COSA chair Deryl Wynn, the audio conference will feature NSBA General Counsel Francisco Negrón, New York State School Board Association General Counsel Jay Worona, North Carolina School Board Association Legal Counsel and Director of Policy Allison Schafer, and Connecticut Association of Boards of Education Deputy Director and General Counsel Patrice McCarthy. For details click here.

Posted at 4:46 PM | Link to this story | Comments (0)

December 5, 2006

As promised, some more reflections today on yesterday's oral arguments in the Seattle and Louisville diversity cases.

Coverage
NPR's Nina Totenberg has an excellent story about the cases on this page, including the perspective of Jefferson County school board member Carole Haddad. Haddad originally ran for the board in opposition to integration efforts but, like Louisville itself, has come full circle. From that same page you also can listen to yesterday's Talk of the Nation broadcast featuring Michael Small of Akin Gump, one of the lead authors on the brief NSBA and other K-12 groups submitted to the Court.

Diehards also can listen to the recordings of the arguments themselves from C-SPAN, here. Good editorials supporting the school boards include this one in USA Today and this one in the Washington Post.

Highlights
Ironically, both sides lay claim to the legacy of Brown v. Board of Education. A skeptical Justice Ruth Bader Ginsburg observed that saying a school board's striving to achieve diverse schools for local children "is the same as segregation, it seems to me is pretty far from the kind of headlines that attended the Brown decision." That's putting it mildly. NAACP Legal Defense Fund Ted Shaw calls it "hijacking" the language of Brown to argue the opposite. But school boards know this kind of chutzpah is nothing new in education policy debates. Just look at how the prophets of privatization like to dress up their arguments nowadays.

In Court as out, the non-educators denouncing the school board policies were at their weakest when they blithely argued that the boards could get the job done if they would just try some race-neutral alternatives—magnet schools, perhaps, or incentive pay, or, hey, maybe lower class sizes or... something. Justice Stephen Breyer wasn't buying:

[Y]ou have little doubt. Are you an educational expert? I mean... it seems to me from what I read, that there is a terrible problem in the country. The problem is that there are lots and lots of school districts that are becoming more and more segregated in fact, and that school boards all over are struggling with this problem. And if they knew an easy way, they'd do it.

So I don't know whether this is exactly the only way to do it or not. I do know courts are not very good at figuring that out. And I guess that's why the Court previously has said it is primarily up to the school district.

Breyer's father was a school board attorney for San Francisco, by the way.

This point about alternatives is key. The school boards argue they've considered lots of approaches and have carefully crafted sophisticated public school choice policies, policies that they continue to fine-tune to fit changing local circumstances. Jefferson County's attorney Francis Mellen Jr., who stood out among the advocates as the one who really knows schools, explained to the Court how his client carefully considered alternatives, including by consulting with other school boards that use strictly race-neutral approaches. He noted that the resulting policies are narrowly tailored, successful, broadly supported, and, in effect, reconsidered every time his community holds its school board election.

These points also have been made eloquently by Jefferson County's student assignment director Pat Todd, quoted here in Time magazine. BoardBuzz thinks Todd embodies the currently unfashionable reality that K-12 policy debates are better informed when they include voices from local school districts.

Outlook
On this point about alternatives, Justice Anthony Kennedy voiced the view that the Court has made clear that race can be considered only as a "last resort." Kennedy is seen as the swing vote in the cases, so everyone was hanging on his questions, and the other justices eagerly picked up on his lines of inquiry. Like many observers, Linda Greenhouse of the New York Times doubts Kennedy will rule for the school boards. In this recounting of the arguments, Lyle Denniston of SCOTUSblog agrees.

NSBA attorney Tom Hutton tells the Seattle Times, here, that the very fact that the Court decided to hear the cases in the first place probably portends some dose of bad news for local school board discretion. The question is how much. Kennedy had some hard questions for both sides, as the Washington Post reports here, and it's possible he was probing with an eye toward a possible line-redrawing, as opposed to a wholesale ban.

If so, the question will be: Will whatever is left have any real chance of working?

Posted at 5:28 PM | Link to this story | Comments (0)

December 4, 2006

BoardBuzz kept close tabs on the oral arguments in two Supreme Court cases argued today, some of the highest profile cases this term. They're the ones we discussed here. NSBA and a host of other public education advocates submitted an amicus brief urging the U.S. Supreme Court to allow school boards to consider racial diversity as one factor in assigning students to elementary and secondary schools.

We'll have more to say on this, but for now, here is NSBA's press release on the cases, and links to C-SPAN coverage of statements made to the press on the steps of the Court after the arguments are here for Seattle and here for Jefferson County (Louisville). The Seattle one includes remarks by NSBA General Counsel Francisco Negron.

Posted at 4:30 PM | Link to this story | Comments (0)

November 13, 2006

This seems to be the hot topic in school circles lately, but here's another great chance for some helpful information about schools and social networking. First, we had this online chat with NSBA Council of School Attorneys (COSA) member Kimberly Jessie of Bracewell & Giuliani. Then we had this news about NSBA's third annual technology survey. Since good things come in threes, there's still time to join tomorrow's COSA audio conference on "The Long Arm of the School District: How Far Can It Reach?" Details here.

Pennsylvania has been the epicenter of legal conflicts over where to draw the line between a school's desire to try to do something about online activity like cyberbullying and free speech guarantees about off-campus expression. One presenter tomorrow will be the Pennsylvania School Boards Association's Deputy Chief Counsel Emily Leader. The other presenter is a big part of the reason Pennsylvania is such a hot spot: Vic Walczak, legal director of the ACLU of Pennsylvania, who has litigated many of the cases so far in this emerging area, like this one and this one and this one. You might also recognize his name from this little-noted case.

The ACLU is on the prowl for other potential suits, so here's your chance to find out what your district might be doing that could attract their unwelcome interest. One low, flat fee per phone line (hint: think speaker phone), and CLE for the lawyers in many states. Join us tomorrow at 1 p.m. EDT.

Posted at 3:13 PM | Link to this story | Comments (0)