Response To Comments, Fall 2008

Its time again to write about some comments. I wrote about the District of Columbia School Chancellor’s efforts to implement performance pay in “Teacher pay and tenure: creating a free agent market.”  Professor Fox added a comment regarding improvement to the current common rater method of assessing performance. I also wrote a piece about confederate flag waiving students (“Yet another confederate flag case”)” that garnered a response from Lynn accusing me of revisionist history and political correctness (me!). Craig wrote an interesting question in response to the entry “College-Student Disciplinary Contract Claims.”  Finally, in “Fourth Circuit Placement Decision Revisited: the last word,” I brought readers up to date on the case at issue and responded to a previous comment critical of my suggestion that open and honest communication can be a salve to the bad decision. Well, I got a comment from Nagla in support of my view!  Thanks for all your comments, even if I don't get to address each one.  Now to the four comments.

I am not sure what Professor Fox thinks of the Chancellor's efforts or even my observations about the ability to objectively measure teacher performance. I do note that his same comment appeared on a couple of other blogs, see here and here, and a similar comment appeared here, which may explain why his comment on this Blog does not speak to the issue of objective performance review.


We know from special education that a teacher’s performance can be assessed both directly (compliance with legal compliance such as time lines; educational-legal compliance such as IEPs with measurable goals and proper present levels of educational performance) and indirectly through student outcome (based on individual student performance measured via objective and measurable goals (and I mean rigorously and scientifically measurable, such as increases in reading words correct per minute, and the like), thus accounting for both high- and low-level potential students).  I still believe this sort of assessment can be proper and fair in a merit-pay performance rating system.


I believe we can agree that pay should not be based on bias and favoritism (which are too invasive in rater-ratee subjective assessments) or even the good fortune of living among a bunch of high-fliers (which is what standardized assessments reveal). I would be interested in knowing Professor Fox’s views on transferring lessons learned from special education progress monitoring and compliance demands to objective assessment of teacher performance.


My commentary on the confederate flag  quoted one of the students as saying “the confederate flag ‘had nothing to do with slavery’” and a school spokesman said “the Confederate flag represents hatred, bigotry, intolerance, slavery, . . . .”  I also pointed out that the confederate flag “represents armed insurrection against our Constitution and all the freedoms many generations of men and women fought and died for.”  Lynn takes issue with this. 


The comment says “The civil war was not about slavery! Have you read the Emancipation Proclamation?”  Well, yes.  Although my entry did not go into the great Proclamation, you can read it here.   The National Archieves described the impact of the document: “Although the Emancipation Proclamation did not immediately free a single slave, it fundamentally transformed the character of the war.  After January 1, 1863, every advance of federal troops expanded the domain of freedom. . . .   The Emancipation Proclamation confirmed their [slaves’] insistence that the war for the Union must become a war for freedom.  It added moral force to the Union cause and strengthened the Union both militarily and politically.  As a milestone along the road to slavery's final destruction, the Emancipation Proclamation has assumed a place among the great documents of human freedom.” 


Lynn is not quite correct in writing “It only freed the slaves in the states that left the Union.” It actually gave legal freedom only to those held in bondage in states and areas that were still “in rebellion against the United States” (Lincoln’s own words), even after Lincoln gave 100 days advanced warning (it is actually Lincoln’s reiteration of the previous warning proclamation that Lynn quotes in the comment).


Moreover, Lincoln was constrained by Constitutional process. It would be ironic if Lincoln were to have disregarded his sworn duty to uphold and defend the Constitution, and to engage in a war to save the Union, but still just disregard our founding document by freeing slaves everywhere. One might note that cutting the chain of bondage required the 13th Amendment.  Lincoln could only free those living in the identified rebellious territories, where as Commander-in-Chief he had the free reign to act.  I believe Lincoln himself addresses this troublesome little point of constitutional probity:


“Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, . . . order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, . . . And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free. . . .”

I fail to see nothing but fact, rather than revision and PC, in what the confederate flag means, at least to me.  After all, if the civil war was not about a “state’s right” to hold another human in bondage, then what was it about?  Anyone studying the civil war and the period leading up to it understands that this was the fundamental friction between the states.  But then even Lynn’s comment does not dispute the meaning and symbolism of the flag born out of bondage. 

So I still ask, why couldn’t those school kids just waive the American Flag instead?

Now I come to Craig’s question about college student discipline: “If the courts see the due process between the student contract and the student [as] a private matter then why is an expelled student required to disclose the incident on a college application[?]”  Because, generally, the courts do not address both questions. 

The first question confronted is what does the contract (the student handbook) require of both the college and the student; and did both parties adhere to the contract (bear in mind that each state’s laws likely differ about how they view the relationship; the Blog entry addresses a Pennsylvania case)? The second question, about disclosure, is typically not addressed unless the first question is answered in favor of the student.  If the college breached the contract, then part of the relief would be to undo the harm. Typically, that will include removing disciplinary references from the student’s record.  If this is done, disclosure is a non-issue.  If the student loses, however, consequences follow.

Another reason is that the second question is addressed between different parties: the student of course, is the same, but the college is different. That different college is free to inquire into any legally appropriate area. Prior expulsions is not a prohibited are of inquiry.  

And finally, Nagla’s comment: “I totally agree with your observation, honest and open communication is essential to resolving problems.” I think that’s a good way to end.

Protect your right to the ADA religious exemption

Religiously-affiliated independent schools and colleges need to take certain steps to have the protection offered by the religious exemption in the Americans With Disabilities Act, which states: “The provisions of this subchapter shall not apply to . . . religious organizations or entities controlled by religious organizations, including places of worship.” 42 U.S.C. § 12187. Whether an institution is entitled to the exemption is a factual question. A summary of factors is at the end of this entry.  

The Third Circuit “touched” on the issue of ADA’s religious exemption as applied to private schools in Doe v. Abington Friends School, 480 F.3d 252 (3d Cir. 2007). The plaintiffs claimed Abington Friends School (“AFS”) discriminated against their son, a student with disabilities (ADHD and learning disabled) attending the school. Among other things, the plaintiffs claimed AFS used improper discipline and failed to accommodate him.  

Procedurally, the issue was whether the District Court erred by not allowing discovery first after the school moved for summary judgment based on the exemption. Not surprisingly, the Third Circuit reversed and vacated. But it doing so, it noted as follows. 

Whether [AFS] qualifies for the ADA's religious exemption is a mixed question of law and fact, the answer to which depends, of course, on the existence of a record sufficient to decide it. The ADA's exemption can apply only if [AFS] (1) is a religious organization or (2) is controlled by a religious organization. See 42 U.S.C. § 12187No court of appeals has yet fully examined the ADA's religious exemption, and the undeveloped state of this record makes us reticent to do so now. Whatever the scope of that exemption, though, the District Court here needed to allow the parties to develop the record as to potentially relevant facts. The extent of discovery, of course, is within the Court's discretion, but the circumstances of this case require more than was given.

Doe, 480 F.3d at 258 (footnote omitted). Although the District Court’s decision was reversed on the procedural issues, the trial court’s opinion, Doe v. Abington Friends School, slip. op 04-4647, 2005 WL 289929 (E.D. Pa.), is still instructive. 

The court observed that only one other case, White v. Denver Seminary, 157 F. Supp. 2d 1171 (D. Colo. 2001), had considered the religious exemption under Title III of the ADA. Considering that case, together with the U.S. Department of Justice’s regulations, 28 CFR Part 36, App. B, interpreting the religious exemption, the court in Doe looked to the following factors: AFS is owned and controlled by the Abington Monthly Meeting of the Religious Society of Friends (“church”); the church ensures AFS adheres to Quaker principals, manages AFS’s, and selects the Headmaster; students are taught Quaker principals and values and are required to attend a weekly Quaker meeting; and AFS is classified by the Commonwealth of Pennsylvania as religiously affiliated. 

Later that same year, another district court case addressed applicability of the religious exemption to a disability discrimination claim. Marshall v. Sisters of the Holy Family Of Nazareth, 399 F. Supp. 2d 597 (E.D. Pa. 2005).  Plaintiffs claimed the private religious primary school violated the ADA and § 504 of the Rehabilitation Act when it refused to readmit the student for the following school year. The court found the school properly met the religious exemption test looking at similar factors: Nazareth Academy is a religious organization or is controlled by a religious organization; the Academy is controlled and solely operated by a canon law religious community composed of Roman Catholic nuns; the Academy has a religious mission; the curriculum includes religious instruction and focus on religious principals; and the Academy is a § 501(c)(3) tax-exempt organization based on affiliation with the Roman Catholic Church. 

Both cases repeat the regulatory appendix’s statement that the religious exemption is “very broad.” 28 CFR Pt. 36, App. B (page 682) (2004). The source and authority for this interpretation is not identified in the cases or regulations. The statute itself is quite direct and clear that Title III does not apply to “religious organizations or entities controlled by religious organizations. . . .” It makes no reference to either broad or limited scope. Given the Supreme Court’s recent ruling regarding plain statutory language, see Arlington Central School District v. Murphy, 548 U.S. 291 (2006), and the general tendency to view broad regulatory pronouncements with skepticism, private schools should not put stock into regulatory protection. Rather, taking in all information and the important factors assessed by the court, religiously affiliated schools need to review their currency with those factors and make changes if desired.

Although the claims of disability discrimination against independent schools and colleges are not yet numerous, they do occur. As a matter of responsible risk-assessment, an institution should review its circumstances against the apparent salient factors, including—

  • Curriculum
  • Religious instruction and or service requirements
  • Religious mission
  • Board membership
  • Ownership or control by a religious entity
  • Affiliation or sponsorship by a religious entity
  • Head of school is selected by the religious entity
  • State recognition or categorization
  • Ownership of school property
  • Tax status
  • Funding support

The religious exemption is based on a desire to protect the free exercise of religious belief. Still, there may be limits. In the end, entitlement to the exemption depends on whether there is enough religion in the entity; the law, however, does not say how much is enough. At some point, the facts of the entity’s religious nature could be trumped by the facts of the bad conduct. 

Study abroad: adventure, danger, and liability

The gravest danger I encountered was a drunken Scotsman looking for a fight (no, he was not in a kilt; those are for formal occasions) at the University of Stirling.  No trouble there for me, but things seem to have changed for students overseas in the new century.

The number of American students "studying” (quotes are deliberate) overseas is growing fast. According to The Chronicle of Higher Education (“The Chronicle”)(subscription required, sorry), more than 200,000 American students studied overseas in 2004-05, twice as many eight years before.   Two-thirds of these adventurer-scholars, interestingly, are women, according to The Chronicle.  And according to a recent Newsweek blurb (get your free subscription with your WHYY membership like me), “experts predict that the number of students in overseas programs could swell from 206,000 last year [2006] to 1 million annually within a decade.”   It seems these young adventurer-scholars get into all sorts of trouble, from falling off the Great Wall of China, to being war refuges in Lebanon. 

Nonetheless, claims made to United Educators, an insurance company, have not been great in number, less than 100 between 1994-2004, with more than one-third involving sexual misconduct toward female students, followed by traffic accidents.  Frequently, alcohol seems to be a factor (see above). Current claims numbers are unknown to me, but probably have gone up.

Speaking of liability, apparently, I went about my time abroad entirely wrong, at least in terms of legal protection. I did what I suppose should be called a self-created program: I found a university to attend, made sure my college would give credit, and got myself into the overseas university. A few years later during law school I got the overseas bug again and so repeated this self-created program for an internship at the United Nations in Vienna. Turns out, all the risk of some unsafe situation would probably have be on me or the foreign institutions, according to The Chronicle. 

I suspect most students are connected to a "traditional" study abroad program, where a student enrolls in a consortium program or the student’s own college's program.  In contrast to self-created program, these programs are likely to bear the risk of trouble overseas. The Chronicle article gives a few lawsuit-examples. Fay v. Thiel College, Civ. A. 1998-2227, 2001 WL 1910037 (Pa. Mercer CCP), involved a trip abroad - three weeks in Peru with some faculty members to study "liberation theology in a Peruvian context." Prior to the trip, Fay had to sign a waiver in order to participate. During trip, Fay, who also spoke little Spanish, fell ill. The college faculty and students left her behind at a medical clinic while they continued their trip. Fay was sexually assaulted at the clinic (and subjected to some questionable surgery, as well). The court found the college had a special duty to Fay and refused to enforce a take-it-or-leave-it wavier.  (Among the lessons here is that take-it-or-leave-it waviers are almost always worthless.)

In King v. Board of Control of Eastern Michigan University, Civ. A. 00-60466, 221 F. Supp. 2d 783 (E.D. Mich. 2002) (not available on the court’s website), the federal court held Title IX’s sexual discrimination protections apply to American students participating in an American university’s study abroad program. This case involved a five week trip to South Africa during which male students were alleged to have acted rather inappropriately and the faculty allegedly failed to take appropriate action despite notice. 

The Chronicle also notes a jury verdict against a college for its failure to fulfill its duties to a disabled student while on a study abroad program in Australia. It is unclear whether the breach involved contractual promises, extraterritorial statutory application, or both.

And now to this mix of danger add terrorism. The Newsweek and The Chronicle articles discuss changes since September 11, 2001, including the growing market for kidnapping and extortion insurance coverage as well as rescue services companies such as International SOS (which announced a rate increase as of July 1, 2007, not surprisingly).

Faced with the seeming growing dangers encountered overseas, we have the proposed Senator Paul Simon Study Abroad Foundation Act of 2007, The Bill is gaining support and winding its way through the chambers and its progress can be monitored at NAFSA: Association of International Educators and at the Library of Congress page.  The Bill seeks to improve American’s “global literacy” and promote study abroad in developing nations and nontraditional places such as the Middle East. It aims to have one million undergraduates studying abroad within 10 years. Certainly activities we should promote, but at what price for trouble in such – currently – turbulent places?

The Bill, § 6(a), would give grants to students, to consortia, and institutions, which you probably noted happen to be the three sorts of liability categories identified above. Whether individuals undertaking self-study like I did would get a grant is unclear as elsewhere the Bill sets out certain program criteria. Grants to institutions are predicated on the program begin for academic credit and having “established health and safety guidelines and procedures.” § 6(f). That would seem to rule out self-study, despite the clear language in § 6(a). 

Be that as it may, I believe study abroad is valuable and all the good things said in the Bill are spot -on. But certainly circumstances today are rather different than long ago (although the Lockerbie Bombing occurred back then). The Bill could be more instructive in what health and safety measures an institution should have in place. A safe-harbor provision tied to health and safety measures might be advisable, too.  Perhaps institutions should consider student language abilities (Fay didn’t speak much Spanish), especially if they will be unsupervised; student’s past problematic behavior (is there a past indication of harassing behavior); the ability of the foreign location to meet student individual needs; insurance coverage; and of course a realistic ability to deliver on pre-trip promises made. 

I can't shake the bug.  Despite the dangers, I would consider grants to study these issues overseas.   

College-student disciplinary contract claims

The Pennsylvania Superior Court recently revisited – and rejected – breach of contract claims brought by a student dismissed from a private college. Reardon v. Allegheny College, --- A.2d --- 2007 WL 1576007 (Pa. Super.)  Thus, the Pennsylvania courts continue to adhere to a rather strict contract view of such claims, rejecting broader “due process” type claims.

The disciplinary procedures in the student handbook were the relevant contractual terms. The student did not argue that the terms were not bargained for, that she was unaware of the terms, or that the terms were ambiguous. The terms set forth “minimum procedural safeguards notice, the admission of relevant testimony, the right to call witnesses and present evidence, and the right to be represented by a member of the college community.” Reardon at pages 8-9. The student handbook did “not contain complicated procedural or evidentiary rules.” Reardon at page 8.

The court reiterated that, if a student cannot show a breach of any contractual terms, judges will not

review the college’s private, internal decisions, such as whether the dismissal was “just.” One might at first think this college-student contract rather unusual as it appears that, when the student claims the college did not perform as required, the college gets to unilaterally judge its own performance. But that is not the case. In a contracts class, we might say there is a difference between the customer claiming Acme Widget Co. failed to ship widgets versus Acme deciding to end its contract to sell widgets to the customer. Here, the court did consider student’s allegations of non-performance of the required terms, and concluded the college honored its promise to abide by the terms. But as such, the college’s decision (made in accordance with the terms) to “terminate” the contract was not reviewable. 

This case indicates that simple clarity of contract terms is preferred. That would tend to cut short any argument that the terms are ambiguous or similar contentions that distract attention from the plain words of the contract. Instead, the court will focus on compliance with simple, clear terms. And, being simple and clear, the terms should be easy for the college to follow in practice and thus “suffice to insulate the institution’s internal, private decisions from judicial review.” Reardon at page 6.