State Court Funding Symposium

I want to announce to our readers an upcoming event at the Universiy of Kentucky College of Law that has implications for education law.  The event, jointly sponsored by the Kentucky Law Journal, the American Bar Association, and the Center for State Courts, is a symposium on the funding of state courts, many of which are currently in what can best be described as a resource crisis.  Here is a link to the schedule of events on September 23-24, which include Keynote addresses by both Dean Erwin Chemerinsky of the UC-Irvine School of Law and current ABA President (and UK Law grad) Bill Robinson. 

Now, what does this have to do with education law?  Well, two major things.  First, as with almost all categories of law, the majority of education related disputes are resolved in state judicial systems.  A funding crisis in those systems will inevitably lead to a crisis in educational dispute resolution.  Second, as many of you know, to the extent that "education rights" exist in our system, these rights are primarily state constitutional rights.  Where state judicial systems are hampered, the development of these rights is also hampered.  The issue of state court funding is therefore a vital one for those interested in education policy and law. 

I encourage anyone with an interest in these issues of access to justice (and the ability to be in beautiful Lexington, KY this Friday and Saturday) to attend the symposium. 

The South Dakota School Finance Decision

My blogging haitus is nearly at an end.  For now, I offer a couple of quick thoughts about the recent South Dakota Supreme Court decision rejecting an adequacy-based challenge to the state's school financing system.

First, the state defendant won this one on the merits, based on the evidence (particularly, the lack of evidence of causation--more on that below).  This, I think, is the first adequacy case of which this can be said.  The recent state victories in Indiana and Missouri were not truly of the same character, both being based on a general approach to judicial deference bordering on the political question doctrine.  The recent Oregon decision, also a state merits victory, was based on a quirky textual feature of the Oregon Constitution that does not exist in any other.  The South Dakota decision, while deferential to legislative policy choices (especially in stating the standard for proving unconstitutionality as "beyond a reasonable doubt"), is based on a much deeper review of the evidence. 

Second, and relatedly, the opinion is very well-reasoned and fair in its explanation (I, of course, take no position as to whether the court is representing the state of the record evidence properly, as I was not involved in the trial and have no access to the record on appeal).  It takes the arguments of both the state and the plaintiffs very seriously, and is does not appear to place any kind of thumb on the evidentiary scale for either party.  This approach is not necessarily new, but this is one of very few school finance decisions on the merits where a state supreme court has gone out of its way to show the readers of its opinion that both sides indeed presented good arguments.  I think that goes a long way toward fostering the opinion's perceived legitimacy. 

Finally, and most importantly, the South Dakota decision is also the first that has required the plaintiffs to establish a causal link between the many educational deficiencies that they were able to establish in the evidence and the action or inaction of the state government.  As perennial state-side litigator Al Lindseth has pointed out both in scholarship and in court, in adequacy cases in which plaintiffs prevail, there is little to no discussion of causation.  This South Dakota decision hinges almost completely on the insufficiency of evidence of causation.  This feature could make the South Dakota decision a very impactful one. 

I look forward to seeing how this opinion works its way into the scholarship. 

Edjurist now has a cousin in HigherEducationLaw.org

I've been away from posting a while, but I've been working on a little project and wanted to announce that Edjurist now has a younger relative.  Fortunate enough to have assembled what I think is a pretty neat bunch of folks, we have just launched HigherEducationLaw.  The site, as the really creative name implies, will focus on legal issues in higher education. We're just getting started, but I think that we'll soon be putting out some really good content.

I've really enjoyed being a contributor on Edjurist and plan to stay on as long as I can keep stealing the password from Justin. My hope is that the two sites can reference each other often and share content of interest to both audiences.  For those of you interested in higher education legal issues, I hope that, along with the Edjurist, you'll add HigherEducationLaw to the blogs that you follow.

And now that I've got the site up and going, I also plan to be able to pick up the pace with posting on here.

Ain't That a Kick in the Wallet

Illinois is no longer funding regional superintendent positions. Not a huge deal except that they all have continued to work for the past 2 months without pay. And, Friday, a judge told them that's the breaks and thank you for volunteering and you're welcome to continue to do so. The legislature might step in and override the governor, but short of that these educators are out of jobs, practically if not technically. 

Of course, guys like this make everyone else look bad :) 

Anyway, back on point, as a person who was fond of my regional superintendent while working in Illinois, this is a real shame. Were there too many regions. Probably. Was their bloating and waste at this level? Yeah. But, did Illinois need to eliminate the entire structure? Surely not. 

I'm sure the legislature and governor's office will negotiate some new regional structuring, but sometimes Illinois just can't help but embarass itself in the process. 

Restraining order extended at CMU

I woke up very early this morning and traveled to Mt. Pleasant to attend the hearing on the motion for a temporary restraining order against the CMU Faculty Association.  Judge Paul H. Chamberlain asked the parties into his chamber where they agreed to extend the restraining order against any collective work stoppage until 20 days after the Michigan Employment Relations Commission fact finding report is issued.  Fact finding is scheduled for the second week in September and the report is expected 30 days after it concludes.  The administration was ordered to bargain in good faith. Both sides considered this order a win.

To see a copy of the order, check out this page: http://www.cmufaccc.org/

The big wins for the faculty association were an agreement that we could lower our out of pocket health insurance cost by moving to a higher copay for our health insurance, an expedited consideration by the court of an issue relating to pay for individuals who earned promotion last year, and a restoration of our First Amendment Rights.  The original order prohibited the FA from mass picketing.  In response to that order, students picketed throughout the week and also staged a silent protest at the courthouse this morning. Members of the Ferris State University Faculty Association drove an hour to CMU to picket in front of the administration building on Thursday.

What am I learning from this experience?  Well, I'm learning FA jargon.  I'm hearing "FA Strong" and "in solidarity" a lot this week.  We even chant while picketing, "Contract now!"  I've discovered why people are so loyal to the Michigan Education Association.  They paid every FA member for the work they did on Monday during the work stoppage and MESSA (our insurance provider) extended our health coverage in case CMU chose to cancel it.  Plus they sent in people from all over the state to assist with the job action.  I've seen how collective action can bring people together.  We've had several closed door meetings where almost all of the 600+ faculty members on campus attended.  People came willingly too, not like the annual college-wide meetings where they take attendance and threaten to dock your pay if you don't come in order to encourage attendance.  I've seen what a great tool Facebook is for sharing information.  Our closed group page for CMU faculty has an enormous amount of information on it.  On the downside, it's very clear from numerous comments at the meetings and on Facebook that the faculty's relationship with the University has been severely damaged by this situation.  One of the reasons I love working at CMU is the great relationship among employees on campus and the various policies CMU has in place that benefit employees.  I'm hoping that today's ruling is a step towards amicably resolving the bargaining issues that remain and in restoring the damaged relationship between the faculty and the administration.  I think it we will still have a long road to walk though.  I'm sure some of it will be with picket signs!

An Injunction Against the Missouri Facebook Law

Late this Friday afternoon, only 4 days before the law was scheduled to go into effect, word came that a judge in Missouri has issued an injunction against implementation of the Missouri anti-social networking (Facebook) law between teachers and students. Here is a local story on it (thanks to my good friend Dave Doty @canyonsdave). Also, thanks to the Missouri State Teachers' Association, who filed the suit, for following up on twitter with their press release. 

First, this is just a preliminary injunction. This is not a final judgment and the matter is still to be decided. 

But, the language the judge used is outstanding. Please, give it a read: 

[The law implicates the First Amendment and the Missouri Constitution.] "Even if a complete ban on certain forms of communication between certain individuals could be construed as content nuetral and only a reasonable restriction on "time, place and manner," the breadth of the prohibition is staggering. The Court finds ... social networking is extensively used by educators. It is often the primary, if not sole manner, of communication between the Plaintiffs and their students. Examination of the statute indicates that it would prohibit all teachers from using any non-work-related social networking sites which allow exclusive access with current or former students. It clearly prohibits communication between family members and their teacher parents using these types of sites. The Court finds that the statute would have a chilling effect on speech."

Well, yeah. Of course. In an upcoming article in the Journal of School Leadership, I predicted as much if a state tried to ban Facebook in this way. This judge is clearly on the same wave-length. I just don't see how a law similar to this one has a chance of being constitutional. There is just too much protected speech that will be chilled. The example I used in the article is my.barackobama.com - where teachers and students must be free to interact in any reasonable interpretation of the First Amendment. Those kinds of examples are probably not what the legislators in Missouri were thinking of when they wrote the law, but putting a broad ban on social networking is going to chill all kinds of clearly constitutional speech. I think the judge understood that and really had no choice but to issue the injunction. 

This is a great victory for the Missouri teachers. But, it is just the first decision in what promises to be an extended legal battle that will probably eventually wind up in the Missouri Supreme Court. 

Kentucky on iTunesU

Today we launched the Kentucky iTunesU network (link will ask you to open iTunes and say yes) at Woodford County High School where the school is moving this fall to a 1-1 iPad environment. It was a project of the Technology Leadership Lab at the UK College of Education, which is now CASTLE. It was also in partnership with the Kentucky Department of Education, Kentucky Educational Television and Woodford County School District.

Thus, in particular, I would like to thank Marty Park, Brian Spellman and Greg French, respectively, for being part of the core team that made this event happen. Dr. Scott Hawkins, the superintendent, and Rob Akers, the principal, were also instrumental because they let us invade their school (and convinced their district to move toward 1-1 tablets). Also, thanks to the speakers for coming and sharing their thoughts: Gov. Steve Beshear, President Eli Capilouto, Director Shea Hopkins and Commissioner Terry Holliday. There are also a lot of other people to thank that made this event possible, my law student Chase Bannister, the press teams at UK, KDE and KET, the various teachers and staff at Woodford County High School, and many others. 

Here is some of the media coverage of the event:

LEX 18 (Video)

WKYT (Video)

Kentucky Herald Leader (Newspaper)

State Journal in Frankfort (Newspaper)

WUKY (radio)

So, this was a fabulous event. I'm proud we brough this to launch (been working on it for about a year and a half (far too long)) and happy that it might be useful to students around Kentucky. So, thanks to all for helping ... and now it is on to the next project. 

Till the Law Comes to Call ...

No more ministers leading a prayer before football games for one of our southern Kentucky counties (down at the Cumberland Gap - which is worth reading about if you have a minute). 

All of this nonsense is well and good until the law comes to call. I get it. I'm from a rural area and we prayed before each high school game too (yes, I my playing time consisted of rooting from the sidelines, of course). The principal and superintendent in that district probably knew full well that it was wrong (there is plenty of precedence out there on it), but the coach probably begged and the local board president has probably mentioned how lovely it is that we have God on our side against Hazard or whomever. But, when you get caught (like they did), it is just best to own up to it and change your behavior. Doubling down on behavior like that only digs a deeper grave. 

So, everyone keeps their job, the district loses no money, the football team will probably not lose any more games, and life goes on. A couple years from now, few will even remember it. 

That's what you do when the law comes to call. 

Missouri: Enter the ACLU

Well, this was just a matter of time. The ACLU is suing the state of Missouri against their Facebook law. 

Actually, you have to give the ACLU some credit lately. They are also watching schools for limiting some speech by blocking certain websites in a discriminatory fashion. Just in Missouri this last week the ACLU got a consortium of districts to unblock some pro-LGBT sites that they had been blocking. 

You can think what you want of the ACLU and there has been occassions where I have disagreed with their positions, but for now the ACLU seems to be on the side of proper and healthy technology integration in schools. 

Temporary Restraining Order Issued

So, I spent the day at the crisis center answering questions about what was going on.  The most common question was whether we had additional t-shirts or buttons to support the cause.  CMU's faculty association has been ordered back to work by a local judge.  Here's the ex parte order: http://cmich.edu/documents/faculty/temp_restraining_order.pdf

It says that the university will suffer irreparable injury without it and it prohibits us from doing anything that is not the full, faithful and proper performance of our job duties.  The order says we cannot mass picket.  The word on the street is that students are planning protests for tomorrow.  

The hearing on the temporary restraining order is on Friday.  

Here's a news report on the situation.

Judge to CMU faculty: get back to work: woodtv.com

Picketing at CMU

Here I am on the picket line this morning (on the left).  The faculty association greeted the administration at 7 a.m. this morning with a sea of yellow shirts and signs.  I'm assigned to the crisis center.  Maybe my legal expertise will come in handy ...

Here's some commentary on the subject: http://www.cm-life.com/2011/08/22/editorial-work-stoppage-by-faculty-an-answer-to-university-inaction/

Job action at CMU?

For those of you who don't know, I'm a faculty member at Central Michigan University.  Classes are scheduled to start tomorrow, but, according to our campus newspaper, that won't happen.  Here's the article :

http://www.ourmidland.com/news/article_18146da4-cc5e-11e0-a80a-001cc4c03286.html

I'm not allowed to comment on this situation at this time, but maybe I'll post some pictures for you from the picket line.

Attorney General Opinions for Education

So, tonight is my first real deep foray into the usefulness of Attorney General opinions in educational settings ... and, I am really impressed by them. Any lawyer coming out of law school should at least be aware of attorney general opinions as an element of the legal system, but I do not think everyone is aware of exactly what kind of role those opinions can have. Certainly, I can say that I did not. 

But, after sitting tonight and reading about 30 historical opinions on the Kentucky Education Reform Act, I have to say how superbly useful they were to the implementation of that law, especially in relationship to Kentucky's School Based Decision Making Counsels. 

Anyway, consider using an Attorney General's opinion in the future in your state if you have a complex legal question that is unclear in statutory or regulatory language. 

A (lack of) Nationwide Student Protest

Just wondering why it hasn't happened yet. It is sort of the rage all across the planet now, with some specifically about education policy, in case you didn't know, and it just seems like it is time here. Students are organizing stuff like flash mobs at universities all across the country (here is ours), so I am a little surprised there are not organized protests for well ... anything whatsoever. Clearly the technology makes organizing something like this so simple, it just seems like something would have triggered such a public display of outrage by now. 

Just an observation. Curious as to your thoughts on why ...

Gambling on Education - Collectively Doubling Down on our Great American Bet

When I was in my first semester of my first year of law school, the professor I disliked the most (since retired, thankfully) said something that has always stuck with me deeply: "There are 2 investments that always pay off: Land and Education." To first year law students, law professors are like Gods. Especially one so willing to squeeze as he held our legal lives in his hand. 

Obviously, with not only this in mind, I invested heavily in education to the tune of two doctorates, a masters, and around $80,000 in debt (the only reason it is that low is that I did community college and public schools). Later, when I get a chance, I plan to try the other half of his formula. So, keep in mind that not only did I personally invest heavily in higher education, I have seen the promised good returns at least so far.  

But, at some point, even the safest "investment" becomes a gamble. I think education is crossing that border. New data from the Wall Street Journal and Federal Reserve today show that while America has tightened our belts in every aspect of spending, we as a group are continuing to individually double down on education.  

As an educator, and a direct beneficiary of America's (particularly Kentucky's) higher education habit, I am somewhat honored that America continues to put their trust in us to bring them worthy returns. But, at the same time, I am also cautious of an individual betting too heavily on this investment and bearing all of this risk. 

America's great national bet has always been on our people. We have invested and put our trust in our people and we have shown good returns time and again. In particular, we have bet on our youth. If we pour resources into our youth, generation after generation will reward the investment. I know I am personally planning to pay off every cent invested in me twice over or more - and I am building that same responsible passion into my children. Thus, it is on this gamble, that we have built not only a strong middle class, but a strong country - generation after generation. 

From an economic standpoint, there is nothing more productive than an educated and motivated population. If anything, we need to continue to push more higher education (and better P-12 education) out to the general public (and I'm fine with demanding better returns, also). But, at some point, we have to question just how much debt Paul Q. Public can sustain and still return profit on his or her investment not only for himself, but for us generally.

Therefore, I think we need to be asking ourselves quickly whether or not it is economically sensible to continue to pass the vast majority of that cost into future debt payments from the very students we are entrusting with building our future. 

I am more and more convinced that as a nation, we must bear more of this cost. I still want each person (at least each middle and working class person) to have to pay back debt. There is something motivating about that prospect and makes me work later nights than I otherwise would have. But, for many people the "investment" is appearing more and more as a personal gamble - and rightly so. It is closing off access to higher education to many in society who simply cannot fathom taking on a hundred grand in debt when they come from a family that lives on thirty thousand a year hourly wages. Not only is their potential productivity reduced, but their understanding of the great American gamble on all of our people is also reduced.  

As this debt "super committee" is considering all the options, I hope many of them were told the same investment story as my law professor bestowed on me. Adding new taxes should certainly be on the table, but those taxes should not go toward highways or space shuttles or even more crazy lab research at higher education institutions (no offense to my colleagues). We just need as a country to reinvest in our future - our young people - as generations before us have done. We need to make sure that our young people understand that this is a country where you can gamble big on learning - as long as you are willing to reinvest your knowledge and skills back into our collective group over your lifetime.

We are passing off our economic mistakes onto our youth, not just figuratively through national debt debates, but extremely directly and personally (look again at the chart above). We need to stop it, quickly. Our's can not be the generation that loses sight of the gamble that got us to where we are today. My law professor may have been a jerk (and believe me he was), but he passed down the knowledge of the generation before him: land and education. Let's not lose sight of that. 

Early Childhood Education Law Resources? Or Not.

This afternoon I am presenting on technology and law (what else, right?) to the Kentucky Infant - Toddler Institute. I was a high school teacher, so early childhood education is pretty far from my area of expertise. The only real expertise I have on this topic is simply because of my kids (it was Matthew's first day of Kindergartern, by the way, so I had to attach a picture from this morning). 

Anyway, where are the early childhood education law resources? I looked around a little on the net and found a few valuable things, but there is no textbooks out there on this. Not a lot of online guides. There seems to be some special education stuff, but generally it seems a relatively neglected area of the law. From a legal standpoint only, this is sort of a problem because there are a lot of legal complexities in early childhood, in particular. There are a lot of different types of providers out there, and differing legal systems might apply in differing situations. 

So, some enterprising young researcher out there with an early childhood background, here is a niche for you. We could use some help here. 

Why Don't Classrooms Look Like This?

This is a picture of our Lab Space (The Keep) in Dickey Hall at the University of Kentucky (notice the play-doh). We have students workspace in this room and a conference table and whatnot. We developed this room from a former computer lab for about a couple thousand (mostly of our own money).

So, I am sitting here (that's my laptop) trying to find the right room for my class of about 20 principal students to meet in this Fall. I don't want a classroom with those 1954 squeeze-your-butt-in-desks and I'm not a huge fan of the industrial square table room either. So, it struck me ... why don't our classrooms look like where I am sitting right now? I want a classroom full of couches! Maybe even a flatscreen on the wall. And plants. Why don't we have plants in our higher education classrooms? And, yeah, play-doh. 

I'm serious. Why don't our higher education classrooms look like this? 

Leaders v. Reformers - Mistaking the Gloss

There is a difference. I do not think they are mutually exclusive, but I think they are too often confused. This page, for instance, is a mix of reformers and leaders, but not necessarily both as they are improperly labeled. How can you call Robert Bobb a leader? He is an administrator, but his "intention" to lead change does not equate with leadership. Michelle Rhee, too, is much more a reformer than a leader. 

Yesterday, I got to spend the day with Carmen Coleman, the Superintendent in Danville Independent here in Kentucky. Carmen is a leader, then a reformer. Leading the district is the primary task, it just so happens the right path for the district is through reform. 

It annoys me that people like Michelle Rhee or most of the other names that get tossed around are called the "education leaders" of this country. That's, frankly, a load of B.S. Michelle Rhee is a leader in the reform movement, but is not an education leader in the same way that Carmen is. 

As we view the structure of our system, let's just not confuse the glossy paint of reform with the steel studs of leadership. The color of the walls will change frequently - but that the wall exists is thanks to leadership. 

An Education Technology Policy Job

As Policy Director at iNACOL - a professional association and advocacy organization for online learning, and a large player in the Virtual School environment. I would really like to see an educational lawyer in this job - and in particular one that has some touch with the educational law scholarly community ... so, I thought I would post it. 

Fellow CASTLE blogger Michael Barbour sent over the tip (for more info and a different take on the position, read the comments). If you have any interest in virtual schools or other online learning in K-12, he absolutely needs to be in your Reader. 

Diffusing the NCLB Bomb: A Final Conservative Federal Education Expansion

Today was inevitable, really. And, everyone knew it. Washington's plan was simply untenable. It could never work the way it was written. 

(No, not referring to the debt crisis and downgrade and, well, the plunge today (don't get me started, just go here, please)).  

Everyone knew NCLB's accountability provisions were a ticking bomb. They were never going to work. While some speculated that the bomb was intentional to blow-up public schools in favor of private and other options, that there was a hidden bomb in NCLB was unquestioned by even those with cursory knowledge of the law. 

Lately states, such as mine, were getting tired of the inevitable countdown to 0 (as in the total number of passing schools on the accountability indexes). The grumbles were growing louder, yet nothing happened in Washington (they were too busy messing with our credit score). In reality, there was never so much as serious talk of a NCLB reauthorization timetable. Reauthorization may still be two or more years away and by then the bomb might actually explode. 

So, today, the U.S. Department of Education took a big step. A unilaterial step. Perhaps an unauthorized step. Relevant quote:

The administration’s plan amounts to the most sweeping use of executive authority to rewrite federal education law since Washington expanded its involvement in education in the 1960s. 

This is a complicated issue, so please don't think we are going to cover it all in this blog post. But, there are a few critical factors worth explaining:

1. This limits the role of the federal government. States, like Kentucky, will probably get to write their own accountability systems again. This brings the federal role more in line with the Tenth Amendment and the general concept of federalism in education. 

2. This expands the role of the federal government. Yes, contradictory I know. Even though an individual state will get to write their own plans, the federal government has sign-off authority. As was shown with Race-to-the-Top, the Feds are not above using that kind of authority for coercion. Already in their public statements on this change, it is very clear that this will be a coercion mechanism to get the kind of reform Washington wants. Coercing states is more in line with the spending power of the Constitution, but much less in line with the Tenth Amendment.  

3. The biggest expansion of the day, though, was of the power of the U.S. Department of Education. They are now front and center for education reform in this country. Many would argue (probably including me) that this is not their place not only under the Tenth Amendment, but also under generally understood principles of administrative law authorized by Article II (today was a possible infringement on Article I (ultimately, Article III might have to resolve this ... confusing enough for you?)). 

What does all this mean? I don't know. The federal role in education is probably expanding, but it is doing it through the back door. As such, few people are really noticing and those that do have few options because they are already in the house. Federal expansion is a bit of a bell that cannot be unrung. That the federal role is expanding ... is likely inevitable. Today was just a different route toward doing so that positioned the Department of Education (and not Congress, nor the States) as the central accountability mechanism for education in the United States. 

That they expanded today by actually helping states diffuse the bomb ... was creative and interesting. Because of that, a serious constitutional challenge might be avoided. In the next few weeks, we will likely see bills filed in Congress and new committee hearings and some pomp and circumstance against this - but, I would be surprised if this plan is not implemented and that this is not the framework for a reauthorization, whoever gets elected president next time. 

So, today the NCLB Bomb was largely diffused. Good. It needed to be. But, in doing so, the federal government's role was expanded once again. A final, ironic chapter in the conservatively sponsored NCLB Act.