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| NEWS | On Special Education

NEA President Apologizes For 'Epic Failure' in Speech

Lily Eskelsen García, the president of the National Education Association, last week posted a video and written apology on her blog for an October gala speech in which she mentioned taking care of "chronically 'tarded' and medically annoying" students as part of a teacher's responsibilities.

"Epic failure," García said in her video statement. "In my attempt to be clever and funny, I stepped on a very important word in a phrase, and I created another phrase that I believed was funny, but it was insulting, and I apologize."

In her Oct. 27 speech at an awards gala, García raced through a long list of teachers' activities: "We serve kids a hot meal. We put Band-Aids on boo-boos. We diversify our curriculum instruction to meet the personal individual needs of all of our students—the blind, the hearing-impaired, the physically challenged, the gifted and talented, the chronically 'tarded' and the medically annoying."

Disability-advocacy groups, including the American Association of People with Disabilities and the National Down Syndrome Society, said García's words were insensitive and hurtful. Some parents of children with disabilities called for her to step down.

García said that "tarded" was meant to be "tardy." As for "medically annoying," she said, that was not a reference to students who are ill or medically fragile. "I was talking about that student who, for an example, has an argument with his girlfriend, and now he's having a very bad day, and is doing everything humanly possible to annoy his teacher. The kinds of things that happen in a classroom every day," García said in the video.

"I hope students will learn from my error," she said. "We should all be more careful when we speak, slow down, make sure our points are well-articulated and fully understood. The bottom line for me is, I screwed up, and I apologize. Please judge me by my heart and not by my mistakes."

–Christina A. Samuels


| NEWS | School Law Blog

Court Backs District's Removal Of Ex-Porn Star's Banners

A federal appeals court has upheld a Florida district's decision to remove a math tutor's banners from its campuses after the district learned that the tutor is a former porn star who owns a company that once produced pornography.

The Palm Beach County district authorized banners for "The Happy/Fun Math Tutor" to be displayed outside three schools as part of its business-partnership program. The partners paid up to $650 for the right to display the banners, which had to be in school colors and include a message indicating the school partnership.

The tutor is David Mech, who has a master's degree, is enrolled in a doctoral program, and is certified to teach secondary school math in Florida, according to court papers, which also include a description from a district representative that he is "apparently a very good tutor."

Mech is also a former porn star who went by the name of Dave Pounder, court papers say. He owns Dave Pounder Productions, which produced pornography and shared a mailing address with his tutoring business.

When parents found out about the connection, they complained. The district removed Mech's banners, informing him that the common ownership of the two businesses "creates a situation that is inconsistent with the educational mission of the ... school board and the community values."

Mech sued the district under the First Amendment, among other grounds, and a federal district court held that he had no claim because the district did not act based on the content of his banners.In its ruling last month, the appeals panel held that the banners were government speech, not private speech.

"The banners bear the imprimatur of the schools, and the schools exercise substantial control over the messages that they convey," the court said.

–Mark Walsh


| NEWS | Rules for Engagement

Six States Argue That Title IX Doesn't Apply to Gender Identity

A Virginia district should not be required to allow a student who was born a girl but now identifies as a boy to use the boy's restroom, South Carolina Attorney General Alan Wilson wrote in a legal brief he filed on behalf of leaders from six states last week.

The U.S. Department of Education previously filed a friend-of-the-court brief in the case, arguing that the civil rights protections in Title IX extend to sexual orientation and gender identity.

But the states of Arizona, Mississippi, South Carolina, and West Virginia and the governors of Maine and North Carolina disagree, Wilson wrote. And the Gloucester County district has offered an adequate accommodation by giving the student access to a single-stall restroom, the brief says.

Drafting policies related to transgender students has been challenging for some districts, which struggle with differing interpretations of federal civil rights laws. Most recently, officials with the Education Department's office for civil rights said a district violated a transgender girl's civil rights by denying her unrestricted use of the girls' locker rooms.

But the department is wrong to interpret Title IX so broadly, the brief says. "The 1975 regulation expressly authorizes 'provid[ing] separate toilet, locker room, and shower facilities on the basis of sex,' " it says.

"In 1972, 1975, and today, sex is a biological reality, unlike subjective or cultural constructions of gender or gender identity."

–Evie Blad


| NEWS | School Law Blog

Justice Sonia Sotomayor Joins Board of Group Promoting Civics Education

Serving on the U.S. Supreme Court makes one a member of a pretty exclusive club, and it isn't often that the justices join the boards of other prominent organizations.

But Justice Sonia Sotomayor has done just that—joining the board of iCivics, the educational organization founded in 2009 by retired Justice Sandra Day O'Connor.

The nonprofit organization offers digital games and lesson plans for students and teachers to advance civics education and has more than 100,000 registered teachers. O'Connor, who left the Supreme Court in 2006, launched the effort out of concerns for U.S. students' poor understanding of courts and other government functions, and she has worked tirelessly to promote it.

Sotomayor, who joined the high court in 2009, will be part of a 10-member governing board for iCivics, to help guide the development of its educational content and serve as an ambassador for the organization.

Louise Dubé, the executive director of Washington-based iCivics, said in an interview that Sotomayor contacted her after an April event in which O'Connor was honored for her work on civics education by Justices Ruth Bader Ginsburg, Elena Kagan, and Sotomayor.

Dubé said Sotomayor was "unusually committed to education, to civics, and to using her station in life to bring the message to communities she relates to, especially Latino communities, that law relates to you."

Asked what role she saw Sotomayor taking, Dubé said, "She is primarily going to be a fantastic spokeswoman for iCivics. She is a rock star with students, and we think she will help reach students directly."

Under the Code of Conduct for United States Judges, Sotomayor's role would appear to be permitted. The ethical canons apply directly to lower federal court judges, not members of the Supreme Court. But the justices generally strive to abide by the canons.

–Mark Walsh


| NEWS | Early Years

Pre-K Demand Outstrips Funded Spots in Indiana's Newly Launched Program

After much fanfare about the launch of Indiana's first public preschool program this fall, numbers have emerged showing that the number of funded spots is far outstripped by demand.

Of the 5,000 applicants in Marion County, home of state capital Indianapolis, only 30 percent were offered preschool scholarships, according to The Indianapolis Star. And the acceptance number in Marion County includes the extra children who are covered by an additional $4.2 million in annual funding provided by the city of Indianapolis.

"In Lake County, only 40 percent of those who applied to the state program were accepted. Vanderburgh County had the highest rate of acceptance, but still denied about 35 percent of applicants, state figures show," according to the Associated Press.

Predictions that the program would be too small to serve the number of qualified children have not resulted in additional funding for the program in 2016.

And Republican Gov. Mike Pence decided not to apply for $80 million in federal funding last year to cover additional children, citing concerns that the money would come with too many conditions and requirements. Pence "will wait for results of the state's pre-K pilot program before making any decisions" about growing the state's program, said Stephanie Hodgin, a spokeswoman for the governor, in a statement.

Indiana's $10 million program has come under some fire for refusing to accept 4-year-olds who are not legal U.S. residents.

"It's shortsighted and wrong to deny children educational opportunity from the starting line because of their immigration status—especially children who are clearly here through no fault of their own," U.S. Secretary of Education Arne Duncan said in a September statement.

While state Democrats told the Star that there was enough evidence that preschool worked to justify an immediate expansion, state Republicans urged caution until the results of the program are clear.

–Lillian Mongeau

Vol. 35, Issue 14, Pages 9,16

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