Northwest Education Law Blog : Northwest Education Lawyer & Attorney : Williams Kastner Law Firm : Tacoma, Seattle, Portland

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On August 5, 2010, the Oregon Supreme Court ruled that a teacher who resigned after showing his students a movie clip that contained profanity was entitled to unemployment benefits. Robert McDowell, a first year language arts and drama teacher in Oregon’s Klamath County School District, played a 10 minute clip from the movie “Glengarry Glen Ross” to his senior English class as part of a lesson about language use and misuse. McDowell was placed on administrative leave and was told that termination would be recommended to the school board because he had not obtained approval before showing the profanity-containing clip to his class as required by school district policy. McDowell consulted with a union attorney who told him that there was absolutely no chance that the school board would overrule the termination recommendation, and then resigned and sought unemployment benefits. Benefits were denied, first on the grounds that McDowell was discharged for misconduct, and later on the grounds that he voluntarily left work without good cause. The Oregon Supreme Court reversed, holding that McDowell had good cause to voluntary quit and was, therefore, entitled to unemployment benefits.

As a preliminary matter, the court noted that if McDowell had been fired, he would have been entitled to unemployment benefits because the school district did not tell him about the pre-approval requirement for profanity-containing movies. Thus, showing the movie did not constitute “misconduct” which made McDowell ineligible for benefits.

On the bigger issue of whether McDowell had good cause to voluntarily quit, the court held that he did because termination would have been a “kiss of death” on his teaching career. Since termination would have plagued him in obtaining future employment, McDowell had no reasonable alternative but to quit and a reasonable person in his situation would have voluntarily quit. Accordingly, McDowell had good cause to quit and was entitled to unemployment benefits.
 

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The Oregon State Legislature took one large step toward ending Oregon’s longtime ban on religious dress by public school teachers this week when it passed HB 3686. Current Oregon law prohibits public school teachers from wearing any religious dress while engaged in the performance of duties as a school teacher. If signed into law, HB 3686 would repeal that ban.
According to reports, Oregon Governor Ted Kulongoski has not expressed concerns about the bill as he normally would if he believed it were flawed, but he has not decided whether he will sign the bill into law.

The Oregonian reports that Oregon is one of only three states that presently ban religious dress by public school teachers–a ban which apparently started in 1923 to keep Catholic nuns out of public schools. While there have been no complaints about a teacher’s dress in decades, lawmakers predict litigation will ensue if the ban on religious dress is lifted.

The ban on religious dress by teachers is codified at ORS 342.650.
 

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McColl v. Sequim School District, No. 38372-II (Nov. 9, 2009)

Sequim School District allowed a student in the District’s highly capable program to skip the fifth grade based on a request from the student’s parents. After skipping the fifth grade, the student successfully completed the sixth, seventh and eighth grade coursework and was promoted to the ninth grade for the 2008-2009 school year. At that time, the student was assigned a preliminary estimated graduation date of 2012, four years from the date the student entered the ninth grade.

Plaintiff, the student’s father, objected to the student’s promotion to the ninth grade and the District’s assignment of a 2012 graduation date. Plaintiff requested that the District designate the student as an eighth grader for graduation purposes, so that the student’s estimated graduation date would be 2013, not 2012. The District refused, and plaintiff filed suit, alleging that the assignment of the 2012 graduation date violated the student’s constitutional right to access public schools until age 18 under Wash. Const. art. IX, § 1.

Wash. Const. art. IX, § 1 provides that the state has an affirmative duty to make ample provision for the education of children. The term “children” has been legislatively defined to include all individuals from five to twenty-one years of age.

The superior court granted summary judgment to the District on the grounds that no reasonable person could conclude that the District violated the student’s constitutional right to access public schools until age 18. The Washington Court of Appeals affirmed, holding that the issue was not ripe and that there was no evidence that the District had violated the student’s constitutional right by promoting the student and assigning the 2012 estimated graduation date.

In reaching its decision, the court held that there was no evidence that the District had violated the student’s right by promoting the student to the ninth grade because the promotion was consistent with the District’s promotion and retention policy. The District’s promotion and retention policy provides that students will be promoted to the next grade after successful completion of a year of study at the current grade level, and it allows for retention at a grade only in very limited circumstances. Plaintiff acknowledged that the student successfully completed the eighth grade coursework, and that there was no reason to retain the student in the eight grade based on the student’s coursework. The court, therefore, held that there was no evidence to support plaintiff’s contention that the student was entitled to an eight grade designation or that the District violated the student’s constitutional right by promoting the student to the ninth grade.

The court also held that there was no evidence to support plaintiff’s contention that the student was denied the constitutional right to attend public school until age 18 based on the expected graduation date. In reaching its conclusion, the court recognized that the estimated 2012 graduation date was just that–an estimate of when the student would graduate. There was no evidence that the District intended to force the student to graduate before turning 18, nor that the student would be denied the right to attend school until age 21 in the event that the student was unable to graduate in 2012.

To view the complete Court of Appeals opinion, click here.
 

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Money won't change the fact that 16-year-old Zackery Lystedt may never walk again, could need assistance for the rest of his life and is permanently disabled by injuries that were preventable. Zackery's injuries while playing in a football game for Tahoma Junior High School three years ago led to the passage earlier this year of the nation's most rigorous law protecting young athletes from severe brain injuries. The law requires clearance from a licensed medical professional, which includes certified athletic trainers, before a student-athlete who has sustained a concussion can return to the playing field.

Attorneys for Zackery's family and the school district said they could not disclose the amount of the settlement because both sides had signed a confidentiality agreement. However, the appellate courts have ruled that public entities, such as school districts, must disclose the amount of settlements. A spokesman for the Tahoma School District said the district would respond to a written public-disclosure request seeking the amount of the settlement, which The Times has filed.

Zackery was injured while playing football Oct. 12, 2006, when he suffered a concussion toward the end of the first half of a game. He was twice returned to play and 60 seconds after the game was over, he collapsed. Doctors later would discover he had suffered a traumatic brain injury and he was hemorrhaging. Zackery was in a coma for months and required intensive therapy before he was able to eat on his own or speak. Even now, he remains in a wheelchair. [The Seattle Times]
 

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Citing what it calls a "leadership deficit" in the nation's schools, Harvard University is introducing a doctoral education program aimed at attracting top talent to transform the U.S. education system by shaking up the status quo. The Doctor of Education Leadership, announced Tuesday, is the first new degree to be offered in 74 years by the Harvard Graduate School of Education and comes as American students continue to lag behind their peers worldwide.

The degree is designed for people who want to be top-level managers - such as superintendents of large districts or state education agency heads - and seeks to attract upper-echelon candidates who normally would choose other, more lucrative fields.

"Education is getting better, it's just not getting better fast enough," said Robert Schwartz, the school's academic dean. Harvard acknowledges "a widely shared view that U.S. schools are failing," in a description of its new program. It also blames "a leadership deficit in education" for making things worse. Schwartz said too many school leaders don't know what good teaching looks like. They are unpracticed at navigating the policy-making process that allocates major education funding and unprepared to remake large, complex and always-changing organizations, he said.

The first year of studies is devoted to a rigorous core curriculum. The next year, students chose from a slate of courses at the three schools - such as "Managing Human Capital" at the business school or "Marketing for Non-Profits and Public Agencies" at the Kennedy school. Schwartz compares the final year to a medical residency. Students lead a "high priority" project at a school district, nonprofit organization or another program partner. Partners so far include the Atlanta and New York school districts and Teach for America, which recruits promising college graduates to teach in urban and rural areas.

The Harvard program will start in the fall of 2010 with just 25 students. It's tuition-free and includes a living stipend to attract a broader range of students.  [Seattle PI]

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The Supreme Court of Washington Blog reports that the Washington Supreme Court has accepted two controversial educational cases for review: Bellevue School District v. E.S. and State v. Hirschfelder. We previously blogged on the Bellevue School District appellate decision. Click here to access the post.

In short, the Bellevue decision stated that children had to be provided an attorney at initial truancy hearing. The Hirschfelder decision involved a teacher who had sexual intercourse with a high school student. Because the student was 18 years old, the Court of Appeals held that the teacher could not be criminally liable for first-degree sexual misconduct with a minor. Both of these decisions will be reviewed, and possible reversed by the Supreme Court this year. [Supreme Court of Washington Blog]

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The folks over at TeachingDegree.org have posted a handy list of over 100 "cheat sheets" on their website. The site lists them as 100 Terrific Cheat Sheets for K-12 Teachers, but a lot have application past the K-12 classroom. Like "The Teacher’s Cheat Sheet: Getting Students to Write Good Research Papers in Any Subject." Or, "Technology Integration Cheat Sheet" which gives tips on how and what to include when teaching and integrating technology in the classroom.

While cheat sheets have a bad rap, as the website points out, "it’s time for them to have a more positive place in education. Cheat sheets can offer a succinct way for students to study their lessons and provide an excellent boost to what you are already teaching them in class. Cheat sheets can provide helpful information for teachers too."

Access all the cheat sheets here.
 

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Today on the Supreme Court of Washington Blog, Michael Reitz posted a great recap of yesterday's oral argument heard by the Washington Supreme Court in Federal Way School District 210, et. al, v. State of Washington, et. al., No. 80943-7. Before the Court was the issue of whether Washington's Legislature is constitutionally compelled to equalize state allocations to school districts for school employee salaries. Currently, there are wide disparities in salaries from district to district that are a direct result of the way the Legislature allocates funding. Federal Way School District sued the State seeking a uniform system of funding for all districts. Read Michael's full summary of the hearing here.

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WASHINGTON – With President Obama talking a big game about boosting support for community colleges, some educators have released a specific plan to do so in an ambitious way.

Thursday, the Brookings Institution’s Metropolitan Policy Program released a report chock-full of recommendations for the federal government to bolster its commitment to the country’s community colleges and help transform them into “engines of opportunity and prosperity.” Among the report’s key recommendations, it challenges the federal government to double its current direct level of support to America’s community colleges so that federal funds would account for more than 10 percent of their budgets. The report also calls for the government to guarantee that community colleges receive at least half of the $2.5 billion “College Access and Completion Fund” – a debated section of the 2009-10 federal budget that would support state efforts to boost the college completion rates of low-income students.

The report also calls for the government to guarantee that community colleges receive at least half of the $2.5 billion “College Access and Completion Fund” – a debated section of the 2009-10 federal budget that would support state efforts to boost the college completion rates of low-income students. [Inside Higher Ed]

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With attorneys fees and fines of up to $100 per day for improperly following the Public Records Act, every public school in Washington needs to keep up to speed on the law.  Earlier this year, the Washington Supreme Court clarified that if an agency withholds records pursuant to an exemption from the Public Records Act, the agency's response is not complete until it provides a privilege log identifying the individual records it was withholding.  Until a response is complete, the one year statute of limitations to challenge the response does not start to run.

In Rental Housing Association of Puget Sound v. City of Des Moines, the Rental Housing Association (RHA) made a request to the City of Des Moines, WA for records relating to a crime free rental housing program that the City adopted.  In August 2005, the City responded with documents and a cover letter generally describing the records that it was withholding pursuant to exemptions.  It did not provide a privilege exemption log describing individual documents.

The RHA responded, demanding disclosure of some of the documents that it did not believe fell under exemptions.  The RHA also demanded a privilege log describing each withheld document and the basis for withholding the document.  After several months of communication and additional requests for information, the City produced a privilege log regarding the withheld documents from the RHA's first request.  The RHA responded, claiming that the City's log was missing necessary details including authors, recipients, and other details.  The RHA claimed, too, that several documents were not eligible for exemption under the Public Records Act.  When the City refused to provide any additional records, the RHA filed suit in January 2007.  More wrangling and an additional records request ensued.

The trial court granted the City's motion to dismiss the lawsuit on the basis that the RHA failed to timely challenge within the one year statute of limitations set forth in RCW 42.56.550(6).  The trial court reasoned that the statute of limitations was triggered when the City sent the first letter to the RHA in August 2005.

The Washington Supreme Court disagreed and reinstated the lawsuit.  Relying, in part, on its decision in Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 884 P.2d 592 (1994), the Court reaffirmed its position that agencies cannot engage in "silent withholding" or "failing to reveal that some records have been withheld in their entirety."  Such practices give requesters the "misleading impression that all documents relevant to the request have been disclosed" and do not allow courts to evaluate the claimed exemption.  The Court then pointed out that the Washington Administrative Code requires a brief explanation of withholding when an agency claims an exemption.  One way to meet that requirement is to provide a detailed privilege log that "identifies the type of record, its date and number of pages, and the author or recipient of the record (unless their identity is exempt).  The withholding index need not be elaborate but should allow a requester to make a threshold determination of whether the agency has properly invoked the exemption."  WAC 44-14-04004.

Examining whether the City met its burden and thereby started the statute of limitations period, the Court ruled that it did not:

The City's reply letter to the RHA on August 17, 2005, was insufficient to constitute a proper claim of exemption and thus did not trigger the one-year statute of limitations under RCW 42.56.550(6).  The City's August 17, 2005 reply letter did not 1) adequately describe individually the withheld records by stating the type of record withheld, date, number of pages, and author/recipient or (2) explain which individual exemption applied to which individual record rather than generally asserting the controversy and deliberative process exemptions as to all withheld documents.

The Court rejected the argument raised by the Attorney General's office that the requirement of a privilege log to trigger the statute of limitations would generate uncertainty because the claim of exemption would rest on whether the requester deemed the description sufficient, not on the bright line date that the exemption was asserted.  The Court responded that the Public Records Act, not the requester's preference, controls when a claim of exemption is validly made:

Without the information a privilege log provides, a public citizen and reviewing court cannot know (1) what individual records are being withheld, (2) which exemptions are being claimed for individual records, and (3) whether there is a valid basis for a claimed exemption for an individual record.  Failure to provide the sort of identifying information a detailed privilege log contains defeats the very purpose of the [Public Records Act] to achieve broad public access to agency records.  RCW 42.56.030.  In this regard, requiring a privilege log does not add to the statutory requirements, but rather effectuates them.  See RCW 42.56.210(3).

Accordingly, the City did not state a proper claim of exemption to trigger the one-year statute of limitations until it provided a privilege log to the RHA.

Privilege logs are not difficult to create, but do require some skillful crafting when describing the subject matter of the documents being withheld.  A good description must contain the proper balance of providing enough information to support the claimed privilege, but not so much information that the privilege is waived.  It is apparent from this recent lawsuit, however, that public entities face increased exposure if they fail to provide a privilege log (artfully drafted or not) when responding to a records request.  The costs of non-compliance are high -- attorneys fees and costs will be awarded, and the court may also impose fines of $5-$100 per day -- schools should review their policies and make sure that they are prepared to meet this challenge.

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Twelve Washington school districts, with the support of an additional seventy-two districts, have lost another battle in their attempt to reform special education funding. According to the state’s appellate court, Washington’s system of funding special education is constitutionally valid. The twelve districts, under the name “Alliance for Adequate Funding of Special Education,” alleged that Washington is underfunding special education, and claimed that Washington’s legislation fails to satisfy the state’s constitutional duty to “make ample provision for the education of all children.” Washington State Constitution, Art. IX, § 1.

By statute, Washington provides its districts with Basic Education Act (BEA) funds based on the average full-time equivalent student enrollment in each district. This BEA funding is the same for all students, regardless of their disposition or actual cost to education. For special education students, Washington supplements that BEA funding on an “excess cost” basis, calculated as the additional cost of educating an average special education student. In addition, Washington provides for “Safety Net” funding designed for students whose needs exceed $15,000 per academic year.

In order to overturn the special education funding legislation, the Alliance needed to prove “beyond a reasonable doubt” that the legislation is “facially” unconstitutional—meaning absolutely incapable of being applied in a constitutional fashion—or that the legislation is unconstitutional “as applied”—meaning that in practice the legislature failed to adequately fund special education to the extent required by the Washington Constitution. The Court of Appeals found that the Alliance failed to meet its burden because: (1) the Alliance’s calculations for the alleged special education funding deficit were incomplete and unreliable by virtue of its exclusion of the BEA from the revenues available for educating a special education student; (2) the Alliance failed to produce evidence proving the invalidity of the excess cost multiplier that is used to determine special education funding; and (3) the Alliance was unable to convince the court that an overall funding deficit existed, even though many students remain ineligible for Safety Net funding because their needs fall below $15,000. The Court of Appeals concluded: “[A]s our Supreme Court has often held, ‘it is not this court’s role to micromanage education in Washington.’” The court then stated that the legislature, not the courts, has “the general authority to select the means of discharging [the] duty to fund education.”

While certainly a disappointing result for the Alliance, this decision is remarkable not only for its outcome, but for the astonishing unity of the Washington school districts supporting the Alliance. While the Alliance consists of only twelve Washington school districts, a staggering seventy-two additional Washington school districts supported the Alliance’s effort as amicus curiae, meaning that the Alliance was able to unite districts representing 62% of Washington special education students. With such a substantial body of districts discontent with special education funding in Washington, we can expect to hear more from the Alliance and other Washington school districts on this issue in the future.

See the entire opinion here.
 

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Justin Bathon at the Edjurist blog posted a good piece this morning that provides resources for laws relating to open meetings. Anyone in the public sector is encouraged to bookmark these resources and utilize them often. The Washington Supreme Court recently issued an opinion, Rental Housing Association of Puget Sound v. City of Des Moines that clarifies the exemptions available under Washington's Public Records Act. A summary of that case is posted here.

School boards really struggle with the Open Meeting Laws (sometimes called Sunshine Laws).  Here is a compendium of every state's Open Meetings laws.  Like any secondary source, this compendium is not a substitute for primary sources.  I have noticed errors in the compendium.

Also, most states have a handbook on Open Meetings/Records laws for new board members and most are online. NSBA has some of them here.  Follow these links to guides for Washington, Oregon, and Idaho.  I was not able to find a guide for Alaska, but the statues are here.

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The Highland School District has been sanctioned in excess of $18,000 despite the fact it ultimately prevailed in an arbitration against the Highland Education Association (the “Union”). The dispute arose after the District declined to renew the coaching contracts of two teachers due to unrelated instances of classroom misconduct. The Union filed grievances and sought arbitration because the teachers had been disciplined pursuant to the parties’ labor agreement. The District then filed a lawsuit seeking to stop the arbitration process. The trial court dismissed the lawsuit and sanctioned the District $18,000 for bringing a frivolous claim.

Washington strongly favors arbitration of labor disputes. The collective bargaining agreement between the District and the Union stated that the “arbitrator will decide all substantive and procedural arbitrability issues.” The court reasoned that because the parties agreed to leave the issue of whether a matter is subject to arbitration to the arbitrator, the District’s initiation of the lawsuit seeking to resolve that very issue was frivolous. Accordingly, under Washington law, the trial court had the authority to require the District to pay “the reasonable expenses, including fees of attorneys, incurred in opposing” a frivolous lawsuit. The District was charged another $705 in attorneys fees after seeking reconsideration of the sanctions ruling.

The Union appealed the award of attorney fees, arguing that the trial court should have used a lodestar method of computation rather than awarding the fees actually incurred by the Union. Under a lodestar method, the court essentially considers a reasonable hourly rate for a reasonable number of hours worked. Oftentimes, an additional adjustment will be made to the lodestar figure to account for the risk factor of a contingency fee, a particularly complex or difficult case, or a particularly skillful performance of counsel. The Court of Appeals a determined that the trial court had broad discretion to fashion an award, and held that it was proper in this matter to limit the award to the fees actually incurred.

A copy of the decision can be found here.
 

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According to the Seattle Times, the 2009 American Recovery and Reinvestment Act will offer increased financial aid to low- and middle-income students this year. The changes are temporary, though, and the future is uncertain. The stimulus bill offers the following changes:

• Pell Grants: Funding has increased and eligibility requirements have changed. The maximum allowance for 2009-2010 is $5,350; the maximum allowance for 2010-2011 is $5,550. Eligibility requirements have changed, too, meaning that an additional 800,000 students will be eligible to receive a Pell grant. In 2011-2012, the maximum allowance drops to $5,250, unless new legislation is enacted
• Tax Credits: Under the American Opportunity Tax Credit, the maximum tuition tax credit is raised from $1,800 to $2,500 (100% reimbursement for the first $2,000 spent on higher education and 25 percent of the next $2,000 spent on qualified educational expenses). Income levels will vary the amount of credit that can be claimed.  After 2011, the credit reverts to 2009 levels.
• School-specific Aid: Work-study funding is increased by $200 million, providing approximately 81,000 more students with work-study jobs. Absent new legislation, work-study funding will go back to 2009 levels after the 2010-2011 school year.

[Seattle Times]

See the related stories 10 Tips for Getting the Best College Financial-Aid Package and Economic stimulus offers relief to career college students.

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In a lucrative vote of confidence in Seattle Public Schools, the Bill & Melinda Gates Foundation will give the district $7.2 million over the next three years, saying it is impressed with the five-year plan developed under Superintendent Maria Goodloe-Johnson.

The grant is one of four the district plans to announce Tuesday, for a total of $9 million.

The Gates Foundation's contribution is its first major donation to the city's public schools since 2000, when it gave a five-year, $26 million grant, one of the first in its initial $350 million effort to improve the nation's schools. [Seattle Times]

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President Obama spoke to the Hispanic Chamber of Commerce and outlined his plan for improving education, listing five pillars of reform: 

1) Raise the quality of early learning programs;
2) Encourage better standards and assessments;
3) Recruit, prepare, and reward outstanding teachers;
4) Promote innovation and excellence in America's schools; and
5) Provide every American with a quality higher education (college or technical training)

See the President's remarks here.

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The Oregon Supreme Court reached an awkward decision in late January, finding that the legislature violated the Oregon Constitution by failing to fully fund public education, yet also finding the same constitutional provision provides no remedy or enforcement power.

In the November 2000 general election, the voters adopted a ballot measure that became a constitutional amendment (Article VIII, section 8), which states, in part:

(1) The Legislative Assembly shall appropriate in each biennium a sum of money sufficient to ensure that the state’s system of public education meets quality goals established by law, and publish a report that either demonstrates the appropriation is sufficient, or identifies the reasons for the insufficiency, its extent, and its impact on the ability of the state’s system of public education to meet those goals.

The Quality Education Commission (QEC) was established to determine the necessary amount of funding each year. The Legislature has never appropriated the amount of money that the QEC determined necessary. For the 2003-2005 biennium, the QEC concluded $6.995 billion was needed; the Legislature appropriated $4.9 billion. For the 2005-2007 biennium, the QEC concluded that $7.035 billion was needed; the Legislature appropriated $5.2 billion.

Focusing on the first clause of Article VIII, section 8, eighteen school districts and seven public school students sued the State of Oregon with the goal of forcing the legislature to appropriate funding at the level recommended by the QEC. The State argued that the legislature is not required to fund education at the levels set by the QEC because the second clause of Article VIII, section 8 permits it to publish a report identifying the reasons for the insufficient appropriation, the extent of the insufficiency, and the impact on the education system.

The Oregon Supreme court recognized these contradictory provisions of Article VIII, section 8, and also recognized that it could not ignore the contradiction as the parties to the lawsuit had done: “[The school districts] emphasize the funding requirement at the expense of the reporting requirement, while the state emphasizes the reporting requirement a the expense of the funding requirement. Unlike the parties, we are not free to ignore any part of Article VIII, section 8.” The court, therefore, decided that the legislature had violated constitution and failed to fully fund the public school system. The court then decided that courts were not able to enforce the funding of public schools because to do so would ignore the legislature’s reasons for the shortfall. In addition, if the courts were to enforce funding a the specified levels, then the deficiency could not “‘impact . . . the ability of the state’s system of public education to meet those goals,’ because the courts would not permit the deficiency to continue.” Since an injunction requiring the legislature to fund the public school system at the levels required by the Oregon Constitution would not be consistent with the reporting requirement, the court decided that it was not able to impose such an injunction.

A copy of the opinion can be found here.

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$49 Billon More to Be Available within 6 months

U.S. Secretary of Education Arne Duncan announced Saturday that $44 billion in stimulus funding from the American Recovery and Reinvestment Act (ARRA) will be available to states in the next 30 to 45 days. The first round of funding will help avert hundreds of thousands of estimated teacher layoffs in schools and school districts while driving crucial education improvements, reforms, and results for students.

"These funds will be distributed as quickly as possible to save and create jobs and improve education, and will be invested as transparently as possible so we can measure the impact in the classroom," said Duncan. "Strict reporting requirements will ensure that Americans know exactly how their money is being spent and how their schools are being improved."

Guidelines posted by Duncan today authorize the release this month of half the Title I, Part A stimulus funds, amounting to $5 billion, and half the funds for the Individuals with Disabilities Education Act (IDEA), $6 billion, without new applications.

By the end of March, governors will be able to apply for 67 percent of the State Fiscal Stabilization Funds (SFSF) and discretionary SFSF, totaling $32.5 billion. These funds will be released within two weeks after approvable applications are received.

In the next 30 days, nearly $700 million more will be available for various programs including vocational rehabilitation state grants and impact aid construction, Duncan said. Another $17.3 billion for Pell Grants and work-study funds is available for disbursement for the next academic year beginning July 1.

An additional $35 billion in Title 1, IDEA, and State Fiscal Stabilization Funds, as well as monies for other programs will be distributed between July 1 and September 30.

ARRA funds must be used to improve student achievement. To receive the first round of state stabilization funds, states must commit to meet ARRA requirements, including making progress on four key education reforms, sharing required baseline data, and meeting record-keeping and transparency requirements. To receive the second round of funding, they must provide evidence and plans for progress on these assurances. All four education reforms were previously authorized under bipartisan education legislation—including the Elementary and Secondary Education Act and the America Competes Act of 2007:

• Raising standards through college- and career-ready standards and high-quality assessments that are valid and reliable for all students, including English language learners and students with disabilities;
• Increasing transparency by establishing better data systems tracking student progress over time;
• Improving teacher effectiveness and ensuring an equitable supply and distribution of qualified teachers;
• Supporting effective intervention strategies for lowest-performing schools.

Finally, a $5 billion fund has been established under the law for the Department of Education. This includes a $4.35 billion "Race to the Top" fund to help states with bold plans to improve student achievement—including these four reforms—and $650 million to assist school districts and non-profit organizations with strong track records of improving student achievement State grants will go out in two rounds over the next year, beginning in October 2009. Applications will be available later in the spring.

"These investments will save and create jobs in the short term, while raising achievement in the long term," Duncan said. “We will need a strong commitment on the front end and even stronger proof on the back end that states are making progress."

Duncan also said that states should work hard to avoid "funding cliffs" by investing ARRA funds in ways that minimize "the tail"—i.e., ongoing costs after the funding expires.

"These are one-time funds, and state and school officials need to find the best way to stretch every dollar and spend the money in ways that protect and support children without carrying continuing costs," Duncan said.

Additional details, including a category-by-category list of all ARRA funds appropriated to the Department of Education, as well as requirements and plans for their distribution are posted at www.ed.gov/recovery.

"Our goals are to save jobs and improve education. Today's guidelines show exactly how we can do both—balancing the need for a speedy release of funds with the need for aggressive and thoughtful school improvements and reform to improve results for our children," Duncan said.

United States Department of Education
 

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Posey v. Lake Pend Oreille Sch. Dist., 546 F.3d 1121 (9th Cir. 2008)

Plaintiff, a former security specialist for an Idaho high school, met several times with the principal to express his concerns about student discipline and safety issues, including ongoing drug and weapons violations. Plaintiff then composed and delivered a letter to the school district’s chief administrator and other school administrators. Plaintiff wrote the letter at home, with his own resources, on his own time, and of his own initiative. Thereafter, plaintiff’s job was eliminated and he was not rehired into a newly consolidated position. He brought a lawsuit against the school district claiming retaliation in violation of the First and Fourteenth Amendments to the United States Constitution. The U.S. District Court for the District of Idaho granted summary judgment on the grounds that, as a matter of law, the speech in question had been spoken/written pursuant to the plaintiff’s job responsibilities and as a public employee, it was not constitutionally protected.

The Ninth Circuit reversed the decision, finding that the inquiry into whether a public employee’s speech is protected by the First Amendment is not purely a legal question but presents a mixed question of fact and law. The Ninth Circuit made clear that the inquiry that the court must undertake in a First Amendment retaliation claim is to first determine whether the expressions in question were made by the speaker upon matters of public concern; and second, whether the State actor lacked adequate justification for treating the employee differently from any other member of the general public. Both questions may be determined as a matter of law by the trial court, and if the answer to both questions is affirmative, the court should then consider whether the plaintiff spoke as a private citizen or a public employee. The question of the scope and content of a plaintiff’s job responsibilities is a question of fact. Therefore, if there are genuine and material disputes as to the scope and content of the plaintiff’s job responsibilities, the court must reserve judgment on the third prong of the protected status inquiry until after the fact finding process. Accordingly, the Ninth Circuit reversed the grant of summary judgment and remanded the case to the District of Idaho for further proceedings.