Published Online: May 31, 2016
Published in Print: June 1, 2016, as Blogs of the Week

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| NEWS | The School Law Blog

Courts Often Don't Hold Districts Liable for Bullying

Students who have been bullied in school long have had difficulty holding districts responsible for the acts of other students. A decision last week by a federal appeals court extends that streak, and in stark terms.

A Massachusetts middle school student identified as R.M. was 12 when he faced alleged bullying by students at school in 2011. Court papers say one day R.M. was repeatedly kicked and punched by students belonging to "the Kool-Aid Club" gang.

There is some evidence that R.M. had agreed to the beating for initiation to the club. But after he discussed the situation with the principal, he was bullied by the club more, because he had gotten them into trouble. (R.M. himself was disciplined for "delaying the investigation.")

The suit alleges acts by fellow students of "table-topping"—in which one bully pushes the victim backward over another who is on all fours behind the victim—as well as "pantsing," in which the victim's pants are quickly pulled down from behind.

The court papers suggest that administrators at Lexington Middle School in Lexington, Mass., at times seemed to take seriously the complaints of R.M. and his mother, but that their responses to the bullying were ineffective. The suit also alleges school officials asked Lexington police to go to R.M.'s house to enforce the compulsory-attendance law when he refused to go to school because of panic attacks over being bullied.

His mother sued, arguing, among other claims, that the actions of the district and its officials fell within the "state-created danger" theory of liability. That theory has been recognized by the U.S. Supreme Court for situations in which government acts create or worsen danger to an individual.

The suit contends the district "turned a blind eye" to the bullying and took affirmative steps to disregard R.M.'s complaints.

A federal district court dismissed the lawsuit, and in a May 23 decision in Morgan v. Town of Lexington, a three-judge appellate panel unanimously ruled for the defendants as well. It cited a 2005 case in which the court rejected any government liability in the case of a 15-year-old girl who had witnessed a murder and was told she would be provided police protection if she testified in the case.

"She agreed; she was not protected; and she was murdered," the appeals court said. "We explained that it is not enough to allege something shockedthe conscience. The plaintiff had to show that governmental conduct caused the deprivation of the right. We said: The purpose of the due process clause is to protect the people from the state, not to ensure that the state protects them from each other."

The court also rejected the family's state-created-danger claim.

–Mark Walsh


| NEWS | Curriculum Matters

Gates Chief Acknowledges Common-Core Mistakes

In a letter posted last week on the Bill & Melinda Gates Foundation website, CEO Sue Desmond-Hellmann acknowledged that the group had made some miscalculations regarding implementation of the Common Core State Standards.

The Gates Foundation has backed the common standards, which more than 40 states are now using, since their conception. (The foundation helps support Education Week's coverage of college- and career-ready standards.) Over the past seven years, the math and reading standards have faced political backlash as well as objections from educators who disagree with their content. Teachers around the country also complained that they lacked the instructional materials and professional development necessary to use the standards effectively in their classrooms.

The uproar has been most fervent in places where student scores on the common-core tests were linked to teachers' evaluations.

In the letter, Desmond-Hellmann wrote: "Unfortunately, our foundation underestimated the level of resources and support required for our public education systems to be well-equipped to implement the standards. We missed an early opportunity to sufficiently engage educators—particularly teachers—but also parents and communities so that the benefits of the standards could take flight from the beginning."

The letter goes on to say that all teachers need access to high-quality materials. "But far too many districts report that identifying or developing common-core-aligned materials is a challenge, meaning that teachers spend their time adapting or creating curriculum, developing lessons, and searching for supplemental materials," Desmond-Hellmann wrote.

The foundation is now "doubling down on our efforts to make sure teachers have what they need to make the most of their unique capabilities," she said.

–Liana Heitin


| NEWS | Politics K-12

Jeb Bush Once Again to Take Reins At Advocacy Group He Founded

Florida Gov. Jeb Bush would do after he got out of the 2016 Republican presidential contest? Wonder no more—he’s going back to his roots.

The Foundation for Excellence in Education said last week that Bush, who dropped out of the presidential race in February after a poor showing in the early state primary elections, is returning to the foundation as its chairman. He’s taking over from former U.S. Secretary of State Condoleezza Rice, who stepped in for Bush early in 2015.

At the start of that year, Bush announced he was seriously exploring a presidential bid and was therefore ending his leadership of the foundation. Despite his background in education, Bush (as well as other candidates) didn’t raise K-12 education much during the campaign.

Rice will stick around as a member of the foundation’s board of directors.

“Too many children right now are failed by a deeply flawed bureaucratic system, but I’m optimistic about the future because I’ve seen the great results produced by states across the country,” Bush said in a statement released by the foundation. “It is an honor to rejoin ExcelinEd as we continue to support states in bringing choice, innovation and accountability to the classroom. I am thankful to Dr. Rice and this exceptional board for their leadership over the past year.”

The foundation, which Bush started in 2008 after serving two terms as Florida’s governor, tries to build state-level support for expanded school choice programs, accountability systems that rely heavily on student performance on test scores, and early-literacy initiatives. The foundation also had an affiliate, Chiefs for Change, a group of state superintendents who also pushed for these policies and others, although that group has since ended its affiliation with the foundation and made other changes. The Foundation for Excellence in Education also has been criticized for its influence on state chiefs and its links to private K-12 companies.

–Andrew Ujifusa


| NEWS | Curriculum Matters

California, Texas Debate Portrayal Of Ethnic Groups in Curriculum

The nation’s two largest states are embroiled in debates over the portrayal of ethnic groups in state history and curricular standards.

In California, where two-thirds of students are Latino or Asian, the state’s Instructional Quality Commission, which sets curriculum frameworks for schools, voted May 19 to adopt a new history curriculum for middle schoolers that split the difference between the concerns of several groups of Hindu Americans.

One group, led by the Hindu American Foundation, was concerned that the proposed framework used the term “South Asia” to refer to the civilizations that came out of the Indus River Valley, rather than India, the name of the most prominent of those civilizations. The group also lobbied for the curriculum to exclude teachings about the caste system, which they said led to misunderstandings about Indian culture and to some students being taunted or bullied in schools.

That group was countered by a group of South Asian scholars and activists who argued that excluding teachings about the caste system is tantamount to whitewashing the subcontinent’s history and the detrimental impact of that system, especially on Dalits, the lowest caste.

The California board decided May 19 to refer to India rather than South Asia, but to retain teachings about the caste system.

Meanwhile, in Texas, a new textbook proposed for use in that state has drawn fire for its representation of Mexican-Americans. The Associated Press reports that the book describes Mexican-Americans as having “adopted a revolutionary narrative that opposed Western civilization and wanted to destroy this society.”

The textbooks are on the agenda after a group of activists persuaded the state’s education commission to include Mexican-American studies in textbooks. Texans have until September to submit comments about the textbook.

–Jaclyn Zubrzycki


| NEWS | State EdWatch

Arizona School Districts Eye Ways To Use New Voter-Approved Aid

Many school district leaders in Arizona say they’re planning to use a huge infusion of funding to provide teachers with pay raises, according to the Associated Press, now that voters have approved a measure to allow districts to tap into a land trust for an extra $2.1 billion during the next decade.

Proposition 123, which passed last month with 51 percent of the vote, will allow the legislature to increase per-pupil spending by about $300. Districts will get an extra $300 million next school year on top of the $4 billion education budget Republican Gov. Doug Ducey approved in May.

Despite that, education advocates point out that Arizona will still have one of the lowest per-pupil levels of education spending in the country at $3,900.

The measure comes from a years-long legal battle between districts and the state legislature over whether Arizona’s school funding formula meets minimal constitutional standards. Tapping into the state’s land trust, a sort of education savings account, was a compromise that Ducey, legislators, and some school officials rallied behind.

–Daarel Burnette II

Vol. 35, Issue 32, Pages 10,25

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