No Child Left Behind and Global Competitiveness from New Learning Institute on Vimeo.

In affirming the district court’s decision, the Ninth Circuit reviewed the four legal factors the students must establish in seeking a preliminary injunction: (1) they are likely to suffer irreparable harm; (2) the balance of equities tips in their favor; (3) a preliminary injunction is in the public interest; and (4) they are likely to succeed on the merits.  First, the court determined the students would likely suffer irreparable harm as the evidence demonstrated actual regression suffered by the students because of the first few furlough days.   In balancing the equities, the court found reasonable the district court’s analysis of the financial harm to Hawaii schools versus the harm to students, and concluded the equities were fairly balanced.   In doing so, the Ninth Circuit affirmed the district court’s recognition that the furloughs were “the least bad of all the bad choices you can make.”  As for the public interest analysis, the court noted that while the public would not benefit from the reduction of instructional minutes, this harm was less harmful than teacher layoffs.

Finally, in reviewing the final and most important factor – likelihood of success on the merits – the court analyzed the stay put requirement to maintain a child in his or her “current educational placement” during the pendency of any proceeding under the IDEA.  While noting there is no definition of “current educational placement,” the court found the purpose of stay put is to avoid a unilateral change from one program to another or a “significant change” to the student’s program within the same setting.   The court concluded “an across the board reduction of school days such as the one here does not conflict with Congress’s intent of protecting disabled children from being singled out.”  According to the Ninth Circuit, applying the stay put provision under such circumstances would give parents “veto power over a state’s decision regarding the management of its schools.”  Thus, in spite of the determination of actual harm outlined above, the students were still not likely to prevail on the merits as the court agreed “that the stay-put provision of the IDEA was not intended to cover system-wide changes in public schools that affect disabled and non-disabled children alike, and that such system-wide changes are not changes in educational placement.”

In other words, everyone is screwed.  Well, what’s fair is fair.

I was waiting for my son’s transition IEP (Individual Education Program) meeting in the office of his new school (he will be leaving a pre-school special ed program next week and entering a general ed kindergarten class in August) when I saw hanging from the wall the Norman Rockwell illustration of a girl with a black eye sitting outside the principal’s office. She looked dazed and happy, like she probably won the fight. My wife and I were also about to fight, having disagreed with the school district’s original offer of FAPE (Free Appropriate Public Education) and written a letter to the Special Ed Director explaining our concerns. We had recently won in a fair hearing versus Regional Center (our son had been denied services there and a judge overturned their decision) so we were feeling pretty scrappy. We knew that we could prevail. Part of that confidence was due to the excellent legal representation we were able to secure, but more important was the fact that we could fight at all, that the system allowed for appeal.

If our son’s new school were a charter it could lock us out. So long. Don’t let the door hit you in the behind. There would be no recourse because, though funded by public money, charters can pick and choose who they serve. Although Secretary of Education Arne Duncan claims that charters are a guarantee of civil rights, they are the exact opposite. They deny what federal law requires, that all public schools treat all students equally regardless of race, belief or disability. Imagine how the public would react today if a privatized school turned away the little girl in another Rockwell illustration, The Problem We All Live With. The parents of six-year-old Ruby Bridges volunteered their daughter to test the new integration laws in 1960. She became the first black child to attend an all-white public school. From Wikipedia:

The court-ordered first day of integrated schools in New Orleans, November 14, 1960, was commemorated by Norman Rockwell in the painting The Problem We All Live With. As Bridges describes it, “Driving up I could see the crowd, but living in New Orleans, I actually thought it was Mardi Gras. There was a large crowd of people outside of the school. They were throwing things and shouting, and that sort of goes on in New Orleans at Mardi Gras.” Former marshal Charles Burks later recalled, “She showed a lot of courage. She never cried. She didn’t whimper. She just marched along like a little soldier, and we’re all very proud of her.”

Can you imagine what would happen today if a charter school turned her away? How is turning away children with disabilities any different? The problem we live with is inequality, a problem that Secretary Duncan will doubtless rectify, because in this country we defend the rights of children.

Or do we?

This is noteworthy: Congresswoman Chu’s alternative to the test/punish educational plan favored by the administration.

“Congresswoman Chu has developed an excellent framework for redefining the federal role in K-12 education. Her proposals recognize that the path to school improvement is through positive, not punitive, measures. She understands that teachers do their best in atmosphere of respect and encouragement, rather than incentives and sanctions,” said Diane Ravitch, education historian and former Assistant Secretary of Education. “The federal role should be to support school improvement, not to mandate closings and firings. She is a breath of fresh air in a stale and nonproductive discussion.”

Signs like this plan and the overwhelming response to Diane Ravitch’s new book make me optimistic that the public has started to see through the Race To the Top rhetoric and is now seeking alternatives to its dangerous agenda.  Kudos to Ravitch, Chu, and all the other voices in the wilderness.

On the campaign trail in Wisconsin on February 28, 2008, Michelle Obama said, ”No Child Behind is strangling the life out of most schools.” She added,”If my future were determined by my performance on a standardized test, I wouldn’t be here. I guarantee that.” Thousands and thousands of Americans agree with her criticism.

MICHELLE OBAMA CAN HELP END THE RELIANCE ON HIGH STAKE STANDARDIZED TESTS.

On May 29, 2010, get everyone you know to send postcards to the First Lady. Affix a 28-cent stamp to a postcard and address it to:

First Lady Michelle Obama
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

Send the postcard with this message (modify if sent by students):

Dear Mrs. Obama,

We want the same education for our children that you provide for Malia and Sasha. Our child is not a test score.

Please tell the President to end the use of high stakes standardized tests!

Sincerely,
Your name
Your address