Winter 2013 - Education Law Symposium

State Takeovers of School Districts and Related Litigation: Michigan as a Case Study

Educ. Reform & Governance

State Takeovers of School Districts and Related Litigation: Michigan as a Case Study

The question of the proper role of a state in school districts’ fiscal crises is an important one. Like Michigan, numerous states have been grappling with that same question—Indiana, Missouri, and Rhode Island, for example. Accordingly, learning about what has been happening in Michigan provides an exceptional opportunity for legislators, attorneys, academics, and advocates from across the country to reflect on how their own states should assist school districts in fiscal crisis, and when state intervention goes too far. Part I of this paper briefly discusses the various legal mechanisms for state intervention in school districts’ and other municipalities’ fiscal crises; it also analyzes Michigan’s 1988, 1990, and 2011 takeover statutes and the litigation and other public opposition to those statutes. Part II focuses on four substantial shortcomings contained in Michigan’s 2011 takeover statute, which was ultimately rescinded by Michigan voters.

Charter schools have been aggressively promoted as a lifeboat for underserved students languishing in traditional public schools. Ironically, the self-selection enrollment process common to the vast majority of charter schools denies meaningful access to the most disadvantaged students in our schools. Student enrollment for the majority of charter schools in the country is structured as an opt-in process requiring a parent or guardian to take the initial step of applying to a particular school on his or her child’s behalf. Legislative efforts are underway in some states to change the charter school student enrollment process from an opt-in to an opt-out, and the resulting implications for equity and access are profound. Ultimately, if taxpayers are to be asked to continue funding charter schools, policymakers must ensure that the goals of state laws authorizing charter schools are furthered by the current means utilized to enroll students.

Using the experience of one community that has undergone a district line altering transformation as a case study, this article argues that endorsement from the state is an essential element for success in efforts to mitigate the educational inequities caused by district boundaries and then offers specific steps states can take to support such changes even without altering district boundaries. Part I introduces the ways in which school district lines can serve as barriers to educational opportunities, and Part II summarizes several current educational reform proposals and trends that either have the intent or effect of weakening the power of district lines. Part III examines the rationale for the largely successful suburban resistance to district-weakening proposals, filling out the context in which conversations on these topics take place. The case study of the merger of urban and suburban school districts in Memphis and Shelby County, Tennessee, is introduced in Part IV. Utilizing this experience, Part V identifies lessons learned from Memphis, focusing on the role of the state in assisting or obstructing elimination of interdistrict disparities. Part VI offers practical and politically viable suggestions that states can take to address these issues.

In a nation founded on liberty, self-government, and local initiative—and at a time when America’s educational system is widely recognized to be in financial crisis and requires substantial improvement—it’s startling that any State would prohibit its communities from improving their public schools through collective civic action. But the State of Kansas has done just that. On December 10, 2010, facing significant budget cuts, teacher lay-offs, escalating class sizes, and imminent closure of beloved neighborhood schools, concerned parents and local taxpayers filed suit in federal court challenging a state law that prohibits residents from raising extra money by voluntarily levying higher local taxes. Through the Spending Cap, the Kansas legislature essentially tells its citizens that they may not dedicate their own property to the future of their own children by raising their own taxes to improve their own public school system even though that is what the voters want to do. Past school funding lawsuits have tried only to raise (or level) the floor; Petrella seeks to remove the ceiling. This essay argues that at a time when it is widely predicted that our children will have to shoulder the staggering national debt during their adult years, it is alarming that any state legislature would strip children of the tools they will need to earn a decent future living. Better education is the stepping stone to better jobs and prosperity. Therefore, holding back some children to give the appearance of statewide uniformity among all children merely sets our children up for failure both individually and as a society.

The issue of whether schools may, should, or must share information about their students with the police is in the spotlight. Schools struggle with whether, when, and how to involve police, both when students appear to present a threat to others and also when the school suspects a student of criminal behavior. This article focuses on the complex and difficult body of laws governing schools’ sharing of student information with police, an issue in both K-12 and higher education, and in both public and private schools. It examines the extent to which each area of law forbids, requires, or permits but does not require, schools to share information with police. The article also notes potential consequences for violations (such as sharing information when the law forbids it, or not sharing information when the law requires it). There may also be indirect consequences; for example, if a school’s sharing of information with police violates FERPA, is that information inadmissible in resulting criminal proceedings? It then explores the variety of arrangements police have with schools, and how these arrangements may impact legal regulation of information sharing by schools.

Over four decades ago, a divided U.S. Supreme Court issued a seminal decision defining the contours of student free speech rights within the context of the public schools. Neither the Tinker decision nor the Court’s three subsequent student speech rulings contemplated the impact student off-campus use of a ubiquitous internet would have inside the schoolhouse gate. The absence of a definitive Supreme Court ruling clarifying the authority of school leaders to impose disciplinary consequences for student off-campus internet speech that permeates the metaphorical gate is creating a vexing challenge for both school leaders and lower courts. This paper predicts that when the U.S. Supreme Court accepts a student off-campus cyberspeech case for review, Tinker’s second prong will heavily influence the decision. This paper reviews the four Supreme Court decisions that currently define the contours of student free speech rights. Next, several lower court rulings dealing with off-campus student cyberspeech are reviewed in light of Tinker’s second prong, regulation of student speech that “interferes with the rights of others”. Finally the paper explores the genesis of the “rights of others” language and advocates for the Court to embrace Tinker’s less frequently applied second prong as an independent analytical tool to be used by lower courts and school leaders in addressing student off-campus cyberspeech when it permeates the schoolhouse gate.

This article discusses Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990 and the obligations elementary and secondary educational institutions have to students with disabilities according to these statutes. Part I discusses school districts’ general obligations under Section 504 and Title II, including the identification, evaluation, and placement of students with disabilities and discusses the Americans with Disabilities Act Amendments Act of 2008. Part II discusses individual healthcare plans (IHPs) and considerations applied when determining whether students with IHPs and health related conditions should be evaluated for eligibility for special education or related services under Section 504 and Title II. Part III summarizes several U.S. Department of Education Office for Civil Rights’ (OCR) investigations and one OCR compliance review related to a school district’s use of IHPs as opposed to Section 504 plans. Part IV concludes the article by summarizing the differences between IHPs and Section 504 plans and encouraging school districts to examine their policies and practices to ensure that students with health related conditions receive the benefits of Section 504 protections as appropriate.

Our public educational system made a national commitment to appropriately educate students with disabilities through the provision of special education and related services with the passage of sweeping federal legislation in 1975 of what is now known as the Individuals with Disabilities in Education Act (IDEA). Since then, school districts in every state receiving federal funds under IDEA must identify children suspected of needing special education, must evaluate them, and must propose services to meet their individual needs through a collaborative procedural structure that treats parents as partners. These provisions currently bring special educational services to over six million children. School districts are charged with providing eligible children with a free appropriate public education (FAPE) in the least restrictive environment (LRE). But this commitment is not always adequately discharged, and when it is not, the IDEA provides for a dispute resolution process, including both an administrative due process hearing and judicial review, to remedy IDEA violations. This article focuses on the increased attention to, and use of, compensatory education as a remedy for IDEA violations. Little in the literature offers prescriptive guidance for compensatory education remedies under the IDEA. This article, in Part II, explains the IDEA’s mandates to provide appropriate special educational services and the various bases for claims that a school district has violated a child’s right to FAPE. Part III describes the adjudicative process for resolving disputes under the IDEA, a process which imposes upon hearing officers and courts the duty to order appropriate relief. Part IV outlines the law supporting equitable relief in IDEA cases, including the use of compensatory education as a part of a remedial order. Part V reviews the dominant approaches and analyzes their strengths and deficiencies. Finally, the article suggests a more workable approach that takes into account lost time and needed services but avoids imposing difficult evidentiary burdens.

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