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Justin Bathon on Monday, July 26, 2010 at 12:31PM Dean O'Hair and I presented on P20 to the Kentucky Association of School Administrators last Thursday at the Galt House in Louisville. As always, I recorded it for later viewing and, remember, you can subscribe to all my lectures on my iTunes channel.
Justin Bathon on Tuesday, July 20, 2010 at 10:30AM Last week I presented to the Kentucky School Board's Association, Council of School Attorney's here in Lexington. I was asked to present on online resources for both educational attorneys and administrators. Below is the presentation that I gave (rerecorded after the session because of technical difficulties). It contains some research Kevin Brady and I did on educational law research as well as my take on how the information revolution is changing how legal information is distributed, focusing especially on what Google Scholar's new inclusion of legal information might mean. The materials and links I used in the presentation are below the video. Enjoy:
CSBA Summer 2010
(You have permission to share & add content at this location - http://bit.ly/avjQIq)
Lexis Education Law Wiki - http://wiki.lexisnexis.com/academic/index.php?title=Education_Law
Wikipedia - http://www.wikipedia.org/Justia Education Law Blog Directory - http://blawgsearch.justia.com/category.aspx?catid=1889
ABA Blawg Directory - http://www.abajournal.com/blawgs/education+lawJustin Bathon on Thursday, July 15, 2010 at 9:13AM Perry Zirkel filled in for Valerie Strauss at the Washington Post blog, The Answer Sheet, a couple days ago and wrote a provocative post about the law v. lore in teacher tenure. Perry (who I love is jumping on blogging - what a perfect medium for him) makes some great points that the law of teacher tenure is not as ironclad against dismissing teachers as most educators assume. I teach this to my future administrators all the time. Perry also makes a good point that litigation resulting from dismissal cases frequently goes the district's way. Certainly, as is almost always the case, the law is geared to support the school in these cases. So, as is always the case with Perry, he makes some great points and actually points to data to back it up.
But, I have 2 small issues with how Perry frames this issue and a different recommendation as to how to achieve the desired result.
First, I think Perry himself also inflates what tenure actually is legally. As a legal matter, it is simply a contractual automatic renewal provision - and nothing more. For me, tenure is even less than what Perry described, as the due process that is associated with the tenure system is, really, in addition to and distinct from this simple contractual provision. Thus, even Perry in his post I think unnecessarily inflated what tenure really is as a legal matter.
But, second, whether it is law or lore or something else ... the existing, practical, everyday policy of teacher tenure is construed as some type of block against dismissing teachers. Educators that have practiced, and certainly those in union districts, know the power and reverence the word tenure conjures in most educators. If the law is that substantially different from the everyday policy, then can't we say there is some type of problem with the law? I would argue that the law is not what is written but what is implemented and it is the lore of tenure that is currently the law in schools.
I, too, personally sort of like the black-letter law behind teacher tenure and I think if it were properly implemented as written and understood by lawyers we would have a very different dismissal system in schools. But this law has been around for a long time and if we don't have a proper understanding of it now, how can we assume that there will be a better application in the future?
Thus, for me, perhaps the best solution is just to simply delete the word "tenure" from the process and change nothing else - including the written law - thus supplanting the lore back with the actual law. If the law is simply a contractual automatic renewal provision, why can't we say a teacher has achieved automatic renewal instead of using the word tenure? All the mental baggage is then gone and dismissal is viewed, properly, as the distinct process that it truly, legally, is. That would allow us to move on to debating the real issue, perhaps, that is the due process provided to teachers by states and union contracts. Slightly adding or subtracting to those due process procedures is a much easier, and more politically palatable, option for reform than attacking the legal lore of teacher tenure.
Justin Bathon on Tuesday, July 13, 2010 at 12:29PM So ... clearly we are on a bit of a summer break here at the Edjurist (well, for me a twins break, anyway). Its been a couple years since the blog has had a vacation, so hopefully you'll be forgiving. We'll be back in full this fall and sporadically in between. In the meantime, don't forget about our friends around the web. Check out my ed. law blogroll and give them a chance to impress you in the meantime. Also, don't forget about our friends in the CASTLE blogging team. Finally, I'm still quite chatty on Twitter, so you can check that out or, even better, jump on and chat with me (especially if you are on at 2 am and willing to distract me from giving bottles).
Justin Bathon on Thursday, June 17, 2010 at 9:32PM 
ELA's facebook page is at 99 members as I write this. We want to blow past the century mark, so please consider clicking on the follow button (don't worry, ELA doesn't pepper your wall with posts everyday). And, while you are there, be sure to check out Cate's latest video announcing details about the Vancouver conference. You might even be so bold as to share something yourself (we like hearing updates from our ed. law friends or the latest ed. law news).
Plus, if you are going to Vancouver, you might want to consider signing up for the pre-conference 4 hour session that Susan Clark and I will be doing on technology based legal issues with students and teachers. I will be talking about how technology is changing the practice and rules of teaching while Susan is going to address lots of legal issues related to student technology usage, for better and worse.
Anyway, just a little update ... now back to regularly scheduled programming.
Neal Hutchens on Friday, June 11, 2010 at 8:28AM Some recent stories on for-profit colleges caught my attention and made me think about how states and the federal government increasingly have some important regulatory decisions to make regarding this sector. The first story involves proposed rules seeking to address concerns over student loan debt levels and default rates of those enrolled in for-profit schools. Proposed “gainful employment” regulations would withhold funding from for-profit institutions enrolling too many students likely to earn salaries that wouldn't be high enough for them to repay their loans based on projected student debt levels. Not surprisingly, for-profit institutions are challenging the expanded regulation and argue that distinctions shouldn't be made between for-profit and non-profit institutions. While for-profits can point out some similar problems with non-profit institutions, the default rates are indeed much higher among for-profit schools.
Even as the latest wrangling over regulation of for-profit colleges goes on, other stories made me think about how the growth of this sector has and will continue to change higher education. Wal-Mart has announced plans to partner with a for-profit school to provide classes to its employees (they would get a reduced tuition rate), and I suspect that a number of non-profits wouldn’t look down on the up to $50 million that Wal-Mart reportedly may spend in the next three years on this venture. Given Wal-Mart's size, this may be a model that influences other corporations so it's something to watch. I also noticed that one of the two-year schools in Kentucky has announced that students can now earn some credits through StraighterLine, which offers pre-packaged classes at $39 a pop after an enrollment fee of $99, according to the company's website.
While many in the non-profit higher education world like to ignore these institutions and would just like to have them go away, this doesn’t seem likely and ignoring them is becoming harder. For-profit colleges account for up to 10 percent of the students enrolled in higher education. Just look at the University of Phoenix to better understand this trend in the growth of for-profit schools. It has enrollment numbers that are flirting with the half million mark, and I’ve noted with interest how I now see cars with Phoenix bumper stickers. . . . And don’t forget the University of Phoenix Stadium.
So, no grand observations on my part for now, but the stories reminded me of the growth of for-profit colleges, how the for-profits are continuing to alter the higher education landscape, and how some really important regulatory issues exist regarding these institutions.
Scott Bauries on Wednesday, June 2, 2010 at 6:46PM Both our Justin and the very justifiably well-respected school finance economist Bruce Baker have weighed in from different, and equally enlightening, perspectives as to the legal problems (read: certain lawsuits) that would result from instituting systemic value-added assessment-based teacher dismissals and demotions (including de-tenuring tenured teachers). Here, I add my two cents as a former (defense) litigator of these very sorts of issues in Florida.
First, I wholeheartedly agree with both Justin and Bruce that a flood of lawsuits is certain to occur (one roughly the same size as the flood of dismissals and demotions that occur). Simply put, if you fire people, and they think their firings were unfair, then you are going to be sued. Period. In fact, I think that these lawsuits will assert not only claims under the Due Process Clause and Title VII, as Justin and Bruce explain, but also under ordinary state contract law, and possibly in some states (including Kentucky), claims under state constitutional provisions forbidding "arbitrary" governmental action. This certainty of a litigation explosion alone ought to give policy makers pause when they consider their "blame the victim" strategies for improving teaching. In fact, if I were general counsel of a school district, I would advise the administrators to run. Run fast, away from this. However, assuming that district political officials ignore their general counsels (which they sometimes do), would such suits ultimately succeed? It may be surprising, but except for the rare "unconstitutional arbitrariness" claim that might succeed in a state such as Kentucky, I'm not so optimistic for the plaintiffs. Here's why:
As to any contract-based claims, these would likely just be throw-aways to add to the complaint. Any decently represented district will cover value-added demotion and dismissal as an explicit term of the teacher contact (dealing with the union on this brings up a whole separate issue, of course).
As to the Due Process claims, Bruce makes some very forceful and valid points regarding the validity of the value-added model of assessing teacher performance, and he is, of course, the expert on that topic. However, a claim for wrongful termination in violation of the Due Process Clause is a claim of denial of legal procedures--nothing more. The "property interest" in one's teaching job is simply a threshold showing that has to be made before one can even begin to argue that the proper procedures were denied. Under well-settled precedent, a school district complies with the Due Process Clause as long as it offers teachers (1) sufficient notice of impending termination or demotion; and (2) an opportunity to be heard (usually in a hearing before the Board or its designate). Typically, districts also provide a right to counsel and a rudimentary appellate system. Now, the flaws that Bruce identifies would of course be relevant to such a proceeding, but if the decision were to stand after several layers of hearings in spite of such statistical evidence, then the teacher would be left with a very weak due process claim, regardless of the decision's substantive correctness as a matter of measurement.
As to the disparate impact claim, although I agree with much of Justin's analysis, I must disagree with the claim that school districts would have a hard time showing their policies to be neutral. The neutrality that matters in these cases is facial neutrality, and there is nothing race-based on the face of any such policies. Any race-based effects must be proven statistically. That being said, both Justin and Bruce are surely correct that substantial statistical disparities would result from the use of such measures, and these disparities would be largely based on race.
However, to survive a disparate impact claim (i.e., to win at summary judgment), the district would only have to show that the value-added measures were (1) job-related; and (2) consistent with business necessity. The first element would be a no-brainer. However flawed, a measurement of student learning gains is clearly related to the job of being a teacher. The second element would be somewhat problematic for districts if an expert witness were prepared to offer Bruce's methodological critiques. However, even these critiques concede that some useful, effectiveness-related information can be gleaned from such measures, and in such a case, the court will only be concerned with whether the district was ever presented with a race-neutral alternative that was just as effective at accomplishing the employment-based objective, but was rejected or not considered by the district. Do such equally effective, race-neutral measures of teacher effectiveness exist (I honestly do not know)? If not, then the district would at least have a decent chance of successfully defending its use of value-added, despite its flaws.
Again, none of this means that there would be no lawsuits. Every fired or demoted employee who perceives the sanction to be unfair sues. However, a few high-profile federal circuit court decisions could douse a litigation explosion pretty quickly.
Justin Bathon on Wednesday, June 2, 2010 at 5:18PM Bruce Baker, a professor at Rutgers and one of the best educational statisticians in the country, wrote a fascinating post today about potential legal issues arising from the movement to base teacher evaluations on gains on student assessments. This post is based on that one, so please go read it first if you plan to continue ...
Being a fellow blogger in the CASTLE blogging network, he asked for my feedback, so I wrote this in reply:
Bruce,
You are exactly on point. Both are legitimate legal problems, with the disparate impact being more of the slam dunk in my opinion. The disparate impact numbers would be off the charts and states would have a very difficult time establishing that it is a neutral policy. You start tying that in with school finance stats and other characteristics like age of school buildings and the picture is going to get very dark, very fast (no pun intended). This would have to be a disparate impact case, though, not a disparate treatment case (http://bit.ly/GpQJp) and since it is disparate impact, a class would likely be formed -- i.e. someone would need to invest money on the front end of this case to organize it - thus, the NAACP or some kind of organization like that would probably get involved.
The Due Process argument would be a harder (and much less profile) case, but it could be brought individually ... so we might start seeing a whole lot more of these. Your identified problems in the statistics I think are great, but you are one of the best statistical minds in the education field. Your average joe-blow lawyer would have a really tough time making that case. And, as long as these cases stayed at the district court level, that case would have to be made over and over and over again by lawyers in each distinct community within each distinct state. If those cases rose to the level of the Circuit courts or the Supreme Court, that would save lawyers some work, but it would still be a costly case to put together and perhaps not worth it to the teachers. Anyway, I think you are right on with the legal analysis, but I think a lot of things in the US don't make statistical sense, but the legal system is just not competent enough to always tease that out.
Another legal problem this would create is that if teacher evals were 50 or 51 percent based on test score improvements ... it would make it even more difficult legally to get rid of bad teachers whose student test scores happened to go up. You can put a bad teacher in front of an AP class, and those kids are still going to excel on the test. If that bad teacher has a bad personality, treats parents badly, or any other negative qualitative component for which she would otherwise be dismissed or non-renewed, the test score based evaluation just gave that teacher a silver bullet in court. Probably like your law person there at Rutgers, I teach my principals to not give a reason to pre-tenure teachers when RIFing, because if you give a reason, then you have to defend it in court. These polices not only give a reason, but they give a reason that is largely outside of the principal's control. Even if it winds up that courts still think that 40% negative qualitative evaluation is enough to still RIF or dismiss a teacher, the number of lawsuits is likely to go up dramatically.
Generally, all this is what happens when you start forcing statistics in the legal system - which is not built for that at all. The legal system is a very qualitatively oriented system, making decisions mostly based on evidence obtained through interviews and the like. The jury, even, is a qualitative system that collectively makes a decision based on all the evidence presented. Statistics throw a wrench in all that because people react differently to numbers. They think numbers don't lie (although, of course, we know that they can and do). That's why generally, I don't love policies that seek to make decisions based solely on numbers - these kinds of things are the result.
Justin Bathon on Monday, May 31, 2010 at 8:19PM Reading a ton of cases this weekend (finishing up a Yearbook chapter that is overdue) and I am once again struck by a simple question ... as a teacher, just how stupid do you have to be to lose a lawsuit? And, I think, the answer is pretty damn stupid. It is amazing to me how many mildly stupid things the courts allow teachers to get away with. Between immunity statutes, the high Section 1983 bar, actual knowledge provisions for harassment, the lower search and seizure standard, etc., the simple fact is that the law is heavily construed in favor of the school and school employees. And, even then, in cases where it is the word of the teacher v. the word of the student ... typically the teacher wins. So, not only do you have to do something really dumb to even qualify as doing something illegal, but then there usually has to be a good deal of evidence to find for the student (as in, you can't even cover it up well).
So, seriously, it takes a really stupid act followed by a really stupid cover up on the part of a teacher to even make it to court.
Yet, in case after case, I am shocked by the ignorance of some teachers. Now, the worst of the worst make it into caselaw, so I am seeing the worst teachers in the America over the past few days. But, literally in the last year there were about 2 dozen federal cases dealing just with teacher sexual abuse of students, teachers taking searches way too far, teachers letting a student who had passed out from dehydration lay on the football field while they held a team meeting, teachers hitting kids, paddling for missing shots in a basketball game, a teacher playing on his computer while a student is forcibly undressed in front of a crowd in the classroom. And, this is just a smattering because it is only what is reported, the actual number is far, far higher.
So, seriously, what the hell is going on?
I have always defended the American teacher, been kind to teachers' unions, and generally given the benefit of the doubt. I was a teacher, so I know how it goes sometimes. But, can we all agree there is some kind of systemic problem in the teaching system that these kinds of horridly idiotic incidents continue to occur year after year after year? Something is broken. Pedophiles must be being attracted to teaching. The teacher dismissal process must be encouraging misbehavior. Professional standards boards must be woefully inadequate. Colleges of Education must be totally missing the boat in screening these folks. Maybe all of these things, but, something, clearly, is wrong.
We cannot continue to permit these flatly ignorant humans to enter the teaching force.
Gina Umpstead on Wednesday, May 26, 2010 at 9:28PM Earlier this month the Michigan Legislature passed a new law affecting Michigan's retirement system for teachers. The new law makes three significant changes: (1) offers an incentive for teachers who retire by September 1, (2) requires teachers to start contributing 3% of their salary into a retiree health plan and (3) creates a hybrid defined benefit and defined contribution plan for new school employees (i.e. those hired after July 1, 2010). Up to this point, Michigan public school teachers, except for those working in public school academies (Michigan's version of charter schools), participate in a defined benefit retirement program. New teachers will automatically have 2% of their salaries deducted for their defined contribution retirement plan, unless they choose to opt out.
The news reports say that up to 50,000 teachers in Michigan are eligible to retire under this incentive. This is almost 1/2 of the 103,000 teachers in this state. So it could potentially have a large impact on our teaching force. The hope is to reduce costs for districts that are struggling financially by getting rid of expensive experienced teachers and hiring newer less costly ones. The average teacher salary in Michigan is approximately $54,000 while the average starting salary is $35,000. The school district my kids attend said that they expect to save $30,0000 per teacher who decides to retire. Of course the Michigan Education Association predicts that the retirement incentive, a higher retirement multiplier, is not enough to get anyone to retire who wasn't already planning to. The business interests have praised the bill saying that it is a step in the right direction toward the needed structural reform in education. The State is hoping that 28,000 teachers retire.
As a public employee with a defined contribution plan, I'm okay with educators having that type of retirement plan too. Of course the recent dip in the stock market gives us all pause about our financial security in retirement. What I really don't like about this legislation is the mandatory 3% contribution for retirement health benefits because there is no guarantee that employees will actually receive these benefits in the future. In my last post on employment issues, I said that employee compensation is an issue that needs to be considered in Michigan. With this in mind, I do support the new retirement legislation as a way to address this issue without actually reducing the good wages that educators in Michigan receive. And it would be wonderful if some of the new teachers who have been waiting in some cases for years for a full-time teaching position are able to secure them. Rewarding experienced teachers with a retirement incentive is a good way to make this happen.
Here is a link to the law -- Public Act 75 of 2010 - http://www.legislature.mi.gov/(S(vb4trbrlyqcknzvtb2d3uo45))/mileg.aspx?page=GetObject&objectname=2010-SB-1227
Scott Bauries on Friday, May 21, 2010 at 3:58PM This week, a coalition of parents, students, school districts, and community groups filed a lawsuit challenging California's school finance system as violative of the state constitution's education article. The case is styled Robles-Wong v. California. When I figure out how to attach electronic documents to a post on this site, I will put up the complaint and the press packet, which Stanford Law Professor Bill Koski (who is representing the plaintiffs in the case) kindly forwarded to me last night. Keep your eyes on this one--it could be a very big deal.
Neal Hutchens on Sunday, May 16, 2010 at 9:58AM The Attorney General of Virginia, Kenneth T. Cuccinelli, is seeking documents through a civil subpoena from the University of Virginia (UVA) related to the work of a former professor at the institution, Michael Mann, who is now employed at Penn State. Mann is one of the scientists involved in what has been dubbed Climategate, an incident in which emails between climate scientists were released to the public after they were obtained from a hacked computer at a climate research center in England. Many opponents of global warming have sought to use the emails as proof that scientists have been rigging the climate change data.
An inquiry at Penn State has thus far partially cleared Mann of any research misconduct, but the Virginia Attorney General wants to investigate Mann to determine whether he defrauded taxpayers in obtaining state-funded grants while employed at UVA. While tempted to comment more directly on the motivations of Cuccinelli (this is a fellow who had to clarify, after trying to play it up with an audience, that he was not one of the “birthers” doubting whether President Obama was born in Hawaii), I’ll focus on some of the interesting legal questions raised by the Attorney General’s actions. These questions are complicated enough anyway that they make for too long of a blog post already.
At first, UVA officials had indicated that they would comply with the Attorney General’s demands, but the university is now considering its legal options to challenge the subpoena. Not surprisingly, the university has invoked the concept of academic freedom as a justification for its lukewarm response to the Attorney General, but this incident highlights the general uncertainty that currently exists regarding First Amendment protection for academic freedom.
Since the request relates to the work of an individual professor, let’s pretend that Mann was still employed at UVA and was named individually in the subpoena and wanted to challenge it on academic freedom grounds. Well, such a challenge would have to deal with the fact that it is unclear the extent to which the First Amendment protects individual academic freedom. I say unclear because I think there are some good constitutional arguments that support its existence, but many individuals already consider it a moot issue, an amusing side note to constitutional history. I don't hold to that view, but let’s just say that if individual academic freedom under the First Amendment were a patient, she or he probably wouldn’t be making any plans for too far into the future.
In fact, a professor at a public university in Virginia would face a particularly difficult challenge in asserting a constitutional claim of academic freedom. In Urofsky v. Gilmore, the U.S. Court of Appeals for the Fourth Circuit (which includes Virginia) held that faculty members at public colleges and universities possess no other First Amendment rights than those held by any other public employees. The court also stated that academic freedom, if it exists at all as a constitutional doctrine, represents a right that is enjoyed at the institutional level and not possessed by individual professors.
The challenges facing the professor would only become magnified when the Urofsky case is coupled with the Supreme Court’s decision in Garcetti v. Ceballos. In that case, the Supreme Court held that public employees do not engage in speech for First Amendment purposes when communicating pursuant to carrying out their official employment duties, though the majority opinion explicitly left open whether the decision applies to speech by faculty members. State and lower federal courts have issued conflicting decisions regarding the case’s applicability to faculty speech, but I’ve posted before on how some courts have not hesitated to apply the Garcetti standards to faculty speech.
While questions generally exist regarding whether the Garcetti case applies to faculty speech, the Urofsky decision would seem to answer this question in the Fourth Circuit. Thus, it would seem that a UVA professor would appear to have to take an individual academic freedom case all the way to the U.S. Supreme Court in order to make a successful claim based on First Amendment grounds.
Well, then, what about institutions being able to assert an academic freedom right? It appears that UVA may be exploring this option, and some commentators, with J. Peter Byrne of Georgetown University Law Center a notable example, contend that protections for academic freedom properly reside at the institutional level. And cases such as Grutter v. Bollinger (permitting race as a factor in higher education admissions) seemingly indicate some sort of judicial recognition of some type of institutional academic freedom under the First Amendment. But, and this is significant, a case such as Grutter involved a public university and a federal constitutional standard. UVA, a state institution, is facing a demand from another part of state government.
This scenario runs into what I view as the biggest problem with the institutional academic freedom position. I’m just not all that convinced that a public university would be able to assert much of a First Amendment right against another division of state government. I tend to agree with Robert M. O’Neil that it’s pretty speculative that courts would recognize much of an institutional right of academic freedom for a public institution that would operate against another division of state government. Like Byrne, O’Neil is another formidable figure in relation to academic freedom issues and, coincidentally, has served as President of UVA and is the founding director of the Thomas Jefferson Center for the Protection of Free Expression.
So, I think this incident at UVA highlights some real limits with the concept of institutional academic freedom. As politicians perhaps seem increasingly attracted to going after pesky academics and academic programs to score political points (incidents involving legal clinics in Maryland and Louisiana are two other recent noteworthy examples), there may be some very real limits (legal and political) with how far institutions are willing or able to go to protect an individual faculty member. UVA appeared ready at first to respond to the Attorney General’s request with no hesitation, and I wonder if institutions with less standing and political clout would really want to engage in this kind of legal tussle with a state’s attorney general.
While this incident involves a premier institution, just imagine a powerful state legislator angry at a faculty member at a community college or at a regional university. We often discuss academic freedom in the context of high-profile incidents, but I think its worth to society also operates on a more localized and everyday kind of way. This post is already too lengthy and I'll save some thoughts for another time, but I wonder about the long-term impact of having individual academic freedom not receiving any kind of constitutional protection, especially considering how many faculty members now work off the tenure track. The UVA incident provides a useful context to think about this issue.
Justin Bathon on Tuesday, May 11, 2010 at 6:09PM Thought I would open up some space for discussion in the comments amongst us educational law types on the nomination of Elena Kagan to the Supreme Court. Since she doesn't have a prior judicial record, it's hard to argue the merits from past cases, so please free form it and just give initial opinions or analysis. There are lots of bios out there right now, but I enjoyed this one.
Here's my initial reaction having read about 4 new stories in no particular order (so, large grain of salt necessary).
Overall, I'm okay with this pick. Luke-warm let's call it. My issue is always qualifications, qualifications, qualifications. The Supreme Court is supremely important and it is not a place that we should be playing politics. So, yes, I would have liked to see more of a judicial record, but, on the other hand, I think she has clearly worked hard and risen admirably in the legal profession to arguably one of the top jobs outside of being a Supreme Court judge ... the Dean of Harvard Law. That kind of job you just don't get by accident, so it does give me some faith in her abilities both as a lawyer and as a practical administrator. Of course, on a Supreme Court increasingly dominated by ideologues, we'll have to see how those traits serve her. My guess is not all that well when Justice Scalia launches into one of his famous rants. If I had to guess, I think she will be a consistent liberal, but one that does not take as much of the spotlight. It's a hard task to replace Justice Stevens, but then Justice Stevens had decades to hone his positions and public image. Being only 50, she will have the same opportunity. I think confirmation sails through relatively easily (the women's vote is something I think the Republicans need to pay much attention to here) and by fall we have Justice Kagan on the bench.
But, that's just my take ... what's yours? And, let's feel free to have fun with this and engage one another.
Scott Bauries on Tuesday, May 4, 2010 at 10:16AM Following up on Daniel's recent post on fundamental rights to education, I hereby issue a shameless plug for my most recent piece of scholarship, which is forthcoming in the George Mason Law Review. In it, I assess the conceptions of individual rights and legislative powers employed in both state and federal courts in constitutional cases, focusing on school finance litigation in the state courts. Interested readers can download the full-text manuscript draft here.
Justin Bathon on Thursday, April 29, 2010 at 5:06PM As we start to consider a lot of different models of education, one that is getting a lot of play is the NYC School of One initiative. I have had superintendents bring it up to me and it is getting attention in the blogosphere. Here is their overview video:
Program Overview from NYCDOE Teacher Development on Vimeo.
So, lawyers, what stood out to you? For me, it was this phrase "Individualized Learning Platform."
So, when I was teaching fresh out of undergrad I remember talking to one of the senior special education teachers in my building. We were talking about various issues and at some point I mentioned that I liked the IEP concept in special education and thought one day it will probably become the norm across all of education (remember, I was young and naive - okay, I still sort of am). Anyway, I was not prepared for the scolding that ensued. I got a 10 minute lecture on why that would be a horrible idea, that we would all be swimming in paperwork, that it would be utter chaos. So, I sort of dropped the idea. She made some good points and I was already swimming in paperwork just teaching under Title I, so I sort of resolved to agree with her for the time being. Then in law school, as I worked with the State of Illinois on special education issues, I remember thinking how impossible it would be to implement this for all children. We were barely, and I mean barely, keeping an handle on the special education system as it was, it would have literally shut the system down to add 10 times more students to that kind of system.
So, all this talk about the School of One has sort of brought me back to this issue, especially when they use language like an "Individualized Learning Platform." I want to be able to consider the idea and I want to like it, just like I wanted to like it fresh out of college. But, having now seen the stacks of paperwork and hours of due process for some students, I just can't wrap my head around how implementation of such a system would be possible, realistically. From the video they say technology is helping to bridge the gap, but what I saw was a gaping chasm, is technology really going to bridge that? Even if it does and we have electronic student records and we don't do IEP meetings and whatnot, how are we legally going to deal with a separate curriculum for each kid? I don't even know if it is physically possible, let alone practicable.
So, help me out here. How are we going to do this? Or can we?
Gina Umpstead on Tuesday, April 27, 2010 at 3:54PM If any are you going to the American Educational Research Association Annual Meeting in Denver later this week, I want to let you know about the Law & Education SIG sessions. This is where you will be guaranteed to hear about education law issues. Plus, you will be able to meet other people interested in these topics.
Saturday, May 1st Special Topics in Education Law Roundtable Session
Sheraton, Grand Ballroom Section 2 10:35 a.m. to 12:05 p.m.
Sunday, May 2nd Constitutional Considerations in Education Roundtable Session
Sheraton, Grand Ballroom Section 2 8:15 to 9:45 a.m.
Sunday, May 2nd Special Topics in K-12 Education Law Paper
Sheraton, Plaza Court 3 12:25 to 1:55 p.m.
Monday, May 3rd Special Topics in Higher Education Law Paper
Sheraton, Plaza Court 2 2:15 to 3:45 p.m.
Monday, May 3rd Law and Education SIG Business Meeting and Panel Discussion:
Legal Research and Writing for Emerging Scholars
Sheraton, Governor's Square 10 6:15 to 8:15 p.m.
Justin Bathon on Friday, April 16, 2010 at 5:24PM Okay, been a while since I wrote here. Sorry. But, I have a good excuse (or at least some excuse, probably not a good one).
;)
MY WIFE AND I HAD TWINS!!! I'm so proud of them and they are just fabulous little kids. They are small (they were pretty early), and they will spend a while in the hospital. I don't want to link to it because I don't really want Google moving it up page rankings, but if you want to see pictures of them, check out bathon dot posterous dot com.
Okay, other news (sorry, it's been pretty wild lately). Kentucky and UK were selected as a CCSSO National Education Innovation Lab. For now, I am the point person on that effort. We'll see what happens, but I am pretty excited about the recognition that we have been building something positive here at UK and that Kentucky is a state where collaboration makes a lot of really interesting things possible. Talking to superintendents lately, I'm very stoked about some specific initiatives that could help change schooling in Kentucky. I can't release much more than that at the moment, but there is a lot boiling underneath the surface.
As always, I keep cranking out the episodes of Lab Gab, our new show at UK on educational innovation. Here is the latest:
Also, I presented this argument to a group of faculty here at UK on Wednesday regarding policy change because of technology. Tomorrow, Saturday, I am keynoting a conference here where I will attempt to answer the question that I ended with in this presentation.
Remember, you can subscribe to that content as well. Lab Gab can be subscribed to here. And my lectures and legal work can be subscribed to here. Hopefully within the next month or so, I'll have my stuff more readily available at the Kentucky iTunesU store so that you can subscribe on mobile devices.
Also, just some site issues - spammers have figured out how to break down squarespace's defense, apparently, so I have closed the forum for now. Instead, if you would like to discuss something on education law, let me point you to the ELA facebook page. That is becoming a good place for that kind of discussion. So, if you are not a member of that facebook group, then join. Also, the comment spam is also getting quite annoying, so I am considering the implementation of a solution there called Disqus. The problem with disqus is that it will eliminate a lot of the old comments and it also uses a different kind of sign in, wherein you can sign in through your facebook or twitter accounts. Anyway, I wanted to throw that out there for feedback before I implemented. If anyone has a reason that I shouldn't try implementation, let me know.
Finally, sorry for the absence. We got some great activities going on here at The Edjurist and we have record levels of readership, so I want to keep my commitment to keep fresh content coming all the time.
Gina Umpstead on Thursday, April 15, 2010 at 10:49PM I had the chance to visit with Dave Cullen the author of the New York Times Bestseller Columbine who was visiting campus to speak about his book. He spent ten years investigating the story of the April 20, 1999 school massacre. The book evolved from his experience as a journalist who was on the scene within the first hour of the tragedy.
The book contains the stories of both the killers (Eric Harris & Dylan Klebold) and several of the victims (Patrick Ireland, Cassie Bernall, Daniel Rohrbough, & Dave Sanders), as it dispells many of the common myths about what really happened that day, why the murders occurred, and communicates lessons on healing and forgiveness.
Cullen is meticulous in his research and his presentation of the evidence about the events that day and leading up to the killings. He describes Eric as a psychopath who was intent on killing as many people as possible in order to prove his own superiority and just for the fun of it while Dylan was depressed and suicidal but over time bought into Eric's vision of human destruction. The boys planned the attack for over a year and their primary weapons were bombs not guns. Fortunately the main bombs did not detonate. Cullen explains that the boys were not outcasts or part of a Trench Coat Mafia and that they did not target particular groups of students; rather their intention was to kill as many people as possible. Their rampage ended with their own suicides.
The stories of the events that day provide a vivid picture of the chaos that was taking place both inside and outside of Columbine High School--the parents desperately searching for their children, the teachers and administrators grasping to understand what was happening and trying to shepherd the students to safety, and the police attempting to contain the danger and apprehend the killers.
I was enthralled as I listened to the book, in part because it is so well written, but more so because I felt compelled to find out the answers to the questions of what happened and why and what can we do to prevent something like this from ever happening again? It was such a senseless tragedy. I walked away with a lot of answers about exactly what happened and some reassurance that there were warning signs in both boys that significant trouble was brewing. Eric had a website that contained a hit list and spewed his hatred towards the whole world. Both boys were in trouble with the law for theft and vandalism. They actually kept journals and created videos that chronicled their plans. But some of the biggest lessons in the book are about forgiveness and healing and the fact that healing happens faster and more completely when the victims forgive the perpetrators. Ultimately, Cullen advises that we shouldn't rush the healing after something of this magnitude happens.
The book was so interesting, I had to include it in Edjurist. If you really want some legal lessons, the tragedy did spawn a lot of legal action. Here are some of the key legal outcomes:
Daniel Kiel on Thursday, April 15, 2010 at 1:40PM Last week, I had the opportunity to moderate a panel at the Benjamin L. Hooks Institute for Social Change’s annual conference, which was on education this year. My panel was entitled “May it Please the Court: Legal Challenges and Remedies to Address Deficiencies in Public Education.” I know, simple topic to cover in 90 minutes. Anyway, there were 3 speakers and 2 of the 3 primarily advocated for a constitutional amendment making education a fundamental right. I have discussed this topic in my course as well, providing a copy of the proposed amendment text submitted in Congress in 2009. As I listened, I was somewhat surprised to find myself wondering, “What’s the point?” After all, I am critical of the outcome in San Antonio ISD v. Rodriguez allowing for large funding disparities in part because education was deemed to be merely an important right, not a fundamental one. But, I found myself thinking that maybe the constitutional amendment discussion was a distraction from in the trenches education reform that would impact students.
The conference included other panels on classroom, school, and district restructuring and reform plans; it included in depth descriptions of innovative teacher training and teacher evaluation initiatives; it included an exploration of the role of charters in expanding the availability of quality education. Each of these other panels seemed to be truly making a difference, but the quest for a constitutional amendment struck me as so divorced from the real life impact on students as to be nearly irrelevant.
One panelist, Lynn Huntley (president of the Southern Education Foundation), made a somewhat compelling case that the quest for the amendment was more important than the amendment itself. By proposing a constitutional amendment, the argument goes, advocates are able to garner attention in order to make noise about the educational inequities that exist and, having made noise, propose other solutions with substantial impact on reducing disparities. Another panelist, Gary Williams of Loyola Law School (CA), argued that a movement akin to that which overturned Plessy v. Ferguson should be undertaken in order to overturn Rodriguez. Inspiring, intriguing, even tempting. But to what end? When we get to “education as a right” in class, my students almost universally express dismay at the thought of having educational decisions being trapped in courtrooms indefinitely even as they recognizing the moral import of classifying education as a fundamental right. It seems that the long-running legislature-to-court tennis match that happens in state courts where state constitutions provide an affirmative right to some form of education would be replicated on a national scale. Very messy. Messiness, of course, is not a reason not to pursue something (like overturning Plessy for example), but the drawbacks of messiness should not be ignored.
Anyway, as is probably evident, I have mixed feelings about this education as a fundamental right thing. What do others think? Am I missing something? [note the irony of my criticism of the amendment path as a distraction from in-the-trenches reform ending with a question inviting others to distract themselves from in-the-trenches reform by commenting on the amendment path – sorry]
Justin Bathon on Thursday, March 25, 2010 at 7:45PM 
Well, amongst friends back here at the blog, I'm happy to release my new show, Lab Gab. Okay, yes, dorky title but seriously, got a better idea? (And, seriously, I actually am a dork.) It's hard coming up with the name of shows. At least it is more original than what I did here at the blog, EdjuristTV.
Anyway, as some of you know, I have been devoting a lot of time lately to a new project here at the COE called P20. Actually, it's called the Kentucky P20 Innovation Lab: A Partnership for Next Generation Learning. You can read more about it here. I think my official title is the Director of the Technology Leadership Lab, but I can't be sure yet. Chances are pretty high this is going to get me fired (anyone need a school law guy with tech skills, keep me in mind!) but it's fun, I think it can help, and we only live once so I'm doing it. Hopefully the twins will be at least a couple years old before the whole thing officially fails and they run me out of Kentucky on a rail, so moving won't be so hard on them and they'll never know the shame their daddy had in the Commonwealth. (Kidding, of course, you Kentucky folks -- don't be so serious!).
So, as part of P20 we are working with the Kentucky Department of Education on developing a new learning platform using the iTunes U format. Lot's of universities have developed this kind of platform, but P12 is just starting to get into it and Kentucky will be a leader on this front. But, the new platform is going to need a content stream and I had been thinking of starting a new show lately anyway, so I thought I would take advantage of this fortuitous happenstance. I did include a legal component (called "Let's get Legal with It"
So, without further ado .... I present Episode 1 of Lab Gab.
Risking even further embarrassment, I'd be interested in your thoughts. Good, bad, otherwise. It'll be a weekly thing, so you'll have to endure more of it at least until I generate a substantial audience of it's own.
If you are really weird and happen to like it, you can subscribe to the show via iTunes, miro, channels, or just simple old rss (show page) or rss (Lab Gab blog and comments).
Aren't we living in fun times? When a professor can thoroughly embarrass himself to the whole world so cheaply?
