How K-12 Students Can Profit Off of Non-Profits, by Jacob Morales

Posted on October 4, 2023 by Joseph Larimer

It is often said that it takes a village to raise a child. Raising and educating children is not an easy task, especially in “villages” where resources for youth are comparatively scarce. To remedy such shortages, students have looked to tools beyond their families and schools to achieve personal success. In this way, non-profit organizations have long supported students through moments such as high school graduation and applying for college.

Photo from Pexels.

There are about 1.8 million registered non-profit organizations in the US, many of which provide resources directed at students. To prevent students from having to seek out these organizations on their own, school districts should facilitate this process by forming meaningful partnerships with non-profit organizations.

How education non-profits can be an asset to school systems

In many ways, education non-profit organizations step in to fill the gaps that schools experience. Each organization targets unique areas of education by providing resources relating to tutoring, college access, after-school programming, and mental health services. Some of the most prominent organizations doing this work include City Year, AmeriCorps, and Khan Academy. These groups have a successful track record of bringing free resources to students who need them most.

Other organizations add value to school systems on the back end. For example, The New Teacher’s Project (TNTP) partnered with the New York City Department of Education to recruit thousands of teachers in response to a shortage of qualified educators that disproportionately affected students of color in 2000. As reflected here, schools do not always have the means to solve problems on their own. This is where non-profits can be of assistance to the education system.

The relevance of non-profits was amplified during the COVID-19 pandemic. Schools transitioning to remote learning presented the field of education with unforeseeable challenges. Some of these obstacles included leaving low-income students without access to school meals and the necessary technology to attend class virtually. As expected, non-profits acted promptly to address these disparities.

Donating over 5,000 computers to students in need, Bridging Tech provided students with access to technology. These types of interventions are especially beneficial to Black and Hispanic students who are more likely to lack the necessary tools for remote learning. There will always be a demand for these kinds of resources that address educational disparities. Moving forward, schools should consider ways they can make the most of organizations that make it their mission to support students.

Even students can recognize the role that non-profits play in propelling their education forward. For example, Breakthrough Central Texas is an organization that seeks to create more first-generation college graduates. Breakthrough provides tutoring, mentoring, and advising that follow participants from middle school to college. Participants know better than anyone how these comprehensive programs have academically empowered them, especially during the pandemic. One college graduate notes, “Breakthrough played an integral role in making sure I stayed on track to achieve my college dreams.”

Photo from Pexels.

Ways to leverage non-profit resources through formal partnerships

The idea of partnerships between school systems and non-profit organizations is not a new one. In fact, many organizations rely on formal partnerships with school districts as a vehicle to provide their services. For example, PENCIL operates on a model that connects schools with business professionals that mentor students, providing them with resources to successfully meet their career goals. In PENCIL’s three-year retrospective review, the organization finds that this program provides students with meaningful networking opportunities and recommends that these school partnerships be scaled and expanded in New York City.

Examples such as this one raise the question of how other school districts can establish similar connections with local organizations. In 2016, the St. Louis Public Schools Foundation published the Guide for Effective School & Community Partnerships. This guide, directed towards the St. Louis school system, provides resources for schools to select, form, and evaluate partnerships with educational non-profits. Specifically, the guide provides tools to help schools form contractual relationships with relevant organizations through a form called a “memorandum of understanding” (See page 9 of the guide). These contracts officially recognize the partnership, define the obligations of both parties, and provide standards to measure performance. The benefit of forming an agreement with a local organization is that it helps schools select partners that are meaningful and tailored to a school’s specific needs.

Photo from Pexels.

Schools can act now to build relationships with community organizations

Every school district has areas for improvement that cannot always be resolved internally. Looking to community assets can be one way that schools can counteract shortcomings. There is also more to gain from non-profit partnerships than just resources. These connections can allow students to identify as a part of a larger community. Schools that have prioritized community education have seen improvements across all domains of development.

Although helpful, it is not necessary that all partnerships between schools and external groups result in a contractual agreement. Instead, schools can develop less formal relationships by providing physical spaces for non-profit events or sending emails to parents about available resources. Schools are in the best position to identify the specific needs of every child and should address them by exhausting all available tools. In looking to the surrounding community for support, schools will expand their networks and effectively prepare students for their next stage in life.

Jacob Morales is a student at Loyola University Chicago School of Law and wrote this blog as a part of the Education Law and Policy course.

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Preschool Doesn’t Improve Test Scores: Why That’s Good, by John Groden

Posted on June 22, 2023 by Joseph Larimer

Preschool attendance does not actually improve standardized test scores. This recent finding seems to fly in the face of decades of research, advocacy, and common sense. It also calls into question the billions of dollars that federal, state, and local governments are spending to expand pre-K education towards universal access. However, reframing these results from another perspective allows us to rethink some fundamental questions: How are we measuring education results? What are these educational results even for?

A Happy Accident

In the 1990s, the mayor of Boston decided to prioritize universal kindergarten and shifted money away from the preschool budget. School administrators resorted to a randomized lottery to divvy up the limited number of remaining public preschool slots. The presence of such a natural experiment — two nearly identical groups of children differentiated by one year of preschool — presented a rare opportunity for researchers to analyze the effectiveness of preschool.

The results, however, surprised researchers, who found “no detectable impact on state achievement test scores.” Such results seem disappointing when you consider how much weight and discussion America places on standardized test scores. But the researchers also discovered that the students who attended preschool gained a host of other benefits: they became less likely to skip class, get suspended, or sent to a juvenile detention facility but were more likely to take the SAT’s, graduate high school, and attend college. Other randomized and peer-reviewed studies have found that students who attend preschool are healthier, happier, better employed, more likely to cook their own meals, and less incarcerated than their peers from similar or worse neighborhoods.

Preschoolers during a counting lesson. Photo from Pavel Danilyuk on Pexels.

These results indicate that while preschool might not make kids “smarter” in terms of raw academic achievement, it does meaningfully improve their lives (and the connected lives of their siblings and children). These results likely stem from the development of social and emotional skills in preschool. Such skills help children better resist immediate impulses and persist in their long-term goals. Preschool, in short, stimulates character growth in future citizens that pays dividends for students and society down the road. These long-term successes of character training, while important, are strikingly different from our current focus on short-term academic results.

The Current Short-Term Metrics

While standardized tests have been around in American education since the 1800s, policymakers began relying on them more in the 21st century. In 2001, the No Child Left Behind Act (NCLB) linked standardized testing results to federal school funding. The Every Student Succeeds Act (ESSA, 2015) delegated much of the testing administration to the states, but retained the focus on yearly standardized tests to determine funding. All states now measure four main metrics: achievement on English/Language Arts (ELA) and math; English proficiency; graduation rates; and a state-chosen indicator of school quality (usually chronic absenteeism).

Policymakers, recently, have begun to introduce additional and more nuanced metrics in school accountability. Illinois, for example, updated their accountability metrics after the ESSA so that student growth on standardized tests matters twice as much as the raw proficiency on test scores. Illinois also includes “Student Success Indicators” like absenteeism rates, school “climate” surveys, and college and career readiness as 25% of their accountability metrics. While this is a step in the right direction, it will be several years before the results of such changes are evident. Moreover, 75% of the school’s performance is still based on the standardized test scores that reveal only short-term academic performance; in short, the updates are just tweaks, not substantive overhauls to the system. This overwhelming emphasis on test scores still centers education policy discussions on short-term metrics and solutions. Meanwhile, meaningful interventions, like universal access to preschool, are given short shrift because their impact takes much longer to assess.

As psychologists and economists will tell you, you become what you measure; put another way, what gets assessed gets addressed. According to the (in)famous Campbell’s law, relying too much on any quantitative measurement distorts the incentives and cultivates corruption within school systems. The real-life effects of these distortions can be seen in the Atlanta testing scandal (where administrators cheated on tests to get more school funding), the T.M. Landry scandal (where the school faked grades and just focused on SAT prep in order to get disadvantaged students into top colleges), and in the anxiety-inducing stress responses of high-stakes tests. To paraphrase Chimamanda Adichie, the danger of this single story about test scores and education performance is not that they are inaccurate, it is that they are incomplete. They do not tell the whole story about the goals or content of American education. The focus on test scores tells students, educators, and policymakers that the purpose of education is to get better at tests; in contrast, America has a rich, if neglected, tradition of broader educational goals: character and citizenship training.

The American Tradition of Character & Civic Education

Historically, the wider goal of education as a form of character and citizenship training has deep American roots. The Founders, influenced by the Greek and Roman classics, believed that you had to master your passions in order to master political deliberation, that you have to govern your self before you can govern as a citizen. The renowned American educator John Dewey argued that schools needed to be training grounds for citizenship, that “Democracy has to be born anew every generation, and education is its midwife.” President Teddy Roosevelt proclaimed that “education must contain much besides book-learning in order to be really good…no keenness and subtleness of intellect, no polish, no cleverness, in any way make up for the lack of the great solid qualities. Self-restraint, self-mastery, common sense, the power of accepting individual responsibility and yet of acting in conjunction with others, courage and resolution—these are the qualities which mark a masterful people.”

President Theodore Roosevelt giving a speech, presumably about citizenship education. Photo from the Library of Congress on Picryl.

Moreover, education as citizenship training is not limited to just improving social-emotional skills like discipline or executive functioning. Citizenship education should also develop the ability of students to effectively engage and dialogue with the social challenges of the day. As the Progressive Era journalist SS McClure argued, the “vitality of democracy” depends on “popular knowledge of complex questions.” Today, this would include a renewed emphasis on media literacy and respectful dialogue to prepare citizens to better engage with the shared democratic process.

Renewing the importance of character and citizenship training in American education would also mitigate the harms of relying mainly on test scores to evaluate learning. The incorporation of additional metrics would lower the pressure of standardized tests and express a better message: that students, and schools, are more than their test scores.

Alternative Accountability

Educators and policymakers can pull from numerous sources to improve their accountability metrics, including ones around character and citizenship training. The Danielson Framework for assessing teachers incorporates numerous inputs around four domains, instead of just measuring one output (test scores). Alnoor Ebrahim persuasively argues for more nuanced accountability metrics for complex social change models, such as education. Specifically, he points out that measurement itself is an act of “social construction,” and that more integrated and balanced accountability systems include a variety of inputs, outputs, and societal outcomes. For education, that would mean including more inputs like attendance, effective pedagogies, and school cultures, and societal outcomes like incarceration rates, college attendance, and participation in civic life.

Policymakers can use the preschool results as an example to backwards design new, non-test metrics and goals. If policymakers want to incorporate character training metrics, schools can measure the extent and effectiveness of social-emotional learning programs through surveys, teacher feedback, and innovative performance assessments. Moreover, policymakers could also prioritize process over product by focusing on incentivizing evidence-based interventions like universal preschool, universal free lunches, and restorative justice programs that pay dividends down the road. Taking a page from the Danielson framework, policymakers could also incorporate metrics on the presence of engaging curricula, fine arts offerings, and mentoring programs. For citizenship training, new metrics could include the involvement of the community in the school, experiential learning opportunities for the students to volunteer and change their communities, and programs to help students engage with people of differing backgrounds and beliefs.

Students experimenting. Photo from Monstera on Pexels.

Any of these experimental new metrics would require patience and hope. It will take years to fully realize the effects of such programs through later proxies like suspension, graduation, incarceration, and voting rates for students. But today’s educators and policymakers should consider the importance of planting such experimental seeds during the opportunities of a post-pandemic world.

Rethink, Experiment, Invest

Post-pandemic, we have a rare opportunity to rethink the goals and structure of American education. In addition, the surprising results of preschool attendance (no change to test scores but improved health and character) should serve as a revelatory invitation to reassess how and what we measure in education. As we move forward, educators and policymakers should broaden their horizons to a more inclusive and longer-term perspective on education. Embrace more nuanced accountability systems, incorporate additional, non-testing metrics, return to the American tradition of character and citizenship training, and invest in the future of our children. Preschool may not make kids “smarter,” but it does transform them into healthier, happier, and more effective citizens. And we need those citizens in order to continue the American experiment for a more perfect union.

John Groden is a law student at Loyola University Chicago School of Law and wrote this blog post as a part of the Education Law and Policy course.

Posted in Educational policy, Preschool, public education, school curriculum | Comments Off on Preschool Doesn’t Improve Test Scores: Why That’s Good, by John Groden

Call for Paper Proposals: Developing an Antiracist Research Agenda to Advance Restorative Practices in PreK-12 Schools

Posted on January 23, 2023 by Miranda Johnson

University of California College of Law, San Francisco and Loyola University Chicago Schools of Education and Law will be hosting an interdisciplinary convening series entitled “An Antiracist Research Agenda to Advance Restorative Practices in PreK-12 Schools.” We are seeking proposals for papers on the topic of antiracist education research for school-based restorative practices and restorative justice education laws and policies. The papers will be presented at a two-day interdisciplinary working conference to be held from October 12 to October 13, 2023, at University of California College of Law, San Francisco. Presenters will also be asked to participate in pre-conference and post-conference sessions to be held on Zoom. This series of convenings is made possible through funding from the Spencer Foundation.

These convenings will bring together a small interdisciplinary group of scholars and practitioners with specialized knowledge relating to the intersection of education and restorative practices. We seek participants from multiple disciplines, including education, psychology, sociology, social work, and critical race theory, and with research expertise from a broad range of methodologies (e.g., quantitative, qualitative, and mixed methodologies). We welcome interdisciplinary co-authorship and strongly encourage contributions from authors with lived experience of racism, including non-academic community members; school staff and administrators; restorative justice practitioners; junior faculty; and authors from Historically Black Colleges and Universities and Hispanic-Serving Institutions, tribal colleges and universities, and Asian American & PaciWc Islander Serving Institutions.

A stipend of $225 per paper will be awarded following submission and presentation of the selected conference papers. Reasonable travel expenses for the primary author will be reimbursed upon submission of receipts. Following the conference, up to 10 authors will be invited to submit a conference paper for publication in an edited journal volume or a proposed edited book, and each will receive a $200 stipend following submission of the finalized paper and completion of the review and editing process.

Please see full submission requirements posted below. Send your completed submission materials via the online form by April 15, 2023 (extended deadline)

Anti-Racist RJ Working Conference – Call for Paper Proposals Submission Guidelines

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Teachers’ Freedom of Expression on Social Media: How free are teachers to speak their mind on their personal social media accounts? – by Rachel Nordhoff

Posted on December 20, 2022 by Miranda Johnson

How free are teachers to speak their mind on their personal social media accounts?

Photo by Adem AY on Unsplash.

With the rise of social media, teachers are in the public eye more than ever before. As students’ First Amendment rights have been put under a microscope due to the Mahanoy case, we should also consider a teacher’s right to free speech.

The First Amendment rights of teachers were first considered in the case Pickering v. Board of Education. Here, a teacher wrote a letter to the Editor of a local paper complaining about a tax increase put forth by the school board. In response, the school board fired the teacher. The teacher sued the school district asserting that the letter was protected under the First Amendment right to free speech. In their decision, the Supreme Court laid out a balancing test to determine whether this would be protected under the First Amendment. The test weighs the interests of the teacher as a citizen and their responsibility to comment on matters of public concern versus the interests of the state, as an employer, in promoting an efficient learning environment. Here, the test tipped in favor of the teacher, and the speech was protected.

Recently, we have seen an uptick of teachers striving to be “influencers” on social media platforms such as TikTok, Instagram, and Youtube.  Teachers are role models for students, and have a unique role as they act in loco parentis, which refers to the fact that when students are at school, the teachers are acting “in place of a parent.” Not only is this a special responsibility granted to teachers, but their position is elevated even further because teachers are typically employees of the state.

On a personal level, social media can be a valuable tool for teachers to share the classroom, promote learning and to work through issues being faced by teachers and students around the world. However, teachers’ social media accounts have the potential to be seen by their students. While a complete ban on social media for teachers would be quite unreasonable, the First Amendment protects a public employee’s speech only when their words address matters of “public concern.” There are four main types of speech that could potentially put a teacher’s relationship at risk with their school district, including:

  1. Befriending students on social media sites and communicating with them
  2. Criticizing the school, or the school community online
  3. Posting inappropriate photos/comments
  4. Commenting on political or social issues.

Photo by Kai Pilger on Unsplash.

Inappropriate Communications

In Spanierman v. Hughes, the District Court of Connecticut allowed a teacher to be fired based on his personal Myspace page. The teacher claimed he joined the site because he wanted to communicate with students to talk about homework and learn more about them so he could better relate to their lives. However, when the administration investigated the teacher’s profile, they uncovered that he was messaging students about their personal lives, weekend plans, and relationships. The court found that the teacher’s communications were inappropriate and were not protected speech because the messages had nothing to do with school or matters of “public concern.”

Criticizing Students

It should be noted that a teacher’s presence on social media will likely not be considered protected speech when they engage in behavior that criticizes their students – especially when the statements cause a significant disruption. In Munroe v. Central Buck School Dist., the Pennsylvania district court grappled with a situation where a teacher kept a blog mostly about her daily life, except on a few occasions where she discussed her job as a teacher.

In this case, the teacher kept a blog with only nine subscribers (two of which were her and her husband!). Most of her blog posts were about personal matters. However, occasionally she wrote about her students, co-workers, and complained about the school administration. In one post, that was the focus of the law suit she called her students a slew of names like, “Dunderhead”, “Complainer”, “Drama Queen”. This post ultimately blew up when it was picked up by national news and circulated amongst the students.

The teacher tried to argue that since she had so few subscribers her speech should be protected under the First Amendment because it was unlikely that her students or coworkers would see the blog. However, because she published her views on the internet and a journalist was able to find her posts the court found that it was foreseeable that students would find them as well.

This court asserted that schools have the right to regulate disruptive and unprofessional conduct noting that to be an effective teacher there needs to be a certain degree of trust between the teacher and the students. Here, the teacher’s tone and description of her students eroded the necessary trust and respect required for an effective learning environment. The court ruled that the language used was so demeaning it did not warrant protection under the Pickering test because “the speech was so disruptive so as to diminish any legitimate interest in its expression.”

Political or Social Issues

In today’s polarizing political climate, one last issue that has the potential to get teachers in trouble is if they make a comment on a political or social issue. However, this speech is typically protected under the Pickering standard. If a teacher were to make a post regarding a political decision, an election, a war, or another social issue- this would be the most obvious example of the citizen/public concern test that is required under Pickering, meaning that the speech is likely to be protected. However, as we saw in the Munroe case, if the language used is too inflammatory, or if the statements are so egregious that they cause a disruption at school- the social value of the speech may be overshadowed, forfeiting First Amendment protection.

Now what?

Teachers maintain the right to use social media as they see fit, however because of their unique position as role models and pseudo-parents to students, they should act responsibly online. In recent years, there has been an increase in legislative response to govern the way that teachers use social media. For example in Missouri, the government made teacher-student interaction on Facebook illegal and in Utah the board of education mandated that every school district needs to develop a policy on teacher’s social network use. All teachers should be aware of their own district’s social media policy but regardless of whether one is in place, teachers should instill boundaries between their students and their personal lives and should keep their online content appropriate.

Before posting on social media, I would encourage all teachers to consider whether they would be comfortable with their students, principals, and students’ parents seeing their posts- regardless of how many followers they have. Teachers should remember that their students are potentially on social media and should refrain from mentioning them in a negative light or doing anything that would affect the trust and respect they have built in the classroom. While, in general teachers are welcome to comment on the political climate and other issues as any informed citizen would, this protection can be waived if teachers use too inflammatory of language or if their words cause a disruption at school. Overall, it all boils down to one piece of advice: think before you post.

Rachel Nordhoff is a law student at Loyola University of Chicago Law School and wrote this blog post as part of the Education Law Practicum.

Posted in First Amendment, teacher training | Comments Off on Teachers’ Freedom of Expression on Social Media: How free are teachers to speak their mind on their personal social media accounts? – by Rachel Nordhoff

The Federal Government’s Role in Ending Exclusionary Discipline, by Jessi Dixon

Posted on October 15, 2022 by Miranda Johnson

The federal government has an essential role in protecting students of color. School discipline policies and procedures have an adverse impact on the educational outcomes of students. According to a 2018 report from the Center for Promise, harsh school discipline policies and practices lead students to disconnect from school. Discipline policies are often reactive to behavior and rarely have a preventative component to address the behavior. Further, discipline policies disproportionately affect students of color, especially Black boys. Policies often do not consider what the students experience in school and at home that might affect their behavior.  

Fortunately, there is a push to revise disciplinary policies. These reforms are centered around phasing out exclusionary discipline for non-violent offenses. While some states and school districts are beginning to revise their policies, the lack of federal oversight in school discipline is preventing the progress of exclusionary discipline reform. While critics claim that the federal government does not have a role in school discipline reform, there is precedent. Ultimately, increased federal intervention into school discipline reform is essential as we move toward ending exclusionary discipline. 

It’s all in the Data 

Exclusionary discipline is the practice of temporarily removing students from the school as a form of punishment. This includes suspensions and expulsions. Suspensions and expulsions are considered paths of the school-to-prison pipeline, as students who experience exclusionary discipline are more likely to have continued experiences with the criminal justice system. 

The Civil Rights Data Collection (CRDC) is a survey that measures student access to courses and resources related to federal civil rights laws. The 2015-2016 CRDC, released in 2018, evaluated how safe students are at school by collecting data on law enforcement referrals (students reported to a law enforcement agency/official for an incident on school grounds during school-related events including school transportation) and school-related arrests (arrest of a student for any activity on school grounds, off-campus school activity, or due to a referral by any school official), restraint and seclusion, and school discipline.  

In the 2015-16 school year, Black males made up eight percent of total male enrollment but 25 percent of out-of-school suspensions and 23 percent of expulsions. During the same period, Black students made up 15 percent of total student enrollment but made-up 31 percent of referrals to law enforcement or school-related arrests.  

 Federal Guidance Rollercoaster 

In 2011 the Obama Administration announced efforts to respond to the school-to-prison pipeline with the “Supportive School Discipline Initiative.” Some of the goals of the Supportive School Discipline Initiative are: 

  1. to develop guidance to ensure that school discipline policies and practices comply with the nation’s civil rights laws and to promote positive disciplinary options to both keep kids in school and improve the climate for learning and 
  2. to promote awareness and knowledge about evidence-based and promising policies and practices among state judicial and education leadership.”  

 To accomplish this, the Department of Education and the Department of Justice coordinated with non-profit organizations to address inappropriate school discipline. This initiative resulted in a school discipline guidance package. In 2014, the Administration released a discipline package that aimed to help states, districts, and schools develop policies and practices that comply with federal law. The resource package consisted of a Dear Colleague letter on civil rights and discipline to show how schools can meet their legal obligations to administer student discipline without discriminating against students based on race, color, or national origin; and guiding principles that use emerging research and best practices to describe action steps that can help guide state and local school districts to improve school climate and discipline. 

In December 2018, the Trump Administration released their own Dear Colleague letter withdrawing the policy and guidance issued by the Obama Administration. The Trump Administration described the guidance as too harsh and claimed that it took decision-making away from local officials to address school safety.  

In June 2021, the Biden Administration issued a Request for Information asking members of the public to submit comments on the administration of school discipline in pre-K through 12 schools. Additionally, 38 Attorneys Generals have called on the Biden Administration to reissue the guidance and expand it to include school discipline based on sex, sexual orientation, gender identity, and disability.  

The overrepresentation of Black, Brown, and Indigenous students in exclusionary discipline is a social justice issue. Extensive research shows the direct link between exclusionary discipline consequences and entrance to the prison and the criminal justice system. 

 There needs to be an increase in investigation and litigation 

 While reinstating the guidance is an essential first step, it is important to remember that it is just that. Guidance. Just because the information is there does not mean that school districts and states have to use it or are held accountable in any way. That is why the federal government needs to lean into framing exclusionary discipline as a civil rights issue that violates federal law. 

The original guidance introduced was jointly issued with the Department of Justice, which provided legal guidance on how discriminatory student discipline practices were potential violations of Title IV and Title VI of the Civil Rights Act of 1964. Titles IV and VI protect students from discrimination based on race in connection with all school academic and educational programs and activities, including programs a school administers to ensure and maintain school safety and student. The Department of Justice is empowered to investigate public schools and colleges and even prosecute. However, the Department rarely wields this power.  

The Department of Justice should wield its investigative power to prosecute public schools that continue to use exclusionary discipline that disproportionally impact students of color. The increased oversight is positioned on holding schools accountable for federal Civil Rights law violations. Thus, the federal government has authority. Although investigation can take a long time to complete, it should not deter the government from authorizing them. The threat of increased oversight can sometimes be enough to force change, and the actual consequences that schools can face will also be an incentive.  

Reinstating the Obama Administration’s federal guidance is a step in the right direction. It will allow states and school districts to have and use research that provides tangible evidence that reform is necessary. However, there needs to be more done to reform school discipline and truly hold schools and states accountable. 

 Jessi Dixon is a student at Loyola University Chicago School of Law and wrote this blog post as part of the Education Law Practicum. 

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Protecting White Children: The Moral Panic About Critical Race Theory by Zulay Valencia Diaz

Posted on October 4, 2022 by Miranda Johnson

Are innocent white children being made to feel guilty for the sins of people long gone? Worse yet, are students being indoctrinated with anti-American rhetoric by the institutions to which their learning has been entrusted? Many conservatives certainly seem to think so. These suspicions, fanned by right-wing media like Fox News, have given rise to widespread efforts to stop schools from adopting socially conscious K-12 curriculums. From Idaho to South Carolina and New Hampshire to Texas, state legislatures across the nation are passing laws to restrict the teaching of “critical race theory.” But while they fervently rail against its teaching, they have failed to answer a crucial question: what exactly is critical race theory?

What Is Critical Race Theory?

Critical race theory is a framework of legal analysis developed by Black, Latinx, and Asian legal scholars in the 1970s. Derrick Bell and Kimberlé Crenshaw are two of its most prominent pioneers, but it has been influenced by scholars across the country. This legal framework analyzes the effects of historically racist institutions and their persisting effects on people of color, terming this phenomenon systemic racism. Systemic racism focuses, not on individual actors, but on the numerous institutions that come together to shape and impact life in the US. In the years since its inception, critical race theory has expanded beyond the legal field and is now used in other academic disciplines including sociology and history. But despite current popular narratives to the contrary, it is not a part of K-12 education.

Anti-CRT Rumblings

There are disputes about when calls for banning CRT from K-12 curriculums first began. Some people believe that they arose from the executive order Trump issued in September 2020 banning diversity training in federal agencies. But this in turn can be traced back to the significant rise in racial awareness that came about earlier that year when George Floyd was murdered by a police officer in Minneapolis. This tragic event was captured on camera and lead to weeks of nationwide protests, uprisings, and calls for race-based reforms to American society. That summer the news and social media were filled with conversations about the continuing effects of racism, the brutality of the criminal legal system, and potential ways to mitigate this decades-long crisis. Books by anti-racist educators like Ibram Kendi and Robin DiAngelo sold out and were the topic of discussion in numerous book clubs. It was, some claim, the greatest racial reckoning the US has faced in a long time.

Others trace the start of this movement to pre-pandemic times. In commemoration of the 400 year anniversary of when enslaved people were first brought to the then American colonies, Nikole Hanna-Jones published the 1619 Project in the New York Times Magazine. So called because it posits 1619 as the true beginning of the United States, this collection of essays, reflections, and photographs highlights the presence of Black people in the United States since its days as British colonies. It was widely praised for shining light on Black American history which is too often erased or at least minimized. Since its original publication, it has been turned into a book and even been adapted to be part of culturally sensitive educational materials. But it also received a ferocious backlash from conservative circles. Then-president Trump established the 1776 Commission to counter what he called anti-American propaganda.

Efforts to Mobilize Against Critical Race Theory

Regardless of the catalyst, beginning in 2021, state legislatures and school boards began mobilizing to ban the teaching of critical race theory in K-12 education. But although this is the blanket term used by detractors of culturally sensitive curriculums, not all of the bills, passed and proposed, actually use the phrase critical race theory. Furthermore, they do not all use the same tactics. Some outright focus on curtailing the subjects that teachers can discuss. Alternatively, other more “lenient” bills call for teachers to publicly cite the materials they use in their lesson plans in the name of “transparency.”

A common thread that runs through these efforts is how they are framed. They are often couched in the language of equality, fairness, and inclusivity. Notable proponents like Florida’s governor Ron DeSantis have gone so far as to invoke the overused, watered down, and distorted Martin Luther King quote that conservatives trot out when they are working towards dismantling race conscious policies: people should be judged “not by the color of their skin but by the content of their character.” Pundits and guests on conservative political shows and blogs parade anecdotes about innocent, often very young, children being made to feel guilty and labelled as oppressors for the actions of people who are long since dead. Bill writers and governors draw on parental concerns for the emotional well-being of white children who are forced into uncomfortable conversations about bygone situations over which they have no control.

The swiftness with which states and local school boards began to introduce bills and regulations respectively shows that the rise in calls for CRT bans is not coincidental. On the contrary, it is a well-coordinated tactic supported by conservative parents, school boards officials, journalists and government representatives from every level. Think tanks and advocacy groups like the Manhattan Institute, Citizens for Renewing America, and the Heritage Foundation have published research and anecdotes of conservative parents and teachers. They have also drawn up model legislation for state legislatures to use when drafting their bills. These groups are staffed, and sometimes headed, by former Trump administration officials. Christopher Rufo, a journalist and former documentary film maker, has received a grant from the Manhattan Institute to help him continue with mobilization effort. It was he who latched on critical race theory as the term to use in order to rally conservatives against anti-racism efforts.

Beginning in the summer of 2020, at the height of racial justice-oriented conversations prompted by George Floyd’s murder, Rufo began his crusade. First, he published a piece in Civ Journal, a Manhattan Institute magazine, exposing workplace diversity trainings. Thanks to its overwhelmingly positive reception in conservative circles, he continued his campaign. In the ensuing months, he began going on press tours and labeling art specifically as the root of this wave of “anti-American propaganda.” Today, he is one of the leading figures of a movement that has coalesced to prevent the implementation of culturally sensitive curriculums in primary and secondary schools.

A Call to Action

Multiple studies have shown that candid conversations about race are beneficial to children. Despite this, adults usually delay these discussions. Luckily, over the last decade, as the country has moved away from an erroneous belief that we live in a post racial society, schools have begun ensuring that curriculums are more racially relevant. Unfortunately, these efforts are rapidly being eroded by conservative groups and officials.

In order to fight this movement and maintain the positive momentum that difficult conversations about race have yielded, people committed to dismantling white supremacy must pursue our goals with a multi-pronged approach. The American Civil Liberties Union (ACLU) and other advocacy organizations have taken an important first step by filing a federal lawsuit to defend free speech and students’ rights to learn. It is important that CRT scholars educate the public about what CRT actually is in order to combat the disinformation campaign that is being waged in the media. It is also important that parents, school board members, and government officials unite in their various roles to stop the passage of anti-CRT bills and pass legislation that supports the efforts of educators who are trying to make education more racially and culturally inclusive.

Zulay Valencia Diaz is a student at Loyola University Chicago School of Law and wrote this blog as a part of the Education Law and Policy course. 

Posted in anti-racism, critical race theory, Educational equity, Uncategorized | Comments Off on Protecting White Children: The Moral Panic About Critical Race Theory by Zulay Valencia Diaz

Current Enrollment Required? Examining the Scope of Title IX’s Private Right of Action by Maddie Xilas

Posted on September 21, 2022 by Miranda Johnson

What affiliation with a university, if any, must complainants and/or respondents possess to ensure that plaintiffs have standing to hold universities accountable for deliberate indifference under Title IX? This threshold inquiry, one that is critically important to resolving preliminary questions of whether a university can be held accountable for alleged deliberate indifference to harassment, has been strangely difficult to answer. Neither the thousands of pages of decades worth of administrative Title IX guidance, nor any of the several Title IX related cases heard by the Supreme Court have directly and completely addressed this issue.

While the Department of Education (“ED”) has the power to clarify their perspective on who can hold universities accountable for deliberate indifference, recent regulations have not fully addressed this question, leaving advocates and attorneys without clear guidance as to what status, if any, is needed to sue for deliberate indifference.

Despite the prevailing confusion regarding how to answer this basic inquiry, as we enter the fall of 2022, this question is especially pertinent. First, in June of this year, the Biden administration released newly proposed Title IX regulations. In these proposed regulations ED re-defined the term complainant to mean, “(1) A student or employee who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX; or (2) A person other than a student or employee who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX and who was participating or attempting to participate in the recipient’s education program or activity when the alleged sex discrimination occurred.” Previously, the regulations defined a complainant only as “an individual who is alleged to be the victim of conduct that could constitute sexual harassment.”

ED’s effort to specifically establish that a person, other than a student or employee, has standing to file a sex discrimination complaint within a recipient institution likely indicates that ED believes a non-student complainant does have standing to sue a university for deliberate indifference under Title IX, assuming the complainant was participating, or attempting to participate in, the recipient’s education program or activity when the event the school was allegedly deliberately indifferent to occurred. That being said, it remains unclear whether ED will build on this by concretely addressing a complainants’ status and Title IX’s private right of action through further guidance. Notably, the proposed Title IX regulations do not currently address any aspect of Title IX’s private right of action, let alone its scope.

Second, the U.S. Court of Appeals for the Third Circuit recently addressed the scope of Title IX’s private right of action in Hall v. Millersville University, providing reasoning which can be applied to other cases related to standing and Title IX, particularly, as this article will argue, cases wherein non-students are victims.

A Quick History: Standing Under Title IX’s Private Right of Action & Hall

Case law has analyzed the question of whether a plaintiff can hold a university liable for deliberate indifference to alleged harassment under Title IX in two distinct contexts: (1) alleged deliberate indifference wherein the victim is a student, and the assailant is a non-student and (2) alleged deliberate indifference wherein the victim is a non-student and the assailant is a student.

In January of this year, the U.S. Court of Appeals for the Third Circuit answered the first question directly via Hall. The Third Circuit found that a university receiving federal funds can be held liable under Title IX, “for its deliberate indifference to known sexual harassment perpetrated by a non-student guest.” No doubt, Hall is an important case. No other federal appeals court has ruled on the non-student guest/student-victim standing question, making it a critical decision that directly affects a student-complainant’s ability to hold a university accountable, regardless of whether their abuser was affiliated with the school.

While the importance of this ruling for survivors is without question, advocates have pointed out that Hall is not truly an expansion of the law. Thus, while Hall, though important, may not be a groundbreaking revelation with regards to the first standing question presented above, I would argue it, through its reasoning, that it has the capacity to be groundbreaking for the second.

 Deliberate Indifference in Cases Where Non-Student Guests are Victims

As is alluded to above, this discussion will focus mainly on two sub-issues within the context of non-student guests who are victims: (1) what current case law says regarding whether a non-student-victim can file a lawsuit under Title IX’s private right of action and (2) how an application of the recently decided Hall case can, and should, be applied in considering whether a non-student-victim should be able to file a lawsuit under Title IX.

Current Case Law: Two Critical Cases: Jane Doe & K.T.

The question of whether a non-student has standing to sue a school under Title IX remains unclear. There are several cases which indicate that, in the context of a non-student victim and student-assailant, federal courts are taking an approach which favors protecting schools from increased civil liability. At best, the current landscape surrounding this question can be described as a split, with most courts finding that the reach of Title IX does not extend to non-students, and others suggesting whether Title IX extends turns on the relationship the victim has to the school. Notably, even circuits which have found that, in theory, a non-student victim may, under certain circumstances have standing, appear to be hesitant to apply that logic to the facts in front of them.

Several recent district court cases have found that non-students do not have standing to sue a university, even if it acts with deliberate indifference towards a complaint regarding a student actively enrolled at the school. In Jane Doe v. Brown University, Jane Doe, a student at a neighboring college, met up with several Brown football players at a bar. They later assaulted her in a dorm at Brown. Jane Doe filed a lawsuit under Title IX, alleging that Brown acted with deliberate indifference towards her when they ultimately refused to investigate the students. The First Circuit affirmed the district court’s dismissal, finding that Jane Doe had no standing under Title IX. Notably, the First Circuit did leave room for the possibility that a non-student, under certain circumstances, could have standing.

In an even more extreme example, in K.T. v. Culver-Stockton College, a high school student was assaulted at a fraternity party during an athletic recruitment visit. The university refused to open an investigation, and the Eight Circuit affirmed the universities choice, finding that K.T. had no standing because she was not a student at the time of the assault. The court concluded that it was immaterial that K.T. was on campus at the request of the university athletics department. It left no room for a finding that, under certain circumstances, a non-student may have standing.

Legal Reasoning in Jane Doe & T.

Both K.T. and Brown considered a multitude of factors in arriving at their shared conclusion that a non-student-victim did not have standing under Title IX. In K.T., the court refused to interpret the “any person” language in Title IX to include non-students, essentially insisting that the plain text of Title IX makes clear that Title IX was meant only to protect students from schools which are deliberately indifferent to harassment. The K.T. court also emphasized that because K.T. did not attend the university, any university mistreatment towards her would not have the “systemic effect on education programs or activities” which Title IX’s private right of action requires. Lastly, the court found that, at the time the case was heard, no judicial precedent supported the argument that non-students should be protected from a university’s deliberate indifference towards them under Title IX.

The District Court in Brown, in coming to the same conclusion, made several additional points, while also reinforcing select arguments made in K.T.. For example, the court cited to K.T., displaying their apparent support for the argument that university mistreatment towards a non-student victim would not have the “systemic effect on education programs or activities” which Title IX’s private right of action requires. The Brown court also discussed the legislative intent behind Title IX, concluding that there was evidence that one of the congressional sponsors of Title IX intended to limit Title IX protections only to students. Seeing the limitations to this rather singular argument, the Brown court recognized that statements of one legislator made during debate are not controlling. Nonetheless, it argued that such assertions gave, “an authoritative guide to the statute’s construction.” Interestingly the courts apparent concern in looking to “authoritative guides” on Title IX stopped there, as evidenced by the total of lack of consideration of OCR guidance. Interestingly, both courts also considered that an “expansion” of Title IX’s reach could open the floodgates to increased liability for schools which was, in their view, inconsistent with the intent behind Title IX.

Applying Hall Reasoning to Brown and T: Arguments Addressed by Hall

While Hall does not address every point made in Brown and K.T., it does provide ED with several counter arguments to much of the anti-expansion reasoning discussed above. Through its discussion of judicial precedent, the intent behind Title IX, and the potential for increased liability under Title IX, Hall provides ED, should it want it, with rational arguments which support expanding standing to non-student victims. What follows is a brief discussion of what those arguments could look like.

Judicial Precedent

While K.T. proclaims that there is no judicial precedent that supports the argument that non-students should be able to hold universities accountable under Title IX, Hall arrives at a completely different conclusion. While the Third Circuit conceded that the Supreme Court case, Davis v. Monroe County Bd. of Ed., concerned only deliberate indifference to student-on-student harassment, it emphasized that the Court’s holding was not based on the classification of the harasser as a student. Instead, it found that the Court’s focus was:

…on whether the funding recipient had control over the harasser and the context of the harassment since the funding recipient can only ‘subject’ students to discrimination under Title IX if it has control over the harasser and remains deliberately indifferent to the harasser’s actions.

Applying this reading of Davis to a non-student-victim student-assailant context, ED could argue that, if the student is an assailant, the university has control over them, and thus should not be able to exhibit deliberate indifference to harassment perpetuated by them. In other words, while the K.T. court maintains that there is no judicial precedent that supports the argument that non-students should be able to hold universities accountable under Title IX, ED could point to Hall, which offers an interpretation of a Supreme Court case which directly supports the opposite conclusion.

Intent Behind Title IX

Hall also contemplates the intent behind Title IX, implicitly recognizing the scope of Title IX has extended far beyond what the original drafters likely imagined. While the Brown court, after analyzing only one legislator’s intent, stopped short of considering other “authoritative guides” related to Title IX, Hall, like many other courts contemplating similar questions, looked to OCR guidance. ED could argue that, applying Hall’s more robust approach to analyzing the intent behind Title IX, OCR has, at times, recognized that Title IX is meant to protect more than just students.

Applying Hall’s approach to analyzing the intent behind Title IX, ED could also point to a 2014 Question and Answer document, which, as Hannah Brenner in A Title IX Conundrum: Are Campus Visitors Protected from Sexual Assault explains, conceded that even in a situation wherein a school’s ability to take direct action against a perpetrator may be limited, “the school should still take steps to provide appropriate remedies for the complaint, and, where appropriate, the broader school population.” Brenner argues, as could ED, that this OCR guidance signals that Title IX is meant to protect the “broader student population.” Thus, ED could, in applying Hall and advocating for an expansion of the scope of Title IX, assert that the intent of Title IX, as revealed by OCR, is to keep the campus population, not just the individual who was directly affected by a student-assailant.

Increased Liability

Lastly, the Hall court directly addressed concerns raised in Brown and K.T. that an “expansion” of Title IX’s reach could subject universities to unwarranted increased liability. While the Third Circuit acknowledged that this is a valid policy concern, the court swiftly addressed this issue. It emphasized that, to be liable under Title IX, the complainant must show that the university had,“substantial control over both the harasser and the context in which the known harassment occurs” and that the university, having knowledge of the complaint, respond in a way that is “clearly unreasonable.”

Following in Hall’s footsteps, ED could reiterate the high bar needed to establish deliberate indifference under Title IX, illustrating the rarity of these cases generally and especially in the context of a non-student victim.

Though the Hall court did not contemplate any additional policy concerns, I would be remise if I did not briefly suggest another policy argument that ED could make. In theory, the United States government has a vested interest in raising healthy, educated, functioning members of American society. Thus, it is hard to imagine why we would not want a university, a place where we send millions of vulnerable young people who are about to become leaders and workers in American society, to be held liable if: (1) a university had substantial control over a harasser, (2) it had substantial control over the context in which the harassment occurred, (3) it had knowledge of the complaint, and (4) it nonetheless responded in a way that was “clearly unreasonable.”  At the risk of being repetitive, when we talk about deliberate indifference, we are talking about liability for schools who essentially ignore or grossly mishandle cases related to sexual assault. Knowing the harm grossly mishandling these types of cases causes students, and yet allowing universities to continue without repercussions on a technicality related to the status of the student, is antithetical to the purpose of providing education to Americans in the first place.

Arguments Not Addressed by Hall

Admittedly, Hall does not provide a reply to all of the arguments in K.T. and Brown. Most notably, Hall does not interpret the plain language of Title IX, nor does it discuss the argument that deliberate indifference to an assault carried out by a student-respondent would lack the pervasive effect on the educational programs that Title IX requires. While Hall may not address these issues, it is not a stretch to suggest that, if ED wanted to, they could.

Statutory Interpretation

Though not discussed in Hall, Title IX is written broadly:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. (Emphasis added).

The plain language of Title IX does not prevent an expansion of the scope of Title IX. Moreover, at least one district court, concluded that if the legislature wanted to limit the protections under Title IX to only students, they could have simply written “no student” instead of “no person.” Pointing to this district court case and the plain language of Title IX ED could argue that the language of Title IX indicates that non-students should be able to bring claims of deliberate indifference under Title IX.

Pervasive Effect on Educational Programs

Moreover, though likewise not considered in Hall, the argument offered in K.T. and later adopted by Brown, that because a victim is not a student, deliberate indifference to an assault carried out by a student-respondent would not have a pervasive effect on the educational programs that Title IX is meant to prevent is, at best, questionable. At its’ worst, this view represents a gross misunderstanding of how the mishandling of any sexual assault on campus, regardless of whether the victim was a student, affects students. Particularly women identifying and queer students, who are, for all intents and purposes, being asked to attend universities that are on notice that one of their students may be harassing or assaulting people on campus and yet choosing to do nothing under the guise that the victim is not a student. Hannah Brenner summarized this issue best when she wrote:

If the promotion of safe campus communities is a priority…it seems irrelevant, discriminatory, and at odds with Title IX to distinguish among the “kind” of victim who is entitled to protection. After all, when sexual violence is allowed to proliferate on campus, the entire community of students, faculty, and staff is affected.

ED could make a similar argument that, when sexual violence is allowed to go unchecked, there is the pervasive effect on educational programs that Title IX requires, no matter the status of the complainant.

Conclusion

All of this is to say, there are arguments, many of which are rooted in recent case law, which support expanding the private right of action under Title IX to non-students. With ED, through their newly proposed definition of complainant, potentially sowing the seeds for supporting an expansion of Title IX’s private right of action, Hall seems like a gift. An appellate level case coming as ED could be gearing up to issue further guidance which directly addresses the question of Title IX’s private right of action and non-student complaints.

ED has shown, through many of the changes made in their newly proposed Title IX regulations, that they are truly committed to revamping Title IX in the name of two of its true purposes: promoting gender equity and protecting students from gender-based violence. Hopefully, ED will recognize the importance of Hall, as well as the value of holding schools accountable when they ignore the presence of known student-assailants on a technicality.

Maddie Xilas is a student at Loyola University Chicago School of Law and wrote this blog post for the Education Law Practicum. 

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The Mahanoy Decision and a Lost Opportunity for a Clear Ruling on Cyberbullying by Isabella Winkler

Posted on August 9, 2022 by Miranda Johnson

Any former high school student remembers the drama of varsity athletics, whether you were an athlete or not. Filling the limited spots on the varsity team meant feelings were hurt, hearts broken, and dreams crushed.

Brandi Levy, the underage plaintiff in Mahanoy Area School District v. B.L. (2021), experienced this firsthand when she was rejected a spot on the Mahanoy Area High School varsity cheer team, and instead relegated to junior varsity. She was also denied her preferred softball position during tryouts for a private team. Like many kids her age, she turned to Snapchat to air her frustrations. While off campus, Levy posted a picture of herself and her friend raising their middle fingers with the caption “F— school f— softball f— cheer f— everything.”

Levy’s problems soon got even bigger. Other members of the cheerleading squad viewed the story and brought it to their coach’s attention. Levy was subsequently suspended from the junior varsity team. In response, she and her parents filed suit against the school district.

Social media fosters candid off-campus speech

Photo by Neelabh Raj on Unsplash

Since 2016, Snapchat has been the most popular social media platform among teenagers. The platform is particularly appealing to teens because the messages disappear, making it well liked among a demographic that likely wishes to maintain privacy from their parents. It is not surprising that teenagers would find it a safe space to be crude and candid among their private circle of friends. But as the Supreme Court decided in Levy’s case, the privacy that students take for granted does not come with complete immunity from school discipline, even if they are off campus.

Defining “on-campus” in an increasingly digital world

 The Supreme Court decided that the school’s interest in punishing Levy for her speech did not overcome her First Amendment right to free speech. The school’s interest was weakened because Levy posted from a location off-campus and after school hours. The court also found that there was no substantial disruption to school activity to satisfy the test that the Supreme Court created in Tinker v. Des Moines (1969)

But the Court’s decision in Mahanoy was narrow, leaving a window of opportunity for a public school to discipline students for off-campus speech under certain circumstances. The decision outlines why the school cannot punish Levy’s speech – she was off campus, using her personal cell phone, and transmitting the Snapchat story to a private circle of friends. But still murky are the circumstances when a school can punish off-campus speech.

The Court had the opportunity to enumerate instances of off-campus speech that are punishable by schools but stopped short of doing so, citing the advent of computer-based learning as a reason for their hesitation. It also reasons that parents are more fit than school administrators to control their children’s off-campus speech.

In an increasingly digital world, the lines are blurred between on- and off-campus. For a significant period during the COVID-19 pandemic, “on-campus” very well might have meant a student’s dining room table. During the pandemic, the students’ lives became even more online, with no way to communicate other than through their phones. Without students murmuring and gossiping throughout the halls, the level of disruption caused by a social media post would be difficult to gauge.

Schools’ ability to punish off-campus cyberbullying

Photo by Annie Spratt on Unsplash

One issue left to be decided is the extent to which Mahanoy applies to cyberbullying. Levy’s speech was relatively mild. It was not directed at anyone in particular, nor did it cause substantial disruption at school. But that is not always the case. A 2019 study found that 15.7% of high school students reported being cyberbullied in the 12 months prior. Behind the safety of a phone screen, kids feel more comfortable saying things they may not say to somebody in person, creating a hotbed for bullying.

The Court chose not to decide what kinds of off-campus speech for which schools can punish students. It only decided that the Constitution does not entirely prohibit the punishment. In doing so, it avoided ruling on whether cyberbullying is punishable. Therefore, the Tinker standard still controls — if an instance of cyberbullying does not materially disrupt classwork, the victim cannot rely on the school to stop the offending speech.

Not every instance of cyberbullying will be found to materially disrupt classwork. A single student being cyberbullied might experience a social emotional response that materially disrupts their own life and learning, but that might not be enough to satisfy the demanding Tinker standard. Thus, victims of cyberbullying that takes place off-campus and outside of school hours cannot necessarily rely on their school to take measures to stop their harassment.

The Court waived the opportunity to determine once and for all whether schools can use disciplinary tools to protect victims of cyberbullying. The Tinker standard is hard to meet in an increasingly online world – substantial and material disruption to classwork is difficult to gauge if students are not actually in class. And as students are expected to do more and more schoolwork after school hours in online classrooms, the substantial disruption may be taking place inside of the home instead of in the physical classroom. Leaving the students and their parents to hash out issues themselves will produce inconsistent results – not every parent is willing to believe that their child is a bully and may hesitate to intervene.

Schools are equipped with staff, such as social workers and school counselors, who are trained to handle conflict between students outside of the sensitive family dynamic. Students spend most of their days with each other at the school, whether physically or virtually. School officials may be more conscious of the on-campus conflicts that lead to off-campus cyberbullying, making them better suited to handle the issue from their close perspective. But, without appropriate guidance from the Court as to what they can and cannot do to discipline students, administrators may be discouraged from solving the problem at all. And while we wait for an unequivocal ruling from the Court, victims of cyberbullying will continue to suffer.

Isabella Winkler wrote this blog post as part of the Education Law and Policy course. 

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Don’t Say Gay Bills are Disastrous for Teachers & Students by Aaron Dean

Posted on August 9, 2022 by Miranda Johnson

Elementary school student Kellan’s family looks a little different from the average family living in Sarasota, Florida and he’s used to fielding invasive questions from his classmates. Kellan has two dads, a concept that can be puzzling for the curious children at Kellan’s elementary school. In fact, Kellan had to address so many questions about whether or not he had a mother, that instead of explaining he has two dads and no mom he simply lied to his classmates and told them that his mother had died.

Letschert and Price believed that it should not be their son’s responsibility to explain one of many ways in which a family can be diverse to his classmates. Letschert and Price met with Kellan’s teacher, shared their concerns, and recommended a children’s book about diverse families. After reading the book to Kellan’s class, the questions died down because his classmates understood that not all families look alike.

Photo by Katie Rainbow on Unsplash

In July 2022, Florida’s Parental Rights in Education law goes into effect. This law, commonly referred to as a “Don’t Say Gay” law, is one of many anti-LGBTQ+ laws introduced in 2022. Among other things, Florida’s Parental Rights in Education law restricts “[c]lassroom instruction by school personnel or third parties on sexual orientation or gender identity” in kindergarten through third grade classes or “in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.” Further, if a parent discovers that their child’s teacher has violated this statute, the parent has the right under the Florida law to sue their school district for damages and attorney fees. Tying violations to these harsh financial consequences further incentivizes school districts to discipline teachers who disobey the broad mandates of the law.

Florida’s Parental Rights in Education law is just one example of countless attempts by state legislators to push a broad political agenda in classrooms across the country.  Legislators throughout the country are voting on bills that bar transgender students from participating in sports and limit teachers’ ability to discuss the mere existence of LGBTQ+ people. Indeed as of June 2022, at least nineteen state legislatures have seen bills introduced that specifically seek to intervene in school curriculum and teaching relating to diversity and LGBTQ+ issues.

These bills place a unique, heavy burden on teachers who identify as LGBTQ+. The American Federation of Teachers has called these “Don’t Say Gay” bills an “assault” on students and teachers. Since the passage of the Parental Rights in Education law in Florida, several LGBTQ+ teachers have preemptively resigned. These resignations come amid a much larger teacher shortage hitting school districts throughout the country.

LGBTQ+ teachers’ resignations are not the only threat to teacher retention in Florida caused by the passage of the Parental Rights in Education law. The law requires the state’s board of education to promulgate rules providing disciplinary consequences for educators who violate the exceptionally broad restriction on merely discussing LGBTQ+ content. In light of these restrictions, it’s conceivable, if not probable, that teachers will have to put themselves back into the closet at work. This presents a particularly difficult situation for LGBTQ+-identifying elementary educators who may have to hide certain aspects of their lives (e.g., their spouse’s gender identity), a problem non-LGBTQ+ teachers will not have to face. Teachers like Kellan’s who spend their days educating a class of inquisitive, curious students will be forced to be circumspect in addressing their classrooms.

Photo by Denin Lawley on Upsplash

Bills like Florida’s Parental Rights in Education law and similar laws targeting the teaching of what zealous legislators and broadcasters call “critical race theory” are harmful to the student-teacher relationship. Teachers should be encouraged to create a safe space for their students to learn about the many ways our society is diverse and foster a learning environment that celebrates that diversity.

Many sources have noted the adverse impact laws like Florida’s Parental Rights in Education law will have on LGBTQ+ students, a group of students that is already four times more likely to attempt suicide than their peers. While the rhetoric surrounding these bills alone is damaging to LGBTQ+ people’s mental health, the passage of these bills substantially impacts LGBTQ+ students’ mental health and diminishes what little feeling of safety remains in their schools.

Teachers play a critical role in helping children develop important social skills and bridging the divides that arise in the proverbial sandbox. Elementary educators are needed to encourage cooperation and kindness just as badly as they’re needed to teach reading or math. Beginning this month, Kellan’s elementary school teacher will not be able to read the children’s book about LGBTQ+ families to her class. Among other things, this means children in Kellan’s position will suffer in an already struggling education system required to devote more resources to policing educators than empowering them.

Aaron Dean is a student at Loyola University Chicago School of Law and wrote this blog as a part of the Education Law Practicum. 

Posted in Educational equity, Educational policy, LGBTQ+ | Tagged | Comments Off on Don’t Say Gay Bills are Disastrous for Teachers & Students by Aaron Dean

Critical Race Theory and Higher Education’s Newest Battle Over Tenure and Academic Freedom by Elizabeth Becker

Posted on August 9, 2022 by Miranda Johnson

Since January of 2021, state legislatures have proposed over 100 bills limiting teaching in classrooms. These topics include race, American history, gender identity, sexual orientation, politics, and Critical Race Theory (understanding the social constructs of race and the systemic barriers in American society).

PEN America, a non-profit organization dedicated to free speech, tracks this type of legislation.

  • In South Carolina, a proposed bill prohibits teachers from discussing any topic that creates “discomfort, guilt or anguish” based on a political belief including topics like racism and antisemitism.
  • In North Dakota, a ban on Critical Race Theory has confined teaching racism as an individual bias or prejudice, rather than a systemic problem in American society.
  • In Georgia, four proposed bills would ban the teaching of concepts that cause “guilt, anguish, or any other form of psychological distress” based on a student’s race, sex, or identity.

While many of these bills restrict K-12 education, recently state legislatures expanded the scope into higher education causing new concerns for academic freedom and the protection of tenured faculty positions.

  • In Texas, Lieutenant Governor Dan Patrick stated in a news conference that those who teach Critical Race Theory at public institutions of higher education would have a prima facie good cause claim to have tenure taken away. This announcement came after the University of Texas at Austin’s Faculty Council passed a resolution on Monday, February 14, 2022, rejecting any attempts of external forces to restrict or dictate the faculty curriculum, including topics related to race and social justice.
  • In Florida, the state legislature approved a bill that allows the Board of Governors to call for post-tenure review every five years.

What is academic freedom?

The concept of academic freedom, formulated in Germany during the eighteenth century, is encompassed in two words – Lernfreiheit and Lehrfreiheit.

  • Lernfreiheit – “freedom to learn” – the freedom of a student to learn unrestricted in the ability to read, study, and gain knowledge.
  • Lehrfreiheit – “freedom to teach” – the freedom of a professor to do independent research and to teach those findings to students without fear of retribution from a higher authority.

In the American context, the Global Colloquium of University Presidents defined academic freedom in the “Statement on Academic Freedom” as:

The activities of preserving, pursuing, disseminating, and creating knowledge and understanding require societies to respect the autonomy of universities, of the scholars who research and teach in them, and of the students who come to them to prepare for lives as knowledgeable citizens and capable leaders. The autonomy of universities is the guarantor of academic freedom in the performance of scholars’ professional duties.

Furthermore, the American Association of University Professors (AAUP) published the main concepts of academic freedom as the ability for a teacher to (1) have freedom in research and the freedom to publish the results of that research; (2) the freedom to discuss those findings in the classroom, and (3) to speak and write like any other citizen free from institutional censorship or discipline.

In the legal framework, academic freedom has also been explained by the Supreme Court to allow institutions freedom from government intrusion. In Sweezy v. New Hampshire, the Court said:

The essentiality of freedom in the community of American universities is almost self-evident…To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation…

Ten years later, the Court elaborated further in Keyishian v. Board of Regents of Univ. of N.Y. on academic freedom and a commitment to safeguarding it by stating “[academic] freedom is, therefore, a specific concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

How does tenure protect academic freedom?

Tenure is a form of employment security where institutions of higher education can give the permanent status of a job to a professor. The only way that a professor can be fired is with proper cause and through proper procedures. In this way, tenure provides professors with a guarantee of academic freedom since they cannot be fired for the research or ideas that they bring to the classroom.

Tenure has garnered criticism from politicians who use it as a “punching bag”, blaming it as the reason that liberalism has gone unchecked in higher education. Tenure has also been criticized because of its secretive and selective process that creates limited opportunities and historically has served as a barrier to promoting diversity in academia. However, despite these failures, supporters of tenure point to the intersection with academic freedom to allow professors to discuss topics “such as race, religion, or gender – that might offend someone”.

The call to end tenure has raised concerns that an institution will face challenges recruiting knowledgeable professionals to the campus and keeping the professionals that are currently present without the promise and security of tenure. Jay Hartzell, president of The University of Texas at Austin, noted in a message to the campus on Monday, February 21, 2022:

Removing tenure would not only cripple Texas’ ability to recruit and retain great faculty members; it would also hurt Texas students, who would not be able to stay in the state, knowing that they will be learning from the very best in the country… It would also increase the risk of universities across the state making bad decisions for the wrong reasons. Future administrators might make annual retention decisions based on whether they or others did or didn’t like a faculty member’s current research agenda, rather than whether the quality of that research was excellent and held promise to have a positive impact on society in future years.

The University of Texas is not the first institution to deal with government intrusion in the tenure process. In 2015, the University of Wisconsin had to deal with Governor Scott Walker weakening tenure protections. While the University of Wisconsin was able to sustain faculty through the time, they paid costly incentives to keep their top researchers at the institution.

In contrast, Chatham University has decided to make the switch from renewable contracts back to the tenure process. They found that younger faculty would use their positions at Chatham to gain experience to become better candidates for tenure-track positions at other institutions. The switch to a tenure-track process supplies the institution with further recruitment options for candidates who would have never considered the institution without the promise of tenure.

Why do academic freedom and tenure matter in the current climate of state legislation?

Ideally, institutions of higher education provide a place where there can be open discussion and debate, being that “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas’” (Healy v. James). This open “marketplace” depends on students and faculty engaging in conversation without fear of punishment or reprisal.

Tenure and academic freedom allow faculty to express views that might be unpopular with the public at large or disfavored by university administrators. They also enable the continued passing of knowledge, challenging of ideas, and pursuit of research. These new legislative proposals, instead, suggest faculty should second guess how they teach because it may challenge students’ thoughts. However, that challenging of thoughts and ideas is exactly what should be happening in the classroom and on campus. Tenure protections and academic freedom, including the control of curriculum, are bright lines set in case of precedent by the Supreme Court.

The current climate of legislative activism is unjustifiably motivated by ideology. As Jeffrey G. Blodgett, president of the Texas Conference of the American Association of University Professors noted, “Rather than being politicized, the concept of tenure should be embraced by those who truly believe in free speech. While we might not always like someone else’s opinion, we should all stand up for their right to express that opinion.”

There is already a chilling effect from these proposed statutes in education. Professors are already expressing their concerns and doubts as to how much longer teaching particular topics can occur. This couples with a recent opinion essay in the New York Times arguing that students are self-censoring sparking continued discourse for institutional commitment to freedom of expression and the professor’s role to create classroom dialogue with a variety of opinions. This is not just about red or blue states, but instead about how institutions of higher education respond to partisan pressure from outside forces – choosing to protect faculty and the rights of tenure and academic freedom or succumbing to the pressure. This fight, which has already started on some campuses, must not only be championed by higher education administrators but also carried forth to the halls of legislative offices and courthouses.

Elizabeth Becker is a law student at Loyola University Chicago School of Law with experience in higher education administration and wrote this blog post as part of the Education Law Practicum.

Posted in critical race theory, Educational policy, First Amendment | Comments Off on Critical Race Theory and Higher Education’s Newest Battle Over Tenure and Academic Freedom by Elizabeth Becker