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The information on this site does not constitute legal advice and is for educational purposes only. If you have a dispute or legal problem, please consult an attorney licensed to practice law in your state. Additionally, the information and views presented on this blog are solely the responsibility of Justin Bathon personally, or the other contributors, personally, and do not represent the views of the University of Kentucky or the institutional employer of any of the contributing editors.


Auburn Looking for Education Law/Finance Expert

It is late in the typical job cycle for the year, but Auburn University has posted an assistant professor position in education leadership with a focus on education law and finance. The position is such that I think they would hire a new graduate potentially, depending on the pool.  

This would be a great job. I know some of the team members at Auburn and they are a strong program, at a strong university, and only a couple hours from the beach! 


Private Eyes: FERPA and Student Data Security Breaches

It is something of a truism to say that data collection is integral to individualizing student learning, providing educators with immediate feedback on the success of pedagogical delivery methods, and supporting successful educational methods with evidence-based rationale. To serve these important goals, states now have large-scale longitudinal information systems and upload large quantities of student data in an effort to track student performance over time. [1] Even local school districts now contract with third-party providers of database management, [2] storing everything from contact information and curriculum planning, to grades, test scores, disciplinary data, Social Security numbers, health information—representing extremely confidential information. [3] But, as with all data, when this information is not properly guarded, it is low-hanging fruit for the unscrupulous digital underworld. [4]

It should be noted that recent changes to the Family Educational Rights and Privacy Act (FERPA), relaxed security measures for this data. For example, under the prior regime, schools were required to obtain parental permission before sharing information in their school’s educational record. [5] Now, schools may disclose directory information (such as name, address, phone-number)—even to third-party vendors—so long as parents are provided the opportunity to opt out of any such releases. [6] But a concern greater than third-party vendor access to student information is that security breakdowns in confidential student data, particularly P-12 student data, may result in identify-theft fallout, which may not be known for years.

The call for safeguards to student data [7] exposes the shortcomings of the latest changes to the FERPA regime. While debate may continue over whether a student or student’s family’s ability (or right) to limit who collects or maintains information, including the data that companies and schools collect and retain, at the very least, students should have a right to responsible, secure data collection practices. A lot of ground lies between codifying this right into FERPA and granting a private right of action for violations of FERPA (which is currently unavailable to a victim of a FERPA violation); perhaps, it is time that policy and law makers tilt the pendulum back in the direction of privacy.

[1] See Benjamin Herold, States Make Progress on Data Systems, Advocacy Group Reports, Educ. Week, 1 (Nov. 19, 2013), available at

[2] See Natasha Singer, Deciding Who Sees Student Data, N.Y. Times (Oct. 5, 2013), available at Yet, for a fairly nascent cottage industry, the education technology software industry for pre-kindergarten to twelfth grade represents an $8 billion market. Id. See also, Natasha Singer, Regulators Weigh in on Online Educational Services, N.Y. Times (Feb. 25, 2014), available at

[3] See Benjamin Herold, Danger Posed by Student-Data Breaches Prompts Action, Educ. Week, 1 (Jan. 22, 2014), available at

[4] In recent months, student data breaches have occurred in Loudon County, VA, Chicago, IL, Tallahassee, FL, and Long Island, NY. “The 71,000-student Loudoun County [Virginia] public schools was thrust into damage-control mode last month after an outside vendor, New York City-based Risk Solutions International, inadvertently uploaded and left unprotected some schools’ emergency evacuation plans, as well as ‘directory information’ that included students’ names, addresses, telephone numbers, dates and places of birth, course schedules, and attendance histories . . . . Last November, the [Chicago school] district reported that 2,000 students participating in a free vision-examination program offered by the city had their names, dates of birth, gender, and ID numbers, as well as information from their exams, accidentally posted online. . . . In June, the Tallahassee Democrat reported that roughly 47,000 participants in state teacher-preparation programs had their personal information—including names and in some cases Social Security numbers—posted on the Internet for two weeks last spring. The information was being stored by Florida State University. . . . The 12,000-student Sachem Central School District [on Long Island, NY] suffered three data-security breaches in recent months, including one in which the names, ID numbers, and designations for free-lunch programs of 15,000 former students were posted online, according to a Newsday report.” Herold, supra note 3. Florida State is not the only postsecondary institution to fall victim to a data breach; Indiana University has spent more than $80,000 responding to a data breach that exposed the names, addresses and social security numbers of students enrolled at any of the IU’s campuses from 2011 to 2014. Data Breach Response Costs IU More Than $80,000, Diverse Issues in Higher Educ. (March 17, 2014), available at

[5] See, generally, 20 U.S.C. § 1232g (2007); Parents’ Guide to the Family Education Rights and Privacy Act: Rights Regarding Children’s Educational Records, U.S. Dept. of Educ., Oct. 2007, available at

[6] See, generally, 20 U.S.C. § 1232g (2011); Revised FERPA Regulations: An Overview for Parents and Students, U.S. Dept. of Educ., Dec. 2011, available at

[7] In December 2013, the Electronic Privacy Information Center, a Washington-based nonprofit, filed a complaint with the Federal Trade Commission accusing the popular financial-aid website of selling sensitive student information to third-party marketers without adequate disclosures. See Herold, supra note 3. To that end, Common Sense Media announced a new initiative last week to encourage the educational technology industry to safeguard student data from falling into the hands of corporate interests. See Ben Kamisar, Group Calls on Companies to Safeguard Student Data, Educ. Week (Jan. 22, 2014), available at See also Valerie Strauss, Why a ‘Student Privacy Bill of Rights’ is Desperately Needed, Wash. Post (March 6, 2014), available at; Adrienne Lu, Protecting Student Privacy in the Data Age, USA Today (Dec. 17, 2013), available at



Should an Educational Leader's Testimonial Speech be Protected?

Imagine that you are an educational leader hired to head up an important community college program for at-risk youth.  In your first days on the job, you do what any good leader does and audit the books.  Through this review, you discover that you have an employee who is drawing a large salary from the program, but is not doing much, if any, work.  You do some further digging, and you realize that this "employee" with the "no-show" job is also a sitting state legislator.  You care about your fiduciary duty over the public money you've been entrusted, so you confront the no-show employee and request that she begin showing up and working.  She not only refuses, but also threatens your livelihood.  You are not a coward, so you fire her.  Not only that, but when subpoenaed, you testify truthfully against her in her criminal trial once the feds discover her fraud.  Soon after, you are fired. 

You file suit against your former employer to challenge your termination as retaliation for your speech as a citizen on a matter of public concern.  But the District Court, and later the Circuit Court of Appeals, reject your challenge, citing the Suprme Court's recent decision in Garcetti v. Ceballos.  In Garcetti, the Court held that, "when public employees speak pursuant to their official duties, they do not speak as citizens, and the First Amendment does not shield their communications from employer discipline."  Essentially, speech that a public employee is hired to make is not that employee's own speech, but his work product, and may therefore be the basis of employer discipline.  The Circuit Court cites Garcetti and reasons that, because you testified only about matters you learned about at work, your testimonial speech "owe[d] its existence" to your employment, and was therefore made "pursuant to [your] official duties."  Notwithstanding the Garcetti rule, the Circuit Court proclaims that it is immaterial that your job does not require you to testify in judicial proceedings, as long as your testimony is about your job. 

Should this judicial sleight-of-hand resulting in an unbelievably expansive reading of the Garcetti exemption be allowed to stand?  In Lane v. Franks, the Court will consider the question on alleged facts similar to those in the vignette above.  Along with Professors Paul Secunda and Sheldon Nahmod, and on behalf of more than 60 other law professors, I have written an amicus brief (free download) arguing for the reversal of the 11th Circuit's flawed reading of Garcetti.  The case will be argued on April 28th, and it could have major implications for public employees--including educational employees--nationwide. 


Title IX and Teen Parents

Title IX of the Education Amendments of 1972 states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Since the passage of Title IX, school officials have been scrambling to ensure a documentable degree of equity between genders in every aspect of public school governance.


With that backdrop, I would like to summarize a conversation I recently had with a doctoral student. This female student was a teen parent who gave birth to her first child while in high school. She is now a principal of a school for students that are either pregnant or caring for their own children while completing the requirements for graduation (often referred to as “mothers school”). Students that attend her school, all of whom are female, choose this alternative setting for a number of reasons: access to free childcare while in school, specific emotional support provided to teen mothers from both the staff and the other students, and a learning environment that validates teen mothers’ adjusted priorities.


However, a majority of those who choose attend alternative schools for teen mothers also choose to loose access to a number of services found at traditional secondary schools. For example, most schools for teen mothers do not provide their students access to advanced curriculum such as honors or advanced placement courses. In addition, those attending mother schools seldom have access to transportation services through the school district.


As I have processed these facts, I have come to the conclusion that teen mothers are being forced to choose between access to an advanced curriculum and childcare. For some teen mothers, there is no choice – childcare will always win out over other factors. The irony, and potential legal pitfall, is that the teen fathers are not being asked to make similar choices. I recall a situation when I taught high school in Utah where two juniors had a relationship that resulted in the female student becoming pregnant. She gave birth over the summer and finished her schooling in an alternative setting her senior year while raising her newborn. The father, on the other hand, was the starting fullback for the football team in the fall and graduated with his peers. The differences in how these two students were treated stemmed exclusively from their gender.


I feel like teen mothers are being excluded from participating in advanced curriculum options based on their gender and this practice appears to violate Title IX. The evidence for the claim of discrimination based on gender lies in the fact that teen fathers are not facing the same difficult choices – childcare versus AP calculus.


Virtual Snow Days

Living in Michigan, the articles about virtual snow days have caught my attention this year. We have been pounded by bad weather this season, a combination of extreme low temperatures and higher than average snowfall. My kids have already missed 8 days due to bad weather, and some districts have missed more days. 

Michigan law provides many opportunities for virtual learning for K-12 students. The legislature has authorized 5 virtual charter schools and all public school students can take 2 virtual courses per marking period (Mich. Comp. Laws 388.1621f). For more flexibility, school districts can apply for students to receive seat time waivers, so they are able to receive their education without physically attending school. Yet, the Department of Education hasn't yet addressed the idea of virtual snow days. 

Are virtual snow days possible in Michigan? Probably not.

School districts are required to provide 1098 hours of instruction over at least 175 days to K-12 students. To count instructional hours for a particular building, pupils and certified teachers must be present and engaged in instruction. This instruction must be scheduled in advance and be available for the entire student population (MDE, Pupil Accounting Manual 2013). The requirement that pupils and certified teachers be "present" most likely means "physically present" because it is referring to counting hours per school building. Therefore, Michigan would have to change its Pupil Accounting Manual to allow for virtual attendance during snow days in order for this to be possible. 

As Michigan continues to develop its online educational practices, I think this is something to seriously consider as an option to allow students to learn in a way that is less disrupted by the state's sometimes extreme weather conditions.

Here is an article about the practice in New Jersey: The article describes the practice but says schools don't know if the instructional time will actually count towards the State's requirements.


ELA Submission Deadline: March 1

Just a heads up that the ELA submission deadline is this Saturday, March 1. 

Here are the details on the conference and here is the call for papers

ELA this year is in San Diego from Nov. 3-7. See you all there. 


School Law Position at Tennessee

For those interested. 

Love to have a great school law person as my southern neighbor. 


Sanity with Zero-Tolerance (Finally)

I hate zero-tolerance policies. Always have. They are just wholly unnecessary, legally silly, probably discriminatory, generally bad for kids and, on top of all that, don't even work

So, to my delight, finally zero-tolerance seems to have the worst of it in policy circles lately. Credit to Arne Duncan and the U.S. DOE for releasing new guidance last week that tries to put the brakes on mandatory suspensions and expulsions. I think the Secretary has intelligent things to say in this release video:   

The bottom line is that the law entrusts principals and other school leaders with the discretion to make appropriate decisions toward novel situations amongst kids. These disciplinary decisions can be incredibly difficult with intense lobbying on all sides. Many tears are shed and sleepless nights suffered over how to appropriately discipline kids. But, that is the job. It is a core function of a school leader and the manifestation of the trust provided to that position in our society. To attempt locally to shirk that responsibility through the use of hastily adopted zero-tolerance policies is cowardly. The policy position may appear tough, but it actually speaks to the weakness of the proposer. 

I am glad to see the light at the end of the dark, dark tunnel of zero-tolerance. 


Complying with Copyright Just Got Easier

One of the huge areas of potential copyright violations if you are a techy like me are around images. I post images to the blog, add them into my powerpoints, upload them to sites, ... so available images to use are important to me. All those same uses also apply to our kids and teachers in schools everyday.

On the web, only a few images are available to use without a direct copyright violation though. I usually try to find those images when producing documents, but it can be difficult. Compflight is a great tool and there are others such as the Creative Common search. These search engines take extra time to search and their search functions are not as powerful as core search giants like Google, Bing, and Yahoo. 

Well, Google has made this process easier by adding a licensure limitation on your image search directly on the search page (see image). Here is the procedure:

(1) run a search (such as "education law" below),

(2) go to "Images,"

(3) click "search tools," 

(4) use the "Usage Rights" drop down to select the licensure category. 

Now, this is not a fool proof method in that Google is not guaranteeing the license.  To be safe you need to independently check the license, but it is a great time saver and a really good step by Google during this Copyright Week to make the world a slightly more functional place (even if this doesn't address the core issue of the broken copyright system). 


Finance Conference RFP Deadline Tomorrow

Just a heads up that the deadline for submissions to the National Education Finance Conference is tomorrow, Jan. 15. The conference this next year is in Louisville, which of course is awesome for me. I've thus proposed a retelling of Bruce Baker and my brief on virtual school finance

Anyway, if you are interested in education finance, particularly from a legal perspective, it is can't miss conference. 


Copyright Week

Today is the start of Copyright Week, as sponsored by the Electronic Frontier Foundation, a host of other digitally interested organizations such as Creative Commons and Wikimedia, as well as other organizations interested in more open information such as the American Library Association. Here is a press release on the start of it. 

Whether or not you follow along this week, you should be aware that even as the Internet has made information more openly available than ever before in human history, many interests, specifically Hollywood, are pushing to make information increasingly protected behind copyright law. Congress has a tendency to want to listen more to Hollywood than well, common sense, so copyright law is only becoming more strict. Schools are sort of left in the middle of this and the result is that many teachers and students are technically criminals for copyright violations.  

If you want a basic introduction to copyright and education, here is a short article I did last year on it from T.H.E. Journal


Open Records & Academic Freedom in the Chronicle

The Edjurist's dear friends (Neal, Jeff & Karen) have a fascinating op ed. in the Chronicle of Higher Education today on the controversial request for university professor email and other documents by a conservative advocacy organization. 

Some thoughts of theirs: 

The problem with the unfolding episode in North Carolina isn’t the desire to challenge Nichol’s views and assertions. The problem is using an open-records request as a strategy to suppress debate. A law intended to add transparency and openness to government operations has been used to harass and silence.

Be sure to check out more thoughts from Neal, Jeff, Karen & their team at our sister blog,


SnapChat is Sending Images to the Government

Our kids really need to know that. Like now. Our younger teachers do as well. In your next legal training on anything related to social media, you should mention this. I teach a pre-service law course starting next week; I am definitely going to mention this in there. 

I'm not a user of snapchat myself, but I know that many of our students are heavy users somewhat on the premise that whatever they send will go away quickly. Well, no so much. 

Details here. H/T: Bethany Smith


Teacher Evaluation Law in Michigan: A Case Study

To further my interest in the legislative changes to teacher evaluation laws nationally, I partnered with Wayne State University researcher, Ben Pogodzinski, to investigate how teacher evaluation reform in Michigan affected labor relations in this strong union state through a survey of local district superintendents and human resource directors.

The Michigan legislature revised its educator evaluation system in two consecutive years: 2010 and 2011. The law now requires districts to adopt and implement a "rigorous, transparent, and fair performance evaluation system" that includes annual evaluations of teachers' job performance, to inform decisions regarding employee effectiveness, retention, promotion, firing, and the granting of tenure. These evaluation systems must include student growth data as a "significant factor" (Mich. Comp. Laws Sec. 380.1249). Student achievement growth will account for 50% of a teacher's evaluation by 2015 (Mich. Comp. Laws Sec. 38.81). 

While these types of changes to state teacher evaluation law were common around the country, the Michigan Legislature added a prohibition against collective bargaining on this topic (Mich. Comp. Laws Sec. 423.215(3)). This change was significant because the teacher employment relationship at the vast majority of Michigan's public schools are governed by collective bargaining.

Through our survey, we found that teacher unions continued to play an informal role in shaping teacher evaluation policy in about half of the districts relating to issues such as how student acheivement data would be used in the evaluation process, how classroom observations were structured, and teacher goal setting and attainment. This limited union involvement through channels other than collective bargaining may have contributed to administrators' positive reports about the labor climate in the state despite the significiant change in teacher labor policy.


Michigan Innovative Schools Conference

I attended the Michigan Innovative Schools Conference in East Lansing, MI today. Michael Horn of the Clayton Christensen Institute was the keynote speaker. He spoke about the ideas from his book, "Disrupting Class: How Disruptive Innovation will Change the way the World Learns." He provided suggestions for how schools should think about adopting emerging blended learning models to improve student learning outcomes. One key point he made was that schools should not blindly adopt new technologies. Instead, they need to identify the problem they are trying to solve to see if blended learning makes sense to try to solve it and then quantify the learning outcomes they'd like to achieve. 

He also discussed the difference between hybrid models of instruction that add online learning to the mix of available options such as in an elementary classroom where students spend some time receiving direct instruction from a teacher and some time learning online and disruptive models that use online learning to drive all instruction such as in a virtual school. 

Ultimately, Horn contended that for any blended learning to be successful teachers need to understand that they have a very important role in student learning. Teachers need to be trained for the new models, not feel replaced by the technology. Horn argued that the currently available technology isn't ready yet to take over core academic subjects, especially in high schools. It is more useful in non-consumptive areas like credit recovery and to offer additional learning opportunities for students in subjects not offered at their schools. Yet, the introduction of technology in these areas will be the engines of change in the long run. They bring unique value propositions such as not being tied to seat time and student agency in owning their own learning. Also, students can accelarate at their own pace once they start learning, so productivity can increase. Another benefit is access to great teachers wherever students are located. 

Horn's advice to create disruptive innovation, schools should create an autonomous team that is separate from the rest of the organization, have them focus on a point of nonconsumption, and commit to supporting a fledgling project they create.

As a faculty member in a higher education institution, I see my institution moving very quickly to adopt new models of blended learning to meet student learning needs, particularly for flexibility since most of our students work full time in addition to pursuing their advanced degrees. As a parent, my children's schools are moving much more slowly to incorporate techonology into their instructional options. However, Michigan has a robust virtual university that offers online courses to high school students, legislation that allows several K-12 virtual schools to operate, and new law, Sec. 21f of P.A. 60 of 2013, that allows students to take more online courses as part of their education. The educational landscape is rapidly transforming.


Section 504 and Virtual Charter Schools. What does the OCR Say is Required?

The Office of Civil Rights (OCR) just announced a resolution agreement with the Virtual Community School of Ohio to guarantee equal access to educational opportunities to students with disabilities. It specifically addresses rights under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.

OCR's letter noted that the school had insufficient procedures to identify students with disabilities, test them, and develop 504 plans to meet their educational needs. It noted that online schools lack a typical teacher referral method because teachers do not regularly observe students in a classroom setting. It also questioned whether the school provided sufficient access to learning in its online environment for visually impaired students and students with learning disabilities. The OCR identified several features of the school's website and courses that were not accessible to students with low vision. Ultimately, the OCR "concluded that the School has not provided individuals with disabilities, including visual impairments, with an equal opportunity to participate in or benefit from its web-based education program and that access to its website and web-based education program is not as effective for individuals with disabilities as that provided to individuals without disabilities" (Resolution Letter, Analysis and Conclusion).

To remedy this situation, the Virtual Community School agreed to develop new procedures to identify and place students who need 504 plans. It will also revise its website and online learning environment to ensure its accessibility to students with disabilities.

This is the first of its kind resolution agreement, so it provides important guidance to virtual schools around the country as they develop and implement their procedures for complying with the legal requirements for students who qualify for 504 plans under the Rehabilitation Act and the Americans with Disabilities Act. It lists specific deficiences in the identification procedures, evaluation processes, and educational web delivery systems. Schools that deliver educational content online should review this resolution agreement.


A copy of the announcement can be found here:


Election Results in Colorado

In May 2013 Governor John Hickenlooper signed into law Senate Bill 13-213, which replaced the School Finance Act of 1994 in Colorado and provided the state with a new funding formula. However, due to state constitutional restrictions around tax increases, the bill could not fully take effect until voters approved additional revenues for public education. The author of the bill, Senator Mike Johnston, likened the bill to a brand new car with no gasoline in the tank. You own it but, unless you get the fuel for it, the car will just sit in the garage. The gasoline for the new state funding formula was Amendment 66 – a $950 million proposed tax increase for public education. Colorado voters overwhelming rejected this tax increase (64% of the voters rejected the Amendment). The outcome was extremely disappointing for proponents of public education and have some worried about the end of schools as we know them.


Myron Lieberman wrote a book in 1993 entitled Public Education: An Autopsy. Given the fact that Lieberman’s prediction that public education would die has not come to fruition suggests that this vital entity to the fabric of American society has staying power and value. The temptation to overreact to election results must be tempered. There are countless examples of doomsday-esque predictions regarding the demise of public education, but all, up until now, have proven baseless (computers and the internet will replace teachers, the charter school movement, No Child Left Behind – to mention just a few).


As I have processed the results of Tuesday’s elections, I find my thoughts settling on a small school district in Colorado. This school district placed a sunset on a proposed mill levy override in order to garner the sufficient support for the override to pass. This school district has already gone through one sunset and then approached its voters for a second override, once again with a sunset (it too passed). The voters in this small community value education and value a degree of accountability. I feel like the voters of Colorado were not making a sweeping comment on public education, rather they were collectively expressing reservation with giving such a large amount of money to education. Perhaps they want greater accountability associated with the additional revenues?


There will be additional efforts to fund SB 13-213 and these future efforts (hopefully just effort) must ascertain the collective sentiment of the 64% of voters that rejected Amendment 66 to better meet their needs. Perhaps the tax increases must come with a sunset. Or, perhaps the total dollar amount was the biggest issue.


I see a connection between the election results in Colorado and the government shutdown in October. The connection is the need for collaboration. Regardless of my personal political views, I must realize that I need the other side of the aisle to support my proposed legislation in order for it to pass. The lack of collaboration in politics throughout the nation reminds me of the playground expectation that I get my way or I am going to take my ball and go home. Compromise appears to be a lost art in politics. I am calling for a return to compromise to ensure all views are represented in the formation of a solution. A compromise beats having a brand new car sitting in a garage unable to run due to a lack of gasoline.


Education Law Job Guide

I ran across this very nice guide on the Education Law field from Harvard Law and thought it was worth passing along to those that might have interest in a future career in education law. 


ELA Private School Law Conference 

Had a wonderful time today at the Private School Law Conference in Lexington that was sponsored by the Education Law Association. Huge Kudos to Bill Thro and Cate Smith for helping to make this possible. Ralph Mawdsley, Charlie Russo, myself, and Bryan Beauman of Sturgill Turner were the presenters. Trinity Christian Academy hosted the event at their lovely facility.

I was really glad to see this event because we do not, as a field, do enough for private, independent, and religious schools. The laws really are quite different from public schools, so we need to do more. Hopefully this is a great start and something that can be sustained.


Ed. Law Scholar Assumes Deanship of Harvard Graduate School of Education

James Ryan officially began his duties as the new Dean of the Harvard Graduate School of Education a few days ago. You can see the release naming him the new Dean here. His podcast upon starting the job is here

I am really excited to see his promotion and wish him the best of luck (frankly I am sort of happy to see HGSE finally employ a full-time law scholar). He is just the next in a long line of education law scholars assuming very high level leadership positions within the field of education in the United States ... and I think that is a very positive thing for all of us. Hopefully James will provide leadership not only to HGSE but to education colleges broadly who frequently look to Harvard for precedence.