Education Law Consortium

March 13, 2013

Posted for the American University Washington College of Law Women and the Law Program:

Join us for the Launch of the Student Debt and Education Justice Project! March 19th, 2013 1pm-4pm

Borrowers owe over $1 trillion in students loans.  Default rates top 15% for loans taken to attend for-profit colleges, many of which provide poor educational programs.  Students who default on loans—regardless of whether their job prospects improved after enrolling in the course—experience a host of negative consequences, including destroyed credit scores, wage and Social Security garnishments, lost security clearances and a debt burden that cannot be discharged, even in bankruptcy.  Defaulting students lose the very economic mobility they sought through post-secondary education.  The debt burden cripples low-income communities, undermines access to education, and poses a danger to the larger economy.

The Women and the Law Program’s new Student Debt and Education Justice Project will address the causes and consequences of student debt, particularly for low-income students. Join us for an inaugural panel as we explore how legal regulation and public policy governing higher education and student debt might be reformed or improved so that low-income borrowers are more likely to benefit from, rather than be harmed by, enrolling in institutions of higher education.

http://www.wcl.american.edu/gender/wlp/auwcl_student_debt_and_education_justice_project.cfm

ELC Call for Papers for the new Education Law & Policy Review

September 20, 2012

The Education Law Consortium is proud to announce the launching of the new Education Law & Policu Review.

The Education Law & Policy Review is a peer-reviewed law and policy journal providing scholarly reviews and commentary on national and international issues in education law and policy in K-12 and Higher Education.

The Education Law & Policy Review publishes leading law and policy research and analysis for use by scholars, policymakers, judges, lawyers, and educators.  This is an open access journal published in both electronic and printed formats to serve the broadest audience of readers.

Please see the call for papers in the ELC Publications section for further details.

When the Test Cheaters are the Administrators and Teachers: Georgia on My Mind

 July 14, 2011

If you want to make someone crazy, put them in a situation where the consequences are severe but their control is minimal.  That is exactly what the high-stakes testing regime of the NCLB does to educators, and especially those educators working with the most challenged schools and students.  That does not, however, justify cheating.  Children, educators who played by the rules, and every citizen in Georgia was harmed by this self-serving cheating.  The cheating scandal in Georgia evidences a shocking breakdown of leadership, professional ethics, and respect for the rule of law, and calls for proper remedies, including appropriate consequences for cheaters, and adequate training in professional ethics and law for all educators.

Evidence suggests that this cheating became institutionalized, extending back nearly a decade in some cases, and resulting in a culture in which cheaters were rewarded and those who followed the law and tried to report breaches of professional ethics were punished.  That simply cannot happen in a culture in which educators have received adequate training in professional ethics and the law.  Cheating would be quickly exposed and punished if there was a strong culture of respect for the rule of law, unethical and unlawful conduct was not tolerated, and everyone knew how to lawfully respond to threats from cheaters and bullies, even when they were the school’s administrators and supervisors.

It is certain that Georgia is not the only state where this type of cheating is occurring.  But it is also certain that the cheating in Georgia would have gone undisclosed and unpunished if Georgia’s Governor was not absolutely determined to get to the truth.  Initial internal investigations by school officials proved to be shams.  There is a strong incentive for federal, state, and local officials to obtain testing evidence that proves progress under the NCLB, making it very easy to look the other way on cheating as long as the testing results (and the news headlines) are good.  Because of the Governor’s determination, however, the State of Georgia got to the truth.  But in how many other states is wide-spread cheating the unwelcomed and yet undisclosed truth?

Georgia also has a strong system of laws already in place for dealing with unethical and unlawful conduct by public educators.  Georgia Code § 45-10-1 established a Code of Ethics for Government Service which requires in relevant part that:

 Any person in government service should:

 I. Put loyalty to the highest moral principles and to country above loyalty to persons, party, or government department.

 II. Uphold the Constitution, laws, and legal regulations of the United States and the State of Georgia and of all governments therein and never be a party to their evasion . . .

 IX. Expose corruption wherever discovered.

 X. Uphold these principles, ever conscious that public office is a public trust. 

Further, the professional certificates and continued employment of all public educators in Georgia remains contingent on their fidelity to Georgia Administrative Code § 505-6-.01 “The Code of Ethics for Educators” as enforced by the Georgia Professional Standards Commission.  Test cheating violates several sections of that ethical code, including Standard 11 which states: “An educator shall administer state-mandated assessments fairly and ethically.  Unethical conduct includes but is not limited to: 1) Committing any act that breaches Test Security; and 2) Compromising the integrity of the assessment.”  Further, the Code mandates:

 Educators are required to report a breach of one or more of the Standards in the Code of Ethics for Educators as soon as possible but no later than ninety (90) days from the date the educator became aware of an alleged breach unless the law or local procedures require reporting sooner.  Educators should be aware of legal requirements and local policies and procedures for reporting unethical conduct.

And finally, any lying to Georgia Bureau of Investigation officials, obstruction of justice, or destruction or falsification of public records constitutes a felony level crime under Georgia law.

There were more than adequate sanctions and remedies available under Georgia law.  What was lacking was a culture in which all educators were properly prepared in law and professional ethics to establish a strong culture of professional conduct under the rule of law.  All Georgia educators must be properly prepared to know and respect the law and established standards of professional ethics: 1) To prevent the culture of lawlessness and unethical conduct that allowed this cheating scandal; and 2) To assure that if cheating occurs again in the future, ignorance of the law and professional ethics will truly be no excuse for anyone. 

Cyber-bulllying: Old Problem in a New Forum

November 16, 2010

In the wake of far too many tragic events, bullying and cyber-bullying are capturing media headlines.  In response to these shocking events and growing public concerns, states are increasingly enacting statutes addressing bullying and cyber-bullying.  State laws generally direct local school systems to develop and implement policies designed to prevent these behaviors and promote conflict resolution.  These policies often include measures such as increasing awareness, defining the prohibited bullying behaviors, adopting reporting procedures, and specifying sanctions for bullying.

All types of bullying and harassment share a real or perceived imbalance in power between the perpetrator and the victim, the intent by the perpetrator to dominate or inflict suffering on the victim, and persistent attacks from the perpetrator.  Cyber-bullying has been defined as technology related bullying, including the use of the Internet and cell phones to harass and humiliate victims.  Technology-enabled bullying provides a means of extending bullying of students beyond school grounds.  For this reason, cyber-bullying can be especially damaging to its victims because the victims no longer have even the sanctuary of their own homes as an escape from the ever-present torment of the cyber-bully, sometimes resulting in serious emotional, psychological, and physical harm to the victim, and in extreme cases even suicide or acts of violence against others.

Cyber-bullying appears to be increasing as the use of electronic communications technologies increases.  A 2008 study by the U.S. Centers for Disease Control (CDC) titled Electronic Media and Youth Violence found that up to 35% of young people reported they had been a victim of electronic aggression, or cyber-bullying, and the problem seems to be dramatically expanding.  The most frequently reported forms of cyber-bullying included rude or nasty comments, rumor spreading, and threatening or aggressive comments.  Research in this field is relatively new and findings are still preliminary and unsettled, but some studies have found that girls were more likely to engage in cyber-bullying, and that cyber-bullying may peak in middle school and early high school years. 

Cyber-bullying may occur through e-mail, chat rooms, websites, and text messages, and instant messaging has become a common form of cyber-bullying.  Bullying instant messages are most likely to come from persons the victim knows from in-person situations.  Cyber-bullying is becoming more common, but face-to-face bullying remains the most common form of bullying.  For perpetrators seeking to inflict suffering on their victims, cyber-bullying is often a means of extending bullying beyond school grounds, to maximize control, intimidation, and harm to the victim.

School officials may appropriately punish children for misconduct occurring in school, including bullying and harassment, and generally have a legal responsibility to do so.  But when cyber-bullying among students occurs off-campus it may sometimes be unclear whether the conduct falls within the lawful scope of school discipline, is instead off-campus free speech beyond the legitimate authority of school officials, or is misconduct more appropriately within the realm of parental discipline or police action. 

Courts have long recognized that punishments for off-campus misconduct were appropriate when the off-campus misconduct involved harassment of students or faculty that reasonably threatened safety or a substantial disruption to the educational process.  In Donavan v. Ritchie, 68 F.3d 14 (1^st Cir. 1995), the First Circuit Court of Appeals upheld the punishment of a student involved in the off-campus production of a document titled “The Shit List” which included the names of 140 students and crude comments about their appearances, social skills, and sexuality.  However, in Layshock v. Hermitage School District, 496 F. Supp.2d. 587 (W.D. Pa. 2007), when school officials punished a student for creating an offensive “MySpace” parody of his principal on his grandmother’s home computer, with comedic alcohol, drug, and sexual promiscuity related responses presented as the principal’s answers to standard user profile questions, a federal district court overturned the punishment imposed on the student finding that the school failed to establish a sufficient nexus between the student’s off-campus speech and any substantial disruption of the school.  The court noted that the “mere fact that the internet may be accessed at school does not authorize school officials to become censors of the world-wide web.  Public schools are vital institutions, but their reach is not unlimited.”

In prior litigation, courts have seemed reluctant to impose liability on school officials for relatively minor acts of misconduct by students, especially when these acts are unknown to school officials despite reasonable efforts to establish protections for students against bullying and harassment.  In more extreme, persistent, and harmful cases of bullying and harassment, however, courts have recognized a duty for school officials to take reasonable actions to protect the safety of children in their care and custody.  Further, as states increasingly enact laws prohibiting cyber-bullying, and requiring school officials to act to protect children, it will become increasingly difficult for school officials to not take action, and far easier for courts to hold them accountable if they do not.

Playground Safety: Serious Concern and Potential Tort Law Landmine

August 12, 2010

Nothing is more important than the health and safety of our children.  We want our children to have fun and exercise, but we also want them to be safe.  Millions of children are injured every year on school playgrounds.  Some injuries are serious and even fatal.  Many of these injuries could have been easily prevented with common sense precautions.  And failing to take these precautions makes it more likely that your school could be on the losing end of a tort suit.  To help protect our children, check the safety of your play areas against the criteria in the documents provided in the links below, and do a general on-site inspection of your play areas for child safety.  It may be helpful to inspect your play areas not only from the mind-set and height of an adult, but also to view the area from the perspective and height of a child at play to identify otherwise hidden dangers or behavior triggers that could contribute to injuries.  Be sure that, for example:

1) Surfaces around playground equipment have adequate depths of wood chips, mulch, sand, or pea gravel, or adequate mats made of safety-tested materials.

2) Protective surfacing extends at least 6 feet in all directions from play equipment.  For swings, be sure surfacing extends, in back and front, twice the height of the suspending bar.  Swings should not be made of hard materials that could cause a striking injury. 

3) Make sure play structures more than 30 inches high are spaced at least 9 feet apart, and that no ropes or other strangling hazards are ever attached to high equipment.

4) Check for dangerous hardware including any protruding bolts, open “S” hooks, chains that could pinch, or any hardware that could catch children’s clothing or skin.

5) Check for spaces that could trap children, such as openings in guardrails or between ladder rungs that measure less than 3.5 inches or more than 9 inches.

6) Check for sharp points or edges on all equipment.

7) Look for tripping hazards in the area, including heaved sidewalks, broken concrete, exposed concrete footings, tree stumps, roots, rocks, drain pipes, etc.

8) Make sure all elevated surfaces such as platforms and ramps have adequate guardrails to prevent falls.

9) Check play area regularly to see that no dangerous objects such as broken glass, nails, etc., are present, and that equipment and surfacing are maintained in good condition.

10) Be certain that school planning and policies provide for adequate supervision of children on playgrounds, to make sure they're safe from any foreseeable dangers from equipment, animals (including dogs, bees, fire ants, spiders, snakes, etc.), outside persons, or other students in any secluded areas.

You can find helpful information on playground safety here http://kaboom.org/ and a public playground safety handbook here http://www.cpsc.gov/cpscpub/pubs/325.pdf

School Funding Wars and the Financial Crisis

July 29, 2010

Money matters, especially when there isn’t enough.  Public education is generally the largest item in state budgets, so large that even modest proportional increases are measured in many millions, and billions of dollars of additional expenditures over time.   Although adequate funding for education is essential, reform driven by school funding litigation has required a massive and protracted financial commitment by many states.   In sharp contrast to the federal government, however, most states must balance their budgets annually, and cannot spend money they do not have.   So what happens when state fiscal resources are insufficient and states have massive budget shortfalls, making it extremely difficult or impossible to provide plaintiffs with funding remedies because they exceed available means?  We cover this issue in depth in our forthcoming article: Brother, Can You Spare a Dime?  Contemplating the Future of School Funding Litigation in Tough Economic Times (in press; Education Law Reporter).  In summary, however, our article concludes that there is a significant gap between the rhetoric of unconditional commitments to adequate funding for education and the realities that are emerging after the 2008 financial collapse.  States are cutting funding for education, and these cuts are impacting children’s educational opportunities.  If education funding is inadequate, a resulting cycle of poverty can make it even more difficult for the state to generate adequate resources for education in the future.  The paradox of cutting education to save money is that by viewing current educational expenditures only as a cost and not a necessary and valuable investment, short-term savings could cost the state its long-term economic future.  In the wake of the 2008 fiscal collapse, schools are going to have to find ways to do more with less.  Nonetheless, it is still essential that we do the best we can with what we have, even under tough economic circumstances, to provide adequate educational opportunities for the next generation.  Current educational success is a necessary prerequisite to future economic success.

July 14, 2010 

Welcome to the new ELC Website! 

It will be under construction for a while, but we hope that once all the new features and content are online and running, that this new ELC Website will become your first stop for information on education law and policy.

The new website includes the ELC Blog, in which you can find brief reviews, news, and commentary on the most current issues in education law and policy, and links to the full texts of new court decsions, statutes, regulations, etc.

We appreciate your patience, and hope to have this new website up and running a.s.a.p.

ELC Updates

ELC 2010 Update