Overview
At the end of
each year the last issue of the CEPI Education Law Newsletter
is devoted to predicting potential legal and policy issue areas
to watch and be ready for in the next school year. While the
summer months give school policy-makers, administrators,
classroom teachers, and other personnel time to relax and
reflect back on their many accomplishments of the past school
year, the summer months also provide an excellent opportunity to
plan for next year.
Issues to Watch
In an effort
to help educational policy-makers and administrators as they
attempt to forecast and plan for problems and issues that may
either carry over from last year or spring to life next year, I
have identified and selected three topics for discussion. As the
2005 summer months move forward toward the beginning of the
2005-2006 school year, the following potential legal and policy
issue producers are worth watching.
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Continuing problems and ramifications associated with the
implementation of No Child Left Behind Act of 2001 (NCLB)
requirements. As we know, the general purpose of NCLB is
“…to ensure that all children have a fair, equal, and
significant opportunity to obtain a high quality education
and reach, at a minimum, proficiency on challenging state
academic achievement standards and academic assessments.”
Suffice it to say, however, while no person can disagree
with such an overall goal, the “devil is in the details.”
As of this writing, some states
have already or are in the process of enacting strong
legislative resolutions challenging the federal government’s
policy-making and regulatory authority under NCLB (e.g.,
Maine and Utah). Other states (e.g., Connecticut) are in
court challenging funding and other fiscal ramifications of NCLB.
Other states (e.g., Virginia) are seeking significant
waivers from specific NCLB requirements that they say
unreasonably punish them and hinder progress under their own,
rigorous statewide standards.
Also worth watching is the growing
battle in the courts over the question of whether or not parents
can sue a local public school system for failure to adequately
implement to requirements of NCLB. At this point, while the
question remains unanswered, courts are leaning toward holding
that “parents do not have a private right of action under NCLB,”
because the specific language of the statute does not provide
for this. See, or example, Association of Community
Organizations for Reform v City of New York Department of
Education (S.D.N.Y. 2003) where plaintiffs unsuccessfully
sued a local school system for failing to implement the mandates
of NCLB.
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Resurgence of school finance issues testing the meaning and
limits of a state’s constitutional mandate and resulting
fiscal obligations to all children of school age. In
Kansas, for example, the legislature has a duty to provide
“a suitable education” to every child. In Montana the
legislature has a duty to provide a “free, quality
education” to all school children. In Nebraska the
legislature shall provide for the “free instruction in the
common schools of the state of all persons between the ages
of five and twenty-one years.” In Virginia “The General
Assembly shall provide for a system of free public
elementary and secondary schools for all children of school
age throughout the Commonwealth, and seek to ensure that an
educational program of high quality is established and
continually maintained.”
Once again, as in years past,
state public school finance issues already have made there way
into court. While some well-known court decisions from the past
have had new life breathed into them (e.g., Rose v
Council for Better Education, Inc. [Ky. 1989]), more recent
cases have linked “high stakes testing” requirements (as a
precondition of promotion from grade-to-grade, as well as for
graduation from high school), to the fiscal obligation of
a state (i.e., basic level of support) to provide all
children in public schools (where ever they live and whatever
their socio-economic condition) with access to a “sound and
basic education.”
A good example of a case on point
is Campaign for Fiscal Equity, Inc. v New York (N.Y.
2003), where the court focused on linking state support levels
to literacy, calculating, and verbal skills; as well as to
providing adequately trained teachers, up-to-date curricula,
adequate classrooms and other physical facilities in local
school systems. However, the court made it clear that state
education officials should not be blamed for the poor
performance of students. Rather, said the court, since many
students in local school systems arrive at school with
backgrounds and problems that put them “at risk,” states should
be “praised for success.”
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Reauthorization and changes in the Individuals with
Disabilities
Educational Act. In 2004, the United States
Congress reauthorized and retitled the Individuals with
Disabilities Education Act (IDEA). Now called the
Individuals with Disabilities Education Improvement
Act (IDEIA), there are several new features in the law.
Of all the challenges inherent in the reauthorized IDEIA,
one important aspect in particular deals with burden of
proof. This is of critical importance in cases were
school officials and the parents of a student with
educational disabilities are at odds over whether or not a
student’s individualized educational program and related
services are appropriate to and meet that child’s specific
needs.
A significant case (out of
Maryland) to watch is Shaffer v Weist (4th
Cir. 2004). Because IDEA (1997) was silent on the burden of
proof (i.e., specific statutory language was absent),
the United States Court of Appeals for the Fourth Circuit held
the party or parties initiating the proceeding (in this case
parents of the student with educational disabilities and not
school officials) carry the burden of proof. This
case is now before the United States Supreme Court. The National
School Boards Association and other groups are carefully
monitoring the progress of this case.
The reader should also watch for
issues related to the requirements of NCLB coming up against
IDEIA requirements as they: (1) impact on finding and employing
“highly qualified teachers” for students in special education,
and (2) impact on measuring “AYP” (Average Yearly Progress).
Policy Implications
As stated at
the outset, the purpose of this year’s final commentary is to
spot potential issue producers facing local educational
policy-makers and administrators as they plan for the 2005-2006
school year. Realizing that it is not possible to identify and
adequately treat every issue area, this writer selected the
three discussed above. I hope that the information in this
final commentary proves helpful in: (a) revisiting and up-dating
existing policies, (b) crafting new school system policies and
procedures, and (c) developing proactive and practical plans for
immediate implementation (if and when necessary) as the
2005-2006 school year begins.
Resources Cited
Association
of Community Organizations for Reform v New York City, 2003 LW
21471910 (S.D.N.Y. June 30, 2003)
Campaign for
Fiscal Equity, Inc. v New York, 2003 N.Y.Lexis 1678 (N.Y. 2003)
Individuals
With Disabilities Education Act (reauthorized and retitled as
the Individuals With Disabilities Education Improvement Act), 20
U.S.C.A 1400, et seq. 2004
No Child Left
Behind Act of 2001, 20 U.S.C. 6301, et seq. (2002)
Rose v
Council for Better Schools, 790 S.W.2d 186 (Ky. 1989)
Shaffer v
Weist, 377 F.3d 449 (4th Cir. 2004)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
