The book, Professional Responsibility for Educators and the Michigan Code of Ethics, is available from Omni Publishers.

As Sherman Dorn notes on Twitter, it is probably a good idea to make such donations on your phones (less likely to be state owned). My wife even adds that apparently you can now even make donations by texting to some political campaigns.

(oddly, making a donation to a super-pac might be more palatable ... but then public employees don't have that kind of money). 

Anyway, please exercise your right to make your financial voices heard ... just not on a device you didn't pay for yourself.   

Here's the thing. I do not care all that much legally what you put in that policy, with one exception ... just don't ban anything. You cannot ban Facebook. You cannot ban Twitter. You cannot ban teachers from talking to kids outside of school. If the First Amendment says anything, it is that you can share your ideas without governmental interference when they have no legitimate reason to regulate. That a person is a teacher is not a legitimate reason to regulate all their speech, all the time. It isn't. Trust me. 

To show you, let's get conservative just because that is how our current Court leans. Let's say a school board wanted to ban a teacher from religious speech (participating in this prayer social website, for instance). Would that fly with the current court? No freaking way. None. Facebook is not different. Why? Well, look at this site - the Hawaii Catholic Youth and Adult Ministry Facebook Group. Can we ban teachers from talking to students on that site? No, we can't. They have both an expression and free exercise right to do so. Thus, we cannot ban Facebook. We also cannot ban teachers from talking to students on Facebook. Bans do not work in this space. There is just far, far too much constitutional history on the other side of that argument and way, way too many different scenarios that would be banned all in one fell swoop. 

Now, you can choose to block these things on your school Internet, that's fine. You can encourage responsibility. You can institute discipline measures for disruptions. You can, well ... be creative. But, banning teachers from using social media in anyway is a step to far, constitutionally speaking. 

But, recently I was made aware of a new textbook on education law that takes a different approach to publishing, namely, no publisher. John Dayton's new book, Education Law: Principles, Policy & Practice, has taken a self-publishing approach. It is a very comprehensive (480 pages) look at education law. It is also not a casebook, meaning John actually wrote all of the text. There is also a Kindle version coming soon. I have just briefly scanned the book and find it to be very well constructed and particularly strong on constitutional issues. It was clearly a labor of love and I recommend you at least give it a look on Amazon. To those folks teaching law out there, I'm sure if you contacted John he could get you part of the book to review even.

What is really interesting to me about the book, though, is that it signals a new potential path for publishing that changes the game. How, you ask?

(1) First, this type of publishing keeps costs much lower. So much of the price of a textbook is wrapped up in the publisher's overhead costs and not in the actual printing of the book. Pearson, all of those teaching in universities know, has an enormous staff. I have a personal Pearson representative that stops in my office about every three months. That is a salary John Dayton does not have to pay, nor does Amazon, nor does the start-up partner CreateSpace, and most importantly nor do any customers. In essence, all the cost of this book entails is the compensation for the time John spent writing it, the very small amount he paid CreateSpace to help with the process, and the cut Amazon takes. The author, usually the professor, is not in this for the money. There is some money, don't get me wrong, but ask your standard textbook author whether they care about the royalties and I bet they do not. There are so many other, and better, reasons to do it anyway (although I'm not sure vita-boost counts as better). Nevertheless, very few professors are motivated by the royalty money. Bottom line? 

Most popular text in education law: $172.30
Second most popular and one I favor: $110.99
This new textbook: $35.99 

Ask your students out there which one they favor. 

(2) Copyright. As an author, when you work with a standard publisher you lose the copyright to your work. The publisher holds and controls the rights to the future use of the book. This is a bad thing for everyone but the publisher. When a book runs initially, I do not mind the publisher recouping their costs even with a little extra added on for profit. What I do mind is the publisher keeping the rights of that book under lock and key long after their investment as been paid off and the book is marketable. Standard copyright these days is around 100 years. Thus, any traditional book (or journal article for that matter) is useful only while marketable and only to those capable and willing to pay the price (see #1, above).

Take away this traditional copyright game, however, and a whole new world opens up. An author has so many more options both in the near term and in the long term. The author can share the book with whomever he/she pleases. Can choose to use it in their own classes free of charge. Can partner with professional organizations to make snippets public. Can create websites that do so many different things. Can put the text out in ePUB, so it is digital and interactive. Can update the text whenever. And on and on. The long-term, though, is even more interesting to me. Once an author recoups the initial costs, why not release the text to the public with a Creative Commons license? Let the world share and remix and build from the text? Why not? So many awesome possibilities ... that are not behind a 100 year firewall.  

(3) Flexibility - When I write my textbook, I am going to put YouTube videos in it. No, not as some add on CD or some outside website with a crappy URL ... I mean seriously right in the text, sometimes in place of the text, right there seamlessly in the book. Why try to describe Savana Redding's case when she can describe it for herself? Seriously? When the few (and believe me, still few) publishers that have solicited me to write for them hear this, their eyes get really big and they cock their head a bit in confusion and look for an exit. But, I am serious. Traditional publishers ... are traditional. Print offers very little flexibility. Black, white, 8 1/2 x 11 ... that's about it. Digital text is different.

Ultimately, why I wanted to write this post is just to let you know it is okay to think differently about publishing. To have different expectations of authors, publishers, booksellers, and consumers. The inertia in the traditional publishing model is deep and long-lasting. We are going to be printing books in publishing houses for a great while longer. But, it is not the only model now. In niche fields like ours, it may not even be the best model. Certainly this book is a test case and we shall see in a few years the results. But, whether or not this effort is successful, it will not be the last effort (yes, that is a personal promise). Information is different now and it needs to be treated differently. This was one bold step forward along that path.

Bravo, Professor Dayton. Thank you for being a leader.    

After their win v. VCU, Coach Tom Crean of IU was interviewed by CBS. The first thing he mentioned in the interview was,

“We pray before every game, and one of the biggest things is God gives us the tools and the courage but it is our responsibility  to do the work.”

Struck me as a bit odd, but certainly not out of the ordinary. In fact, I eagerly googled his comments for this post thinking there would be some debate, but found no controversy at all. It is so normal we do not even notice anymore, I think. 

But, here is IU's representative, who gets paid a lot, on the biggest stage starting with "We pray before every game." Are we okay with this? Indiana University (an awesome school, might I add) is public and has 40,000 students, a fair number of which I'm guessing are not that into prayer toward this particular "God." Heck, I'm an alumnus and I'm not sure I'm totally okay with it. 

From a legal perspective, I certainly do not like this. I know it would be a difficult situation to challenge, but if challenged, I would worry about the Establishment Clause implications. And, it is very hard to make a Free Exercise claim on the other side of this. 

So, thoughts? Is this worth trying to tamp down? 

*P.S. - And, don't even go there. No, I am not doing this because UK plays IU this week and they beat us once already this year. Crean was just the one I happened to catch (because I was watching the game as an IU fan). 

But, harder question, is this good for our classrooms? Openness is generally a good thing, so hard to find much fault in it, understandably. But, sometimes the actions that are needed for students are actions that do not come off well in video. I'll remind you that corporeal punishment is still legal in a large number of states. That is not going to come off well on video even though legislatures still consider it an appropriate disciplinary tool.

The classroom in Nashville was clearly out of control and students were not showing the proper deference to the teacher. Now, a good teacher would not let it get to that point and would have better ideas for resolving that situation than flipping over desks. But, to think all of our teachers are going to know what to do when presented with that situation is naive. There are over 3 million teachers in the U.S. ... but there are certainly over 3 million smart phones in the classroom right now. Thus, there is a high potential that each teacher might be recorded at some point ... that point being their lowest more often than not. Thus, teachers are much less likely to reach those low points. Is that good? Probably, but let's also acknowledge that lowpoints are not necessarily bad points in a teacher's career. A low point can be a great learning experience for both the teacher and the students if handled properly. Specifically, those low points can frequently show students just where the boundaries of that classroom lie and, sometimes, students will at least respect that point. 

As you can see, I'm not real sure of my thoughts on this one, so I'd be happy to hear yours. 

Thoughts? 

Just to kick it off ... I'm okay with the regulation in this case. I'll say more after people lambast me for that position. 

Whatever you think about this case, it is a wonderful teaching tool and I hope some of you use this scenario in your classes. 

H/T to @jonbecker for bringing it to my attention.

Sch. Law Profs - stop telling your students they can strip search. I don't care what narrow legal exception exists, there is so little to be gained outside of an immediate threat (i.e. a gun). 

It is stupid and unnecessary and nearly always ends poorly (and with lawsuits). 

Here is the latest: 

P.S. - Isn't it a bit ironic that the person fired in this case for doing the search was named Redding? Poetic, a bit, isn't it. 

I have said before in my scholarship that Washington’s Supreme Court is one of the more interesting in the country in the area of school finance because, rather than issuing under-theorized accounts of rights to education as other state courts have, Washington’s Court, in its initial school finance decision (Seattle School District No. 1 v. State, 90 Wash. 2d 476, 585 P.2d 71 (Wash. 1978)), carefully derived from the education duty provision in its state constitution a correlative individual right to an education held by each Washington resident child.  In McCleary, the Court reaffirmed this holding from Seattle and used it as the justification for stringent judicial review of the legislature’s past actions, particularly its actions in cutting expenditures on certain budgetary items and forcing these expenditures to be funded through less-reliable local sources.  A few general principles emerge from the decision:

First, the Court developed a way to review budgetary cuts for their rationality that is, I think, either new or newly explicit among school finance cases.  The Court explained that, where the legislature cuts part of the education budget, it may not justify such a cut based on lack of funds availability alone (clearly a garden-variety rational basis that would justify cuts to any other budget item).  Rather, the legislature must justify all cuts to the education budget with education-related reasons, in effect adopting some of Helen Hershkoff’s earlier proposed metrics for constitutional review of affirmative rights.  The upshot of this innovation is that something more than a rational basis is required.  The required standard seems to be more of a “rational direction” test—Is the cut or expenditure decision rationally directed at the constitutionally prescribed goal (“ample support” for education, in Washington’s case)? 

Second, the Court reversed the lower court’s order that the legislature commission a study of the true cost of providing an adequate education, a familiar, almost pro forma remedy that every school finance plaintiff group seeks these days.  In my view, this was a very sound reversal.  The legislature, in the preceding years, had commissioned several such studies, each at a cost of over 1 million dollars.  The problem was not the state’s failure to determine what a “basic education” costs, but the failure to fund it fully once determined. 

Third, the Court's decision revealed that evidence of inequality is far more important to judges in adequacy cases than evidence of the overall quality of the system, especially in the form of test scores and other outputs (echoing portions of recent work by James Ryan).  Although the Court defined the basic content of a sufficient education by referencing the state content standards, the chief problem the Court saw with the legislature's existing program was that localities were required (with varying levels of effort based on local property wealth) to fund large portions of the achievement of the stated standards.  That's an equity analysis, not an adequacy analysis. 

These are what I view to be the positive developments in the case, but there were also a couple of negative—or at least disappointing—trends that generally exist in the school finance cases that were adopted and continued in this case.  First, the Court engaged and adopted its prior holding that the education duty set forth in the state constitution is a duty that falls equally on all branches of state government.  Courts around the country have seized on non-specific language in their education articles to justify judicial review of legislative policy priority weighing by holding similarly.  Simply put, if the duty rests on all three branches, then no branch deserves any deference, especially not total deference.  But this makes absolutely no sense in practice.  A duty, to be meaningful, must be enforceable.  Given that principle, what if some group of residents is unsatisfied with the Court’s resolution of this matter?  Since the duty rests equally on the Court’s shoulders, may that group now sue the Court for violating the duty?  Will the Court be the ultimate judge in this case?  I think it is preferable for courts to justify judicial reveiw without confusing the governmental actor that bears the burden of an affirmative constitutional duty. 

Second, although the Washington Court did an admirable job in Seattle of using the scholarship of Wesley Newcomb Hohfeld to derive a defensible conception of an individual positive right to education from the affirmative duty set forth in the state constitution, it approached the McCreary case without any regard to individual harm whatsoever.  In short, individual rights were meaningless—other than rhetorically—in the decision process.  I continue to believe that recognizing individual rights, but failing to consider individual harms and individual remedies, does violence to the idea of rights in general. 

There’s lots more to say about this important decision, but these are my first impressions.  I welcome comments, corrections, addenda, etc. 

I have used this in my church/state teaching now for years, but this is the first time I saw the entire 2 hour special in a single YouTube video (YouTube recently changed its rule to allow uploading of content over 15 min. in duration). I use the very first part, the teaser trailer, to set up a vivid church/state & instructional issues discussion that always goes well. 

Justin and I visited the University of South Carolina today.  We were in Columbia for a friend's (Assistant Professor Jesulon Gibbs Brown) wedding.  We toured the campus.  The highlights were the Colleges of Education and Law.  I think that is because we both teach education law.  One highlight is that we found an Institute for Education Law in USC's Law School.  Of course no one was actually there since it's break, but we think that is where the Journal of Law and Education is located.

The faculty participated in a job action on August 22nd after our contract expired on June 30, 2011.  Because of a new Michigan law, CMU refused to pay any wage increases to faculty members and shifted the cost of health care premiums to faculty members once the contract expired.  Negotiations have been ongoing since last spring, and a fact finder was called in to assist with the process.  His report was issued last month.  CMU offered to accept their interpretation of the fact finder's recommendations.  The FA didn't agree with the administration's position and rejected the offer but countered with terms for a one year contract.  This was rejected by CMU.  

The injunction against the FA engaging in job actions expired on Wednesday and a hearing with Judge Chamberlain was scheduled yesterday on both the extension of the injunction and the legality of the law preventing wage increases and shifting health care benefit cost increases to public employees when their collective bargaining agreements expire.  These rulings were not made since a TA was reached.

Following this situation has been my introduction to the collective bargaining process.  I'm going to reserve judgment on whether I think this process is beneficial until I see the final offer compared to the initial offers and the overall impact on the university's culture.  My experience thus far is that CMU has been a wonderful place to work with great students, dedicated faculty members and an adminstration that has many faculty friendly policies in place.  It's been tense on campus this fall with faculty members so unhappy about not having contracts and the terms that were being offered.  I think it's helped with unity among faculty members but definitely hurt faculty/administrator relationships.  We'll see how far this potential agreement goes to repair relationships.  

Here's a link to Michigan's PA 54: http://www.legislature.mi.gov/documents/2011-2012/publicact/pdf/2011-PA-0054.pdf

University of Kentucky College of Law
James and Mary Lassiter Endowed Distinguished Visiting Professor

The University of Kentucky College of Law seeks applications and nominations for the James and Mary Lassiter Endowed Distinguished Visiting Professor for one semester of the 2012-13 academic year. The Lassiter Distinguished Visiting Professor recognizes a faculty member who has demonstrated outstanding achievement in his or her field and is not limited by subject matter.

JOB QUALIFICATIONS: Applicants or nominees should have a record of scholarly excellence and of strong classroom teaching. The Lassiter Distinguished Visitor will teach one or two courses and will be encouraged to present workshops on research and participate broadly in the intellectual life of the College of Law.

The University of Kentucky College of Law is committed to diversifying its community and consequently welcomes expressions of interest from, or nominations of, professors who contribute to that diversity. The University of Kentucky is an equal opportunity campus and encourages any candidates who will contribute to the excellence of the academic community through their research, teaching, and service.

APPLICATION PROCEDURE: Review of candidates will begin upon receipt. Expressions of interest and nominations should be submitted no later than January 23, 2012 and should be directed to:

Prof. Bob Schwemm
Ashland Research Professor of Law
Chair, Lassiter Search Committee
University of Kentucky College of Law
209 Law Building
Lexington, KY 40506-0048
Schwemmr@uky.edu
859.257.6013

So, some thoughts regarding this blog:

1. Great presenting with Mark Walsh of Ed Week and the School Law Blog, again. We were invited to present a session on technology and blogging and we had a great crowd. For those of you at the session, a post is coming here with some of the data and links we mentioned in the session. But, the session was interesting in that not only was it very well attended but it was also attended with generally enthusiastic crowd that was excited to see new ideas with technology.  

2. ELA seems to be turning a page regarding their acceptance of technology. For years (and still continuing) I think people looked at me and other techy folks as a little crazy. We (I) was outside the norm and therefore someone to either be ignored or to marginalize. Well, something has changed this year. Now, there is not just acceptance but nearly genuine excitement about what we can accomplish using some of these new tools. Other contributing professors are also pushing the Edjurist and taking some ownership. This development is so extremely heart warming. Obviously, personally, having developed this resource has been a passionate love affair, but it has always been a risk. To see it transition to something that is mainstream and something that other scholars feel is a core resource to our field is almost enough to bring me to tears.  

3. Because of that, I am having some serious thoughts about making some big changes here at the Edjurist. Now that I have another outlet to put some of my more controversial (and less research based) thoughts on technology and education at Education Recoded (please, go check that out and add it to your reader) it is probably time for the Edjurist to mature a little bit into something a bit more mainstream and more scholarly. It may also be time to consider a more formal partnership with ELA or another organization (I'm listening to offers) that will provide a bit more of a formal justification for adding these posts to people's vitas (which is the end-all for keeping your job as a professor).

4. Some of the changes I am considering are: 

• Expanding our contributor base. Perhaps doubling or more our list of contributing scholars would get more and more relevant content out there to you readers. 
• Taking and publishing submissions from non-contributors, so that anyone, including people that are not legal scholars, can publish information here. 
• Creating different types of publications here. From simply updating blog posts, to perhaps more extended scholarly articles (with citations). In this way, I could see elements of the Edjurist evolving into somewhat of a peer-reviewed journal. 
• Peer-reviewed posts. With our (expanded) team of contributors, we could potentially take some of the posts and elevate them to peer reviewed status. While it won't count as a peer-reviewed electronic journal article (and I do not intend to post those), it does provide a level of confidence to the posts that things like tenure committee's could take some additional faith in. 
• Many, many more teaching resources. In the past, I've put up my own courseware, but I want to expand beyond that to including resources, organized by topic, that anyone could use, but particularly those teaching education law. I have been requested, by Kevin Welner amongst others, to do this in the past, so perhaps now is the right time to make a larger push here. In the past, I and Jon Becker have worked with NASSP to build a set of online school law resources. Perhaps it is time to work with them again to get some more of those available. 
• Integrating tweets and other online resources. In the past year, a substantial base of people on twitter have developed enough to keep some relevant and fresh information on school law coming in from twitter. 
• Building and syndicating a free newsletter that administrator organizations can publish in their magazines each month. This is a bit of a stretch, but if there is a substantial interest, perhaps something to pursue.   

So, if anyone wants to chime in on some rethinking here, please let me know either in a comment or just personally.