The Native American Mascot Issue Will Just Not Go Away

Posted on Categories Education & Law, Higher Education, Intellectual Property Law, Race & Law, Sports & Law, Wisconsin Law & Legal System17 Comments on The Native American Mascot Issue Will Just Not Go Away

WISCONSIN.  In Wisconsin, the legislature is considering a bill that would give Native Americans the right to formally object to the use of a disparaging nickname by a high school in their school district.  Under the Democratic-sponsored bill, anyone who objects to the use of a race-based team name, mascot, symbol, or logo in their school district can file a complaint with the state superintendent of education.  A hearing would then be heard to determine if the name or mascot was being used in a way that was “discriminatory, or promoted student harassment or stereotyping.”  If the finding is that the use was discriminatory, the district would have one year to eliminate all use of the name or image.  If it failed to do so, the district would be subject to daily fines of $100 to $1000.

On February 25, the bill passed in the State Assembly by a vote of 51-42.  However, before passage, it was amended to exempt from the bill’s coverage any school that uses a federal-government recognized tribal name as its nickname or any district that obtains permission to use its name or logo from a federally recognized tribe.  (Consequently, the Auburndale High Apaches would not be covered by the bill.)  At the moment, the bill appears to be bottled up in the Senate where a vote has yet to be scheduled.

During the current academic year, there are still 38 Wisconsin high schools that use Native American team names, including the above-mentioned Auburndale and the all-Native American Menominee High School.  No school uses a racially-related team name referring to a group other than Native-Americans.

THE NATION’S CAPITAL.  In Washington, D. C., the Supreme Court’s refusal late last year to review a lower court holding dismissing the 1992 Lanham Act challenge to the Washington Redskins trademark filed by Native American activist Suzan Harjo has not ended the Redskins problems.  Harjo’s suit was ultimately dismissed on the basis of laches—Harjo and her fellow complaints had waited too long to challenge the 1967 trademark registration by Pro Football, Inc., the corporate name of the Washington NFL team.

However, a new effort to invalidate the Redskins trademark on disparagement grounds–Blackhorse v. Pro Football, Inc.—is currently pending before the Trademark Trial and Appeal Board.  The plaintiffs in Blackhorse are all young Native American adults who are claiming that because of their age, they had no previous opportunity to object to the mark and thus are not bared by the lower court ruling in the Harjo litigation.  More recently, a second action has been filed by different plaintiffs attacking the legitimacy of six derivative versions of the Redskins trademark—including one for Washington Redskins Cheerleaders—filed since 1992.  These actions are seeking to deny the Washington team the right to use the name “Redskins” but they are trying to prevent the team from being able to license the mark.

NORTH DAKOTA.  Finally, the debate continues in North Dakota over the right of the University of North Dakota to continue to use the name “Fighting Sioux” for its athletic teams.  The NCAA has adopted an approach that prohibits the use of Native American team names and logos unless the tribal group bearing the name in question approves.  (More generic team Native American names like Indians, Braves, or Redmen are limited to those colleges like UNC-Pembroke or Haskell University that were founded as colleges for Native Americans.)

The problem in North Dakota is that one of the state’s two Sioux tribes (the Spirit Lake Sioux) has authorized the use of the name but the other (the Standing Rock Sioux) has not.  The State Board of Higher Education had ordered the University to begin phasing out the nickname on November 30 unless it secured the permission of both tribes.  However, the situation has reached a standstill, and the University is still using the name.  (The Fighting Sioux ice hockey team is one of the favorites in the current NCAA championship play-offs and the team squares off against Yale in a first round game on March 27.)

At the moment a number of Native-Americans are fighting to allow the University to continue its use of the name.  A petition signed by 850 members of the Standing Rock Sioux tribe is currently in circulation as pro-nickname members of the tribe try to force their leaders to schedule a plebiscite on the issue on the reservation.  (The Standing Rock Sioux also elected a pro-nickname council president last year.)

At the same time, eight members of the Spirit Lake Sioux have filed suit against the state arguing that they will be harmed if the University of North Dakota drops the Fighting Sioux nickname and that under an earlier settlement agreement between the NCAA and North Dakota, approval of the name by the Spirit Lake Sioux was sufficient for its continued use.  Their request for an injunction was denied by the state district court, but the appeal in Davidson v. State is currently before the North Dakota Supreme Court.  Apparently no action will be taken until the court rules.  Oral argument in the case is scheduled for tomorrow (March 23).

Bad Omens for Wisconsin in the Race to the Top

Posted on Categories Education & Law, Milwaukee Public SchoolsLeave a comment» on Bad Omens for Wisconsin in the Race to the Top

The U.S. Department of Education is expected to announce by the end of this week the finalists for the Race to the Top grants that have been dominating national talk about education lately. Forty states, plus the District of Columbia, put in proposals to get some of the huge pie of $4.35 billion to be awarded for the what federal officials conclude are the most potent proposals for raising achievement in schools and cities where results until now have been poor.

Don’t expect Wisconsin to be among those tapped to move into the next stage of the first round of grants.  

At least two national bloggers who keep eyes on the process made predictions this week on who will stay in the running, and neither picked Wisconsin. Bloggers on the widely-read Education Week Web page picked Florida, Louisiana, Massachusetts, Illinois, Tennessee, Rhode Island, Delaware, Indiana, Minnesota, and Colorado as finalists, and projected Florida, Louisiana, Massachusetts, Illinois, and Tennessee, as the states that would get first round grants that could run to $100 million or more.

Thomas W. Carroll, who blogs for the City Journal Web site, picked seven states as the most likely to win shares of the Race to the Top money. They are Florida, Louisiana, Tennessee, Colorado, Georgia, Delaware and Michigan.

There will be a second round of grants later this year, but Wisconsin is not likely to be in the center of contention then either, unless something happens that makes the state’s proposal appear like it’s going to change the status quo in more dramatic ways than the current proposal suggests. Continue reading “Bad Omens for Wisconsin in the Race to the Top”

The Legacy of the Little Rock Crucible

Posted on Categories Education & Law, Race & Law, Speakers at Marquette1 Comment on The Legacy of the Little Rock Crucible

little rock 9“That crucible moment” – that’s a phrase Ernest Green used to describe the period when he and eight other African American students enrolled in and attended Little Rock Center High School in 1957. It took the president of the United States and 10,000 soldiers to help them get in the door in deeply segregationist Arkansas. But more than anything, their success took the determination and self-control that the nine showed against almost overwhelming opposition and hate. The events of that fall became a huge landmark in the fight to end official segregation. 

I didn’t expect to be as moved as I was when six of the nine took the stage at the Varsity Theater this week to receive Marquette’s highest honor, the Pere Marquette Discovery Award, from Father Robert Wild, S.J., the university’s president. 

Maybe it was because I was just barely old enough at the time – I was seven – to have the television images from Little Rock permanently planted in my mind. And here they were, in person.  Continue reading “The Legacy of the Little Rock Crucible”

Parents Before Their Time

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The pregnancy rate among teenage girls is on the rise in the United States, according to a new study released by the Guttmacher Institute (a nonpartisan, nonprofit group). The study examined the most recent statistical data available, and concluded that the pregnancy rate among teenagers aged 15-19 rose three percent in 2006. It had been previously reported that the teenage birthrate was up in 2006, but there was speculation that this might simply mean that more girls carried their pregnancies to term rather than seeking abortions. The Guttmacher study is especially noteworthy, because it looked at data for both teenage birthrates and rates of abortion: since the teenage birthrate increased four percent in 2006 and the teenage abortion rate increased one percent in 2006, it does show an overall rise in teenage pregnancies.  Continue reading “Parents Before Their Time”

Garcetti, Academic Freedom, and Public School Teacher’s Right to Free Speech

Posted on Categories Education & Law, First Amendment, Labor & Employment Law3 Comments on Garcetti, Academic Freedom, and Public School Teacher’s Right to Free Speech

Scales-red In Weintraub v. Board of Education of the City of New York, No. 07-2376 (2d Cir. Jan. 27, 2010), the Second Circuit, in a 2-1 decision, has delivered a body blow to the First Amendment speech rights of public school teachers.

The case concerns a fifth-grade teacher who was dealing with a disruptive student throwing books at him on multiple occasions. When the school administrator refused to take disciplinary action against the student, the teacher filed a grievance with his union.  The school allegedly responded by retaliating against the teacher and eventually, firing him.  (BTW, all of this happened from 1998-2000, and the Second Circuit decision just came out in 2010; something about justice delayed is justice denied keeps popping into my head.)

The majority decision, written by Judge Walker, recites the holding of Garcetti (U.S. 2006) (the bane of my existence) that public employee speech pursuant to an employee’s official duties receives NO First Amendment protection. In Weintraub, the “speech” being examined was the grievance filed by the teacher with his union.

The Court held that the employee’s grievance was “pursuant to” his official duties because “it was ‘part and parcel of his concerns’ about his ability to ‘properly execute his duties,’ as a public school teacher — namely to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning.”  Continue reading “Garcetti, Academic Freedom, and Public School Teacher’s Right to Free Speech”

Princeton Review: Get Ready for the College for Working Families

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NationalLaborCollege Thanks to Daniel Mitchell, Professor-Emeritus at the UCLA Anderson Graduate School of Management, who brought to my attention this article by Steve Kolowich entitled: A Historic Union?  (January 15, 2010, Inside Higher Ed).

Here’s a taste:

A month after completing its first foray into online higher education by acquiring the distance education provider Penn Foster, the Princeton Review has set its next goal: to help create the largest online college ever. And it thinks it can do it in five years.

The company announced yesterday that it is entering into a joint venture with the National Labor College — an accredited institution that offers blended-learning programs to 200 students, most of whom are adults — to establish what would be called the College for Working Families. The college would offer courses tailored to the needs of union members and their families, beginning this fall. Continue reading “Princeton Review: Get Ready for the College for Working Families”

Garcetti in Higher Education? Not So Fast

Posted on Categories Constitutional Interpretation, Education & Law, Labor & Employment LawLeave a comment» on Garcetti in Higher Education? Not So Fast

Scales-red Thanks to Dennis Nolan (South Carolina) for bringing to my attention this decision from California discussing whether the Garcetti First Amendment free speech case applies in the higher education context.  Garcetti held that public employees speaking pursuant to their job duties have no First Amendment free speech protection.

F.I.R.E. (Foundation for Individual Rights in Education) has this article on Sheldon v. Dhillon, No. C-08-03438 RMW (N.D. Cal. Nov. 25, 2009):

[I]t is heartening to report that a federal court in California has rejected a community college district’s attempt to apply Garcetti to strip a professor of First Amendment protection for her classroom speech. In Sheldon v. Dhillon, No. C-08-03438 RMW (N.D. Cal. Nov. 25, 2009), the federal district court ruled, contrary to the college district’s argument, that the professor, June Sheldon, did not lose her First Amendment rights merely because her speech took place during classroom instruction. Sheldon lost her adjunct science teaching position at San Jose City College as well as the opportunity to teach courses the next semester following remarks she made to her class about the “nature versus nurture” debate with regard to why some people are homosexuals. Though her comments were part of a class discussion about the topic, some students complained that the way she embraced the “nurture” side of the argument was offensive, leading the college to take the adverse employment actions against her. (FIRE took up Sheldon’s case in 2008.)

In Sheldon’s subsequent suit under 42 U.S.C. 1983 (a federal statute providing a cause of action for the vindication of federal constitutional and statutory rights), the federal court rejected the college’s argument, based on Garcetti, in favor of dismissing Sheldon’s First Amendment claims altogether. Crucially, the court observed that “Garcetti by its express terms does not address the context squarely presented here: the First Amendment’s application to teaching-related speech. For that reason, defendants’ heavy reliance on Garcetti is misplaced.” The court opined that the “precise contours” of the First Amendment’s reach in this context are “ill-defined and are not easily determined at the motion to dismiss stage.”

I think both from a precedential standpoint and a policy standpoint this decision is on the way to the right result.  First, Garcetti expressly chose not to rule on whether its ruling applied in the academic context.  Second, Supreme Court cases as far back as the 1950s have emphasized the need for academic freedom, including the right to freely say what one thinks in the classroom environment.

To be sure, this decision just gets the case by a motion to dismiss, but I agree that it is heartening that the court might treat academic public employment different from other forms of public employment suffering under the holding of Garcetti.

Political Clout and the Lack Thereof

Posted on Categories Education & Law, Milwaukee Public Schools1 Comment on Political Clout and the Lack Thereof

It’s a basic tenet of American political systems that there are checks and balances, with each branch of a government unit  operating with powers that are not controlled by other branches.

Consider what is about to unfold in the Wisconsin Legislature a particularly vivid lesson in that.

Gov. Jim Doyle has called a special session of the Legislature for Wednesday to consider two proposals, one of them dealing with control of Milwaukee Public Schools, giving almost all of that control to the mayor of Milwaukee, and one dealing with what to do about chronically low performing schools in the state, giving broad power to the state superintendent of public instruction to take control of such schools and change them.  

A month ago, President Barack Obama and Secretary of Education Arne Duncan came to Madison to make an appearance that had a strong subtext of urging that these proposals be supported. Doyle strongly backs them, as does Milwaukee Mayor Tom Barrett.

So you have the president, the secretary of education, the governor and the mayor of the state’s largest city, all of them Democrats, asking the Democratically-controlled Legislature to take up and approve these ideas.

And what’s most likely to happen? Nothing, at least for now. Continue reading “Political Clout and the Lack Thereof”

Leading More Parents to Be Teachers’ Allies

Posted on Categories Education & Law, Media & Journalism2 Comments on Leading More Parents to Be Teachers’ Allies

teacherEvery now and then someone says something that really sticks with you. About a year ago, I had a conversation with Harriet Sanford, president and CEO of the NEA Foundation, the philanthropic arm of the huge, nationwide teachers union. The foundation has made Milwaukee a major focus in recent years, giving more than $2 million to Milwaukee Public Schools, generally for developing the skills of teachers in low-performing schools.

Sanford was describing how things were going in other cities where the foundation was involved. She was enthusiastic about the impact in Seattle of a program in which teachers worked to get parents more involved in schools.  It was having documentable positive effects on how kids were doing.

I said that I thought a lot of teachers do what they can in school to meet kids’ needs, but basically throw up their hands when it comes to doing something about kids’ lives at home or motivating parents to do a better job of being allies of their children’s success in school.

Sanford said she was convinced that things could be done, that they didn’t cost a lot, and they could be as simple as having teachers pay visits to children’s homes, just to establish rapport and give some tips on what helps get a kid ready for school.

It may make me sound naive, but this really had an impact on my thinking about teacher-parent relations. I just had kind of written that off. But maybe we don’t need to despair about this, and maybe schools in Milwaukee that have been too passive about reaching out positively and firmly to parents.

All of which is to say I was very pleased to see the Journal Sentinel series this week, “Beyond the Bell: Making the Home-School Connection.” Continue reading “Leading More Parents to Be Teachers’ Allies”

An Academic Expert Weighs in for Mayoral School Control

Posted on Categories Education & Law, Milwaukee1 Comment on An Academic Expert Weighs in for Mayoral School Control

Professor Kenneth K. Wong of Brown University and several associates put out a book two years ago titled “The Education Mayor: Improving America’s Schools,” which immediately became the book to read if you were interested in mayoral control of public schools. And Wong is probably the number one figure in academic research about how mayoral control works.

The book was the most thorough examination of the results of efforts to give mayors control – or at least strong roles – in schools in dozens of cities across the United States. And there was something in it for pretty much everybody – supporters of mayoral control focused on conclusions about greater administrative effectiveness in such systems, critics pointed to conclusions that the impact on academic achievement had been generally small in most cities.

But Wong was in Milwaukee this week and, in a presentation to about 25 people at the Milwaukee Athletic Club, came down firmly on the side of mayoral control, including in Milwaukee. In his talk and in an interview following his talk, Wong said data that have come in since the book was written has been increasingly encouraging for mayoral control advocates.  Continue reading “An Academic Expert Weighs in for Mayoral School Control”

$250 Million Worth of Fuss

Posted on Categories Education & Law, Milwaukee, President & Executive BranchLeave a comment» on $250 Million Worth of Fuss

The U.S. Department of Education released the final rules Thursday for the high-stakes competition called the Race to the Top. That’s the $4.35 billion in grants to be given out in the next year to spur states to take major steps aimed at improving a host of aspects of schooling, including the quality of teachers and the quality of education options open to children, especially those in historically low performing communities.

How much is at stake? Included in the material was a list of how much each state could potentially receive. For Wisconsin, the figure was $150 million to $250 million.

It is unlikely Wisconsin actually will get that much. It appears there are some points where Wisconsin will score well (atmosphere for creating charter schools), and other points where Wisconsin will not do well (track record on closing achievement gaps, such as the one between white and black students). Continue reading “$250 Million Worth of Fuss”

“I’m a Dominating Bully”

Posted on Categories Education & Law, Speakers at Marquette2 Comments on “I’m a Dominating Bully”

“I’m a dominating bully” — how often do you hear sentences like that? For that matter, how often do you hear the voices of teens, no matter what they are saying, at conferences aimed at dealing with issues involving young people?

The involvement of high school students as presenters at the sixth annual Restorative Justice Conference at the Marquette Alumni Memorial Union Tuesday was one of the reasons the day-long event, attended by a capacity crowd of about 350, was a success. The conference was sponsored by the Marquette Law School Restorative Justice Initiative.

Three students from Milwaukee’s Custer High School, two girls and a boy, didn’t offer research evidence or a PowerPoint presentation. They just described incidents they have been involved in as bullies and as victims, gave their thoughts on why students act the way they do — and held the rapt attention of the audience.

All three are part of the Violence Free Zone project at Custer, run by Running Rebels, a local organization that aims to direct teens away from violent behavior.  Continue reading ““I’m a Dominating Bully””