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DISCLAIMER

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.

Monday
Aug302010

Call for Papers--AALS Education Law Section

The Education Law Section of the Association of American Law Schools has distributed the following Call for Papers for the upcoming Annual Meeting in San Fransisco.  Note that selection comes with publication in the Michigan State Law Review.  Here's the Call:

Call for Papers Announcement

The AALS Education Law Section will hold a program during the AALS 2011 Annual Meeting in San Francisco, California on Immigration and Higher Education.  The panel description is as follows:

Many students attend U.S. colleges and universities who are not U.S. citizens, and many of those students become faculty in the U.S.—especially in the STEM disciplines. The citizenship of these individuals gives rise to numerous legal issues. This panel will address several of these issues both in the U.S. and abroad, including: whether undocumented students in the U.S. should pay in-state or out-of-state tuition as disputed in current litigation in California and Kansas; how universites in the EU operate in terms of out-of-country tuition; and also the licensing of professionals across national borders.

The section invites interested scholars to submit proposals for papers to be included in a symposium to be published in the Michigan State Law Review during spring/summer 2011. One or more papers also may be selected for presentation during the program at the Annual Meeting.

Submissions should be sent via e-mail to Professor Emily Gold Waldman at ewaldman@law.pace.edu by October 15, 2010. Members of the Section’s executive committee will review the submissions and applicants will be notified of the committee’s decision by November 15, 2010.

Eligibility:

Faculty members of AALS member and fee-paid law schools are eligible to submit papers. Foreign, visiting and adjunct faculty members, graduate students, and fellows are not eligible to submit.

Registration Fee and Expenses:

Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.

Time and Date of Panel:

AALS Education Law Section

Immigration and Higher Education

Friday, January 7, 2011, 10:30 a.m. – 12:15 p.m.

2011 AALS Annual Meeting

San Francisco, California

I presented at this conference last year, and it was a great experience.  I encourage all of our law professor readers to send in a paper!  Hat tip to Kristi Bowman, President of the Education Law Section.  

Sunday
Aug292010

"The Storm" Turns Five

Most people in the Gulf Coast region do not call Hurricane Katrina by its name.  They call it "The Storm."  Perhaps this is because, especially in Mississippi and Louisiana, The Storm so fundamentally changed daily life that it is unnecessary to say which storm one refers to.  Perhaps it is a snub to the Hurricane gods, like turning one's back on a bad memory.  Whatever the reason, The Storm turned five today, and it is worth marking that milestone here on a blog dedicated to education law issues. 

The Storm is of particular interest here at Edjurist because of its profound effects on public schooling policy, especially in New Orleans.  In the past five years, the city schools in New Orleans have become what has often been called a "laboratory of experimentation," a term that Justice Brandeis used to refer to the states in general in defending his ideal of federalism.  New Orleans is now divided into traditional public schools, state-takeover public schools, and several different kinds of charter schools.  Around fifty percent of the schools in New Orleans are presently charters.  This situation is unprecedented in public education, and it is both excting and, in some ways, scary.  From the region, we hear both success stories and worrisome reports of neglect and discrimination--particularly in relation to disabled students. 

With the idea of education law and school reform in New Orleans in mind, I want to call the attention of our readers to two feature law review issues that focus on school reform in New Orleans since The Storm.  One is already published as Issue 2 of Volume 11 of the Loyola Journal of Public Interest Law.  The other will be published as the January 2011 issue of the Journal of Law and Education.  The papers in these volumes reveal a good deal of unknown or under-discussed information about the post-Katrina reforms in the area and their local and national implications, and they are worth a read for anyone interested in large-scale reform efforts. 

Sunday
Aug292010

The Battle for Detroit Public Schools

One of the most interesting education law issues going on in Michigan is the battle between Robert Bobb, the Detroit Public Schools' (DPS) state-appointed emergency financial manageer and DPS's Board of Education. Multiple lawsuits have been filed.

It illustrates the tension between state authority over education and our tradition of locally controlled schools.  The DPS Board filed a civil suit last summer against Mr. Bobb alleging he exceeded his authority as emergency financial manager because he proposed changes to academics.

Mr. Bobb won the first round of the Board's lawsuit against his plan for the district which made sweeping academic changes when the Court of Appeals reversed a lower court ruling against him.  Read the story here: http://www.mlive.com/news/detroit/index.ssf/2010/05/robert_bobb_wins_round_but_det.html

The case continues in the circuit court, though, and Mr. Bobb and the eleven member board have been ordered to attend hearings related to the lawsuit.  Read the story here: http://www.mlive.com/news/detroit/index.ssf/2010/06/robert_bobb_v_detroit_board_of.html

In the latest development, Robert Bobb will soon be making a recommendation to the Michigan Legislature that DPS have a permanent Inspector General, Auditor General, and Chief Financial Officer to combat years of financial mismanagement, waste, and corruption.  He wants these officials to have the authority to act independently of the local school board.  Read the story here: http://www.mlive.com/news/detroit/index.ssf/2010/0/robert_bobb_preparing_proposal.html The battle continues ....

 

 

 

Friday
Aug272010

"The processes and procedures for student elections are under review."

MSNBC reported today that the Nettleson School District in Mississippi recently sent around a memo to its middle school students regarding their opportunity to run for class office.  This memo listed each office available in each gradeand then further specified the racial requirements for each office!!!  Even more astonishing than the actual policy of class office segregation by race (if it is possible to be more astonishing) is the school district's tepid, bureaucratic response to the revelation that it continues to practice Jim Crow education by explicit edict.  The title of this post is the meat of the district's response, but I encourage readers to read the whole thing here

Unless this is some elaborate hoax, then we have serious problems in this part of Mississippi.  In my education law classes, I routinely remind my students that, just because the Supreme Court has held that a particular action is unconstitutional, one should not expect that the action is never performed in any school district in the country.  But when I say this, I am generally referring to school-directed prayer, NOT de jure racial segregation.  Truly depressing. 

Friday
Aug272010

Class Resources

So, within the past couple days I have received a couple requests from folks about ideas for their school law courses and I have been helping my TA gear up for teaching pre-service teachers about the law. During this time, I was reminded what a good resource the blog is for subject-specific content. I've been building the blog archive now for around a 1/2 a decade, so there are a lot of stories, videos, images, etc. that might be useful in your courses (they certainly are in mine) for generating interest and discussions on these legal topics. I think we school law profs. need to keep in mind that the law is boring to most people and that we really need to liven it up for maximum learning.  

The best way to find these is to use my category archive (under the blog menu above) or the search tool on the right. In fact, since I frequently mention where the event occurred, one good search strategy might be to search for your state and see what comes up. There are over 700 posts in the archive ... I promise there is something you can use in your course if you do a little searching. 

Some archived stuff I have used recently in my courses include:

  1. This crazy church/state cross burning teacher from Ohio (use with religion).
  2. The continuing insanity of duct-taping students to chairs or putting kids in cages (use with torts). 
  3. Pink dyed hair and student speech (use with student expression). 
  4. A Kentucky pat-down over $5 and search review (use with search & seizure). 
  5. Great This American Life clip on video cameras in schools (use with search & seizure).
  6. For those early-childhood folks - if you want to gross them out (use with teacher/student discipline). 
  7. If you want to scare teachers away from abusing students (use with harassment). 

Anyway, that's just a taste of what lies waiting for you in the archives - just a heads up. Have a good weekend everyone. 

 

Thursday
Aug262010

Can policies stop a mobile learning tsunami?

No. They can't. There is no legal floodwall even remotely big enough to stop this one.  

Yet, we keep trying ... and causing ourselves even more policy trouble in the effort because as we are trying to build the wall higher and stronger we are also trying to bail out the water already on the other side. 

Is it time to switch tactics yet? Is it time to go with the flow and help direct the waters in responsible directions? We legal types are the ones that need to let administrators know when it is appropriate to stop trying to plug the dam. That is our responsibility as their advisors. 

Meanwhile, the kids are waiting for us ...

For my non-legal readers ... don't be scared to send this kind of stuff to your principal or even to your school district attorney. Especially the lawyers need to start hearing this message. 

h/t Free Tech for Teachers + Wes Fryer's Speed of Creativity

-- By the way, in the vid. above, what kind of principal puts a picture of a bear behind their desk? Talk about the wrong message for kids ... this guy's got it all wrong. 

Wednesday
Aug252010

Picky, Picky, Picky ... Really?

So, guess you heard New Jersey missed out on Race to the Top because they didn't follow the directions properly? The Gothamist (a site I sort of like) has a good overview and the Star-Ledger has the actual reviews. Had New Jersey provided the right budget years, they may have received an additional 4+ points in their application. It turns out that they missed the last funded slot by ... 3 points - a potential 400 million dollar error. 

So, my question is why be so picky. Yes, it was a dumb (or ill-conceived) move by New Jersey's Department folks, but why punish the kids in New Jersey over a technicality? There is probably more to the story, but I think it is indicative of a larger point worth considering through this Race to the Top process.

The Fed. was just flat too picky. Normally, being picky and accountable is a good thing, so I hate to complain about it, but I do think in this instance the DOE was too rule-bound in granting the points to grant the awards.

The whole concept of awarding "points" for different components in a state plan struck me is childish. This is not a math test. Nor was this a research grant. There are no necessarily right or wrong answers in educational innovation. Even charters (which wound up doing us in here in Kentucky) have not been proven to be a right answer. So, when we here in Kentucky say we have a waivers system or other charter-like concepts ... there was no credit even though for all we know our answer was just as right as any other answer on this concept.

Lines have to be drawn somewhere and due process demands procedures be established, so I understand the argument for the process they established. But, nothing required them to be so picky in assigning the points. The pickiness wound up being a punishment for many children in the US. 

Update: Now, some speculation that one particular judge scored some proposals low and it may have impacted some states. For instance: 

Further review of KY RTTT scores today shows combination of 0 points on charter and low scoring judge impacted rank. Similar issue for COless than a minute ago via web

 

P.S. - Yes, some of this post is a result of sour-grapes ... I'll admit it. [Grumble, grumble] But, there is a legitimate point in there somewhere, I hope. 

Tuesday
Aug242010

Missing RttT: A Pep Talk Revisited

So, now that Kentucky has officially been shut-out of the Race-to-the-Top competition (very disappointing day) I think it is a good time to revisit a post that I wrote months ago now at the beginning of all this RttT madness. So, without any changes or additions here is exactly what I said months ago ... and the message I want to deliver again today: 

  1. Don't forget we are living in extraordinary times when the cost of innovation has never been lower. It is easier to collaborate and disseminate now, than at any time in recorded history - meaning the price of the tools that you need to make change in your states is probably close to zero. The cost of the announcement above? Zero. Keep that in mind. 
  2. Many of the changes we need in schools, don't cost a lot. It doesn't cost much to let teachers be more creative. It doesn't cost much to let students use their cell phones as learning tools. It doesn't cost much to get your classroom content in the kids home via Moodle. It doesn't cost much to personalize learning for kids. We think these things cost a lot and they do, but those costs are not monetary costs, they are time and effort costs. And, while I wish we could pay our teachers more too, most teachers are wonderful human beings who would put in that time and effort if our leaders help them in doing so.   
  3. Make your own resources (money, time, & effort)! You need $500 for some new software? Ask your parents. Ask your local grocery store. Hell, ask us at universities! But, when you are asking them, don't just ask and walk away. Involve these people! Let them help run it. Let them talk to the kids. It's amazing how much people are willing to help if you involve them as collaborators (reference point #1). Oftentimes, they don't even want to put their name on it, they just want to feel like they are making a difference.    
  4. Be a leader. I'm convinced the problem in most states is that there are truly not enough real leaders. The kind that understand where real value lies (which is almost always not in the bottom line). If your reading this blog, you know something about technology. That's probably at least 50% more than most of our educators out there. Start with that. Start by organizing a few fellow teachers or principals and talking about whether or not a blog could be useful in a classroom. And, let it roll from there. Step up to the plate people. We need you. And for the love of God, please don't be afraid to fail.     
  5. Help your departments try again. I'm one of those wacky people out there that actually like state departments of education. I worked with them my whole career and those people are good people. But, they function in very tight political spaces. They are almost always overworked. Almost always overwhelmed. So, they need help. Not in terms of writing the document (although they always welcome edits), but they need ideas. They need projects. They need people that can step up and lead a state effort. They need people that can help get the signatures from all the districts in the state. And parents groups. And teacher groups. And business groups. That's just a heck of a lot of work, and they need help. So, want more money for your state? Go help get it yourself. 
  6. Just do it. Just freaking go do it. Got an idea? Just do it. You don't need approval. You don't need authorization. You don't need money. You don't need a policy written (remember, that's coming from a lawyer). Find a way. There is always a way. Yes, maybe you have to sit in a board meeting and explain your plan. Yes, maybe some won't like it. Who cares? Who freaking cares? I tell people around here I don't care about tenure. They look at me funny and think I don't mean it. But, I do. I do not want to spend my life worrying about bureaucracy. I'm going to spend it doing what I love to do, whether or not that meshes with my institution matters little to me as there are a lot of institutions and not a lot of people who do what I do. If you are bringing value to the table, there will always be a demand for you. So, your focus should be on bringing value to the table, not on pleasing your institution. In other words, just freaking do it. The rest will take care of itself.   

So, that's it. That's my pep talk. It was a rough day for education in at least 1/2 the states today, but there is always opportunity in adversity. If it winds up that missing out on Race to the Top causes even a few of you in your state to finally decide to lay it totally on the line and go after the change you visualize, then the better result was missing it. It's not about the money, it's about the kids. And, with all the technology and tools in today's world, it's easier than ever to help them. 

Monday
Aug232010

Sports is losing money for universities ... why are we doing it? 

Another report out today confirmed what most of us already know, college athletics is a money pit. An NCAA study done by (Lexington's own, yeah!) Transylvania University found that only 14 of the 120 FBS schools make money and those are typically the programs with the largest and most well-heeled football programs. The rest must be subsidized by other university budgets (potential academic dollars) in varying amounts. For FBS schools that must compete in power conferences but do not have strong athletic programs, the price can be very steep.

Of course, this report comes on the heels of several others that also make me question the feasibility of continuing down our current path in college athletics. Take, for instance, this report out a couple months ago on the growing disparity in atheltic and academic spending. The following chart tells a pretty stark story. And, that's not to even mention the recent seismic shifts in the major college athletic conferences all in the pursuit of an extra couple million dollars. And, before you go thinking I am anti-UK basketball or anything, UK athletics donates millions each year to our academic budget and on top of that I am a huge Wildcats fan. 

Source: Chronicle of Higher Education

But, even so, why do colleges, especially those in non-power conferences, even bother with athletics? There are a myriad of legal issues that ensue once a college chooses to participate in athletics from NCAA or NAIA compliance, to Title IX compliance, to injury liability issues, to insurance issues, to managing booster clubs to handling fundraising, to contracts with sponsors, and managing all this money ... and don't even get me started on my feelings about coaches. In other words, the potential legal liability from athletics is huge. 

So, seriously, why? Yes, I understand there is some prestige that comes with the sporting scene. I recognize that sports marketing can translate into future students. I get the argument to serve the whole student, not just their brains. I absolutely love being in rural Kentucky and seeing the UK flags in the yards. I can see some of the benefits. 

But, all that aside, I don't see the case for it considering everything, including the economics of higher education. Why are we taking what little money we have from academics at most universities and pouring it into athletics ... only to see the vast majority of those teams lose year after year. What is the return on that investment and could we not generate a larger return putting that into academics? I'm not trying to be a sports hater here (I have been accused of it in the past), I would just like some feedback on what I consider a very serious question. Unless someone can convince me otherwise, there is simply no reason whatsoever for schools like my beloved SIU to be playing sports (but, Go Salukis anyway?). 

Thursday
Aug192010

Social Network Lockdown ... And What To Do About It

Angela Maiers got a note recently from a concerned teacher which she posted on her blog (thanks to @Linda407 for notifying me). The note basically articulates the tenuous position a teacher finds himself in after the school has issued policy stating that social networking (facebook/twitter, specifically) is not permitted at all during school hours - not even during the teacher's duty free lunch hour, according to his contract (must be a union state). The teacher is an avid user of facebook and twitter and so is very concerned and frustrated with this new policy and is at least considering violating it, even if it makes him a "martyr." 

So, both he and Angela asked about the legal issues surrounding this situation, so a quick refresher followed by some advice. 

First, duty free does not necessarily mean duty free, at least legally (see, for example Texas' law). Perhaps the union in that district negotiated that provision in the contract (good for them) but that provision does not mean you have no relationship with the school during that 1/2 hour. 

Now, breaks (meal and otherwise) are actually not a real clear legal area. There are just not all that many laws out there on the rights and responsibilities during breaks (if you are interested, here they are). Anyway, the lack of legal clarity here is probably bad for the employee's case as it gives employers lots of flexibility during these periods. So, I hear you saying it, "I'm not even getting paid during lunch." Yep, that's true. But, you are also not getting paid in the 15 min. before school officially starts nor the 30-45 min. after school officially ends, yet I think most of you would agree that a teacher feels some level of responsibility toward the school during these periods.

All of that is a long way of saying ... if you are at the school while the kids are there, you have some responsibility to be a teacher. How much? What types? That's all hard to say and would probably wind up being a roll of the legal dice (and cost you $10,000 or so) to find out.

Next step, what if you leave school premises and tweet while at McDonald's over lunch? Well, while the on-campus responsibilities will not apply, this is when the teacher lifestyle regulations kick in (side note: apparently Dave Schimmel has started convincing people to refer to such regulation as "teacher out-of-school conduct" - not sure whether I buy into that yet; I'll probably post on it eventually). Historically we have always given schools some latitude in regulating teacher behavior even outside of school (you can watch this module if you want to know more), so when your tweet pops up at 12:13 pm on the principal's tweetdeck account ... there is at least a legal avenue by which the administration can make an argument for regulation. 

Okay, I don't want to be Mr. Doom and Gloom entirely, so let's quickly look at the teacher's rights. Teachers are provided some expression rights and depending on the content of the tweet, that might come into play to protect the teacher. I won't even get into Garcetti, but I have before so you can read it there.  Also, the contract language of a duty free lunch could be construed the other way to protect social networking during lunch (again, that's a roll of the dice, depending on your state). And, if lifestyle is their argument, I think the teacher could make a good case that no natural nexus exists between social networking and school (although I know some would disagree). 

So, the bottom line as I see it (again, see disclaimer on right ... not legal advice) is a mixed bag and probably a legal fight. There is enough uncertainty in the law that the school might be willing to fight, meaning a lost job plus high legal costs for the teacher. Is tweeting during lunch worth it? I highly doubt it.

Look, the real problem here is this school's disdain for social networking. It is probably unfounded and reactionary, but it is real. If I were the teacher, that's the issue I would spend my time working on. Make it clear to the principal that you will abide by their rules, but that you disagree with them. Then, ask if you can set up a Twitter account for them. Or, friend them on Facebook. Or, show them Ning or Buddypress. Give them the names of principals in nearby districts that use social networking (your tech. coordinator will probably know of some). Ask to form a committee to review the policy. Ask to present that committee's report to the board. You get the idea. There are lots of acceptable, totally legal, avenues that you can take (it is still a democracy, after all).     

A kamikaze mission might change the policy in your instance, but it won't change the hearts and minds in your district. Your responsibility is to change the hearts and minds, not to go down in a blaze of glory.  

Wednesday
Aug182010

Starting School

So, everyone is starting up school again this year. Lots of fresh faces in new places. Good luck to everyone this year. I'm excited about the possibilities, even in our economic state of depression (pun intended?)

I'm particularly excited about some of our ed. law colleagues in new positions, so if you know of someone in our field that is starting somewhere new, make sure you send a little note to wish them well. We want to make sure everyone feels welcome and stays committed to improving our education system for our kids. 

In a programming note, you can count on a lot more action here at the blog. I have some new graduate students starting and one of the tasks I am going to request of them is to help generate content that I or others can post on the blog. They might even be doing a bit of their own posting, over time. 

Good to be back, everyone. I've missed interacting with you over the past few months, so let's get it going again. 

Monday
Aug092010

Michigan Supreme Court sides with teacher safety in student assault cases

On July 31, 2010 the Michigan Supreme Court in Lansing Schools Education Association v. Lansing Board of Education addressed an important safety issue for educators.  Michigan law requires that students who physically assault an educator be expelled.   In the lawsuit, four teachers, along with the local, state, and national education association alleged that in several instances students who physically assaulted teachers were suspended but not expelled.  The plaintiffs were seeking a writ of mandamus to compel the Lansing School Board to expel the students.  The defendant Lansing Board of Education won the lawsuit at the Court of Appeals level, where plaintiffs were found to lack standing to pursue this claim.  In a decision last this week, the Michigan Supreme Court reversed, saying that plaintiffs did indeed have standing.

This decision overturned an earlier Supreme Court decision, Lee/Cleveland Cliffs, that had adopted the federal view of standing and its case-or-controversy doctrine.  The court explained that it was returning to Michigan’s historical view on standing that is a limited, prudential approach.  This approach was one that gave courts discretion and granted standing to individuals who had a special interest in the case, not an interest in common with every other citizen in the state, in order to ensure sincere and vigorous advocacy. Thus, the court reasoned in this case that teachers have a special interest in enforcing the expulsion law MCL 380.1311a(1), that will be detrimentally affected in a manner different from the citizenry at large if the statute is not enforced.  In order words, since these teachers were injured by students they, and the labor organizations that represent them, have a unique interest in making sure that the students were actually expelled (not just suspended).  This is especially true in light of the fact that the law was passed to make schools a safer, more effective working environment for teachers.

Under Michigan’s new approach, a litigant has standing whenever there is a legal cause of action.  Where a cause of action isn’t provided by law, the court may determine that a litigant has standing if that party has a special injury or right or substantial interest that will be detrimentally affected in a manner different than the citizenry at large or if the statute conveys standing.

This case interests me because in one of the first school law classes I taught, one of my students, a high school teacher, was assaulted and injured by a student as she attempted to break up a fight.  The whole class was shocked by the lack of recourse she had.  The student immediately left the district, so the school board took no action against the student and the teacher did not press criminal charges.  For teachers who are assaulted by students, this decision will be a welcome relief. 

Interestingly, earlier in my career I served as an Assistant Attorney General for the State of Michigan representing the State in various matters, including purchasing.  We had numerous disappointed bidders, i.e. companies who were unsuccessful in their attempts to secure contracts with the State, attempt to sue to enforce statutes that required the State to follow certain bidding procedures.  The courts in those cases routinely ruled that these bidders lacked standing.  The bidders’ arguments were essentially the same as the educators in these cases—we have a special interest in pursuing these claims so you should let us.  Under the reasoning of the Lansing Schools Education Association case, these bidders may be able to be granted standing to pursue these claims.  I do not think that would be a good thing because most of the claims that were brought by the disappointed bidders were based more on their disgruntled status than any significant variance from the law.  Of course, public school teachers are public servants and the law in this situation is more straightforward than the state bidding procedures, so educators are more likely to bring a lawsuit to enforce the expulsion law in a manner that would benefit the public as a whole rather than attempt to pursue a personal vendetta against a student.

 

Friday
Jul302010

Rubber ... meet Road: Leadership Day 2010

It's leadership day again, something that is quickly becoming a CASTLE tradition. My previous leadership day posts are here and here. This year, I thought I would keep it simple and just reflect on a year's worth of statewide reform efforts here in Kentucky and some lessons learned and challenges ahead as I helped to lead this effort.  

I've not posted much about it here on the blog, but for the last year I have been dedicating a TON of my time to a new reform effort in Kentucky. It's sort of hard to put a name on it, but over time we have been branding it as the Kentucky P20 Innovation Lab: A Partnership for Next Generation Learning. We have national partners, state partners, school partners, university partners, and state government partners. Amongst all the partners a sense is starting to emerge that something significant is possible in Kentucky. Not small steps, but big steps. It may seem an unlikely place, but I promise you it is about perfect. It is neither too large nor too small. It is not arrogant. It has the right leaders in place. It has support in Washington, even without Race to the Top. It has the right internal political climate. It has universities on board. It has some money. And, mostly, it has done this before so everyone can believe it is possible again. 

So, in Year 1 we made amazing progress. We have the state excited about our effort and we generally have support from many necessary parties. We have identified some projects. We have won a national competition. We have funded 11 working labs. We have hired multiple staff. We have held statewide conferences and a meeting of the Governor's Taskforce. We have been the in the major state newspapers multiple times. On just about any measure, Year 1 has been a success. I am proud of my role in that effort and those accomplishments. I have worked on statewide projects before, but this the first time I am clearly a leader on a statewide reform effort so I want to share some of the lessons I learned in year 1 and some of the challenges I see coming in year 2.

Lessons Learned  

  1. People are most important. In Austin a few months back when we were working with the Stupski and CCSSO folks they asked us to really narrow down the issues we were facing in Kentucky and potential roadblocks that we needed to address. After some tense conversation (see point 5) we really and unequivocally honed in on the fact that everything was either possible or impossible based on people. Not money, not time, not partners, not laws ... people and people by a longshot. Everything else can be negotiated with the right people. 
  2. People need a plan. A real one, with the right other people involved. In the first 9 months or so of this P20 project, I spent almost all of my time building real plans that existing folks in the system could understand and participate in. It is an intellectual battle more than anything else to first convince people big time change is possible (don't underestimate the number of folks that have simply given up on such change) and second convince them that working together down a common path makes sense. To do this kind of very hard persuasion, you need a real plan and then you need other people to vouch for that plan. This is hard and takes time, but you must maintain patience through this phase. Meetings after meetings after meetings, most of which don't move the needle all that much. But, when a critical mass of people start to develop around a plan, they begin to vouch for it amongst themselves and jump on board. 
  3. Big can be better. People like big ideas and naturally seem to gravitate to them. A statewide reform idea has to be big by nature or I don't think it will work. The idea has to be big enough that everyone can see themselves in it, from teachers to state leaders. Plus, the bigger the plan, the more the credit for it can be shared. We benefited greatly so far because our idea has been bigger than UK alone. Other universities can find a role in this plan and take leadership roles, even getting credit for components of it. Sure, big is harder to manage and harder to deliver, but just like gravity, the bigger the idea and plan, the more people that can naturally gravitate toward it.   
  4. Time works against you. Just accept it, there is not going to be enough time to get even 1/4 of what you want to or think you can get done. As statewide reform unfolds, some people are going to wind up disappointed, but make sure you at least complete some projects. There has to be something to point to, even if that something does not please everybody. So, build in enough time to at least get a few projects finished.  
  5. Tense conversations are usually good conversations. So, coming out of law school I was quite used to tense conversations. One (generally) learns how to disagree without being too disagreeable. But, educators are not at all used to tense conversations. After some of the tense conversations in the past year, the educators in the room came out thinking I was some sort of jerk. But, avoiding the tense conversations just prolongs the agony and wastes time (see point 4 above). And, after a few days or weeks, usually those same educators come up to me and thank me for addressing the real issue in a way that helped us move forward. 
  6. Branding is critical. My nemesis on campus here is UK PR and we butt heads most frequently over branding issues. Branding is as much political as anything else because it is a statement of ownership - and people feel like they need to own things or at least feel comfortable with their 5 second analysis of who owns it. I don't exclude myself from this feeling as I have consistently fought for independent branding from UK, which, of course, annoys UK PR. Just be aware that branding is going to catch you off guard in the amount of time, thought and effort you need to put in it. 
  7. Want to know what's going on ... build a website. I'm convinced that there is not a healthier process for organizations, especially start up organizations, than building a website. The categories, the colors, the clarity ... it's all there. You have to know who you are before you can tell others who you are. I'm not happy with the current P20 website (or our story), so for the last few months I have been working on a new website (and a new story). For instance, initially I used yellow based colors with a smattering of blue. But, this gave an impression that P20 was too distinct from the COE, which uses a distint style of blue. So, we switched and learned something about ourselves in the process. This will happen a lot as you build your movement's website.  
  8. Sacrifice and Bravery (and Stupidity). Every time you want to do something different and keep your job, it is going to involve risk. Something is going to have to be sacrificed and to do so it is going to take bravery on the part of the reformer. For me, this has translated to neglecting traditional tenure requirements. Now, I'm not a total idiot so I am planning to clear the tenure bar, be it traditional or not. But, rest assured, my levels of traditional productivity could be much higher. This neglect might cost me money and it might eventually cost me my job. But, it is a risk I am willing to take. And, you must be to. At least 1 person has to roll the dice. Some people are going to call you stupid under their breath and in rumors ... that's when you know you are in the right zone. When people tell you that you are stupid to your face ... pull back a little. But, either way, they are going to be right and what you are doing is going to be stupid by traditional measures. Just remember, those measures are measures of value ... you bring value to the table and you will be fine (whether or not it is in your current position).
  9. You got to believe. If you don't, no one else will. That cannot be overstated.  

Big Challenges Ahead:

  1. Translating talk to tasks. We have talked a lot this first year, but it has only been the last couple months we translated any of that to actual tasks that we are working on. The time for talking is not over, we are still going to need to do plenty of that, but tasks need to take a much larger percentage of our time. 
  2. New value models. For a big reform to work, it will have to change the economic system at some point. This includes both the economic systems surrounding money itself, as well as the value systems placed on people and their work. For us at the COE, we need to change not just the monetary economic model, but also the tenure and promotion model. Yeah, that is a doozy alright, but this canot be done without it. 
  3. More people. In year #1 I would say the P20 organization grew something around 1000%. We went from about 2 people dedicated to this project to now a little over 20, with several of those being full time. To work, we are going to need to see that kind of growth rate continue for the next couple years, but the problem with percentages is that the higher the number, the harder it is to sustain similar levels of growth. As in, the only way to sustain such growth is for the new people to bring in new people. While I and a few others worked hard this first year to get that kind of percent increase, a centralized recruitment effort is simply not feasible going forward. We must find a way to decentralize this effort. 
  4. Putting tech. to work. To accomplish some of these big challenges, technology is going to have to do some of the heavy lifting. This is education, we can't simply pay our way to change. So, we are investing heavily in tech. development in the hope that we can compensate for some of those resource shortages with our technology tools. 
  5. Buying time. Promises have been made, partners have been wooed, and the expectations have been set. We can fulfill a lot of those promises and reach a lot of those expectations, but now we need some time. We are going to have to keep people interested while working feverishly on deliverables. But, it will take some time, so one big task is to get the time we need from as many parties as possible. We have a couple of small victories that should hit in the next month or two, but the big victories are still at least a year or two away. 
  6. Patience and Dedication. That's the critical combo, in my opinion. It is easy to say, but very tough to execute. There are going to be plenty of distractions and plenty of opportunities for frustration. We have to keep our eye on the ball. 

I am sure there are a host of other tips and challenges I could have addressed, but those are some that come to mind. This kind of statewide reform work is hard work, but I am convinced it is possible - and, I am also convinced that the time is right to try. I'm tired of talking about the need for reform - I feel it is my generation's task to actually do it ... or, frankly, die trying. I'm willing to lead on this ... will you join me? 

Monday
Jul262010

A P20 Presentation to KASA with Dean Mary John O'Hair

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

 

Tuesday
Jul202010

Educational Law Information Online - A Presentation to KSBA

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: 

Major Sites for Ed. Law Information

CSBA Summer 2010


(You have permission to share & add content at this location - http://bit.ly/avjQIq)


Introductory Story
Did you know? - http://www.youtube.com/watch?v=pMcfrLYDm2U

Cite for Legal Spending Statistics
Carl Malamud, Berkman Center Interview - http://cyber.law.harvard.edu/interactive/podcasts/radioberkman144

NSBA Insider Article I Wrote on Study- http://www.nsba.org/MainMenu/SchoolBoardPolicies/Newsletters/Insider-May-09.aspx

Primary Sources

Public.Resource.Org - http://public.resource.org/index.html
Bulk.Resource.Org - http://bulk.resource.org/

Google Scholar (check legal) - http://scholar.google.com/

Government Resources:
GPO Access - http://www.gpoaccess.gov/
Thomas - http://thomas.loc.gov/
USA.gov - http://www.usa.gov/
Data.gov - http://www.data.gov/
Kentucky Primary Legislative Sources: http://www.lrc.ky.gov/
 
Sample University Sites:
Legal Information Institiute - http://www.law.cornell.edu/
Oyez - http://www.oyez.org/

Corporate Freemuim Sites:
Findlaw - http://www.findlaw.com/
LexisOne - http://law.lexisnexis.com/webcenters/lexisone/
Public Library of Law - http://www.plol.org/Pages/Search.aspx

Secondary Sources
USC Open Law Journal Index - http://lawweb.usc.edu/library/resources/journals.cfm
Missouri School Law Index - http://dese.mo.gov/schoollaw/
Education Commission of the States Issues Pages - http://www.ecs.org/
Law.com Dictionary - http://dictionary.law.com/
NSBA School Law -  http://www.nsba.org/schoollaw
NSBA Legal Clips - http://legalclips.nsba.org/

Lexis Education Law Wiki - http://wiki.lexisnexis.com/academic/index.php?title=Education_Law

Wikipedia - http://www.wikipedia.org/
Special Education Law Facebook Page - http://www.facebook.com/?ref=logo#!/group.php?gid=44730632067
Education Law Association Facebook Page - http://www.facebook.com/?ref=logo#!/group.php?gid=177576668640
This Week in Law Podcast - http://twit.tv/twil
LawBox iPhone/iPad App - http://www.thelawbox.com/

Blogs

Justia Education Law Blog Directory - http://blawgsearch.justia.com/category.aspx?catid=1889

ABA Blawg Directory - http://www.abajournal.com/blawgs/education+law  
  • Spec. Ed. Law Blogs

Education Law Relevant Twitter Feeds
Justin Bathon - http://twitter.com/edjurist
Kentucky School Boards Ass’n - http://twitter.com/ksbanews
Rich Haglund - http://twitter.com/richhag
The Access Network - http://twitter.com/schoolfunding
Brian Jason Ford - http://twitter.com/BrianJasonFord
Jonathan Becker - http://twitter.com/jonbecker
Scott McLeod - http://twitter.com/mcleod
David S. Doty - http://twitter.com/canyonsdave
Jim Gerl - http://twitter.com/jimgerl
Legal Clips Staff - http://twitter.com/legalclips
Education Law Ass'n - http://twitter.com/ELAOffice
Thursday
Jul152010

Law v. Lore in Teacher Tenure

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. 

Tuesday
Jul132010

Summer Break

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). 

Thursday
Jun172010

98...99...? - Will you join ELA's Facebook Page? 

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. 

Friday
Jun112010

for-profit colleges in the news

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.



Wednesday
Jun022010

Value-Added Evaluation and Dismissal of Teachers: Two Cents from an Employment Lawyer

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.