ELA Proposal Deadline 2010

The Education Law Association's annual conference for 2010 is in Vancouver -- that's right, Olympic-central at the moment. Anyway, if you want to go and get it paid for by your university, district or firm, you probably need to submit a proposal (guidelines) and the deadline for that is March 1.  The awesome thing about ELA is that they don't require long proposals - so, submit several. ELA will choose only one, but given that the conference is in Vancouver, the economy is down, and the intimate group that ELA always has been, you have a very good chance at success. I hope to see you there (preferably also in the Vancouver bars after the sessions!). 

Online Terms of Use Agreements and Teacher Liability

A couple weeks ago I presented virtually at EduCon 2.2 in Philadelphia (although I was in snowy Lexington). Jon Becker created the session called Stump the Lawyers. 

Anyway, they stumped us (sort of, I sheepishly admit, although certainly we being lawyers we had something to say, even if it didn't relate).

The question is what are the legal ramifications of this scenario (here is how Jeremy Brueck wrote it in his notes):

A teacher wants to do an activity with her 5th graders. The activity requires the use of online software, which either runs online or is a download. To access the program, the user has to agree to a "terms of use" agreement. Like many of these, it contains an age provision (typically 13) (here is a typical example: Blogger). The teacher proceeds anyway to (1) either create an account for the students or (2) encourages the students to check the "I agree to the terms of service" button anyway - or other variations on that same theme. Anyway, the point is that a 12 year old or younger student is using a website with a terms of service agreement that requires them to be 13 or older. Something bad then happens; either (1) the students violate the terms of service or (2) some type of injury occurs (think sexting) and the parents sue everyone. 

I had written up a long list of possible ramifications (and spent more than an hour doing so), but the legal components of each of these are so hazy that I think I would be doing everyone a disservice by making guesses without more research - so I pasted it in a Google Doc that I'll try to work up into some kind of article if I ever get time.

First, this gets into some very complicated areas of contract law, of which I am very much a novice. There are issues of infancy, misrepresentation (both intentional and negligent), coercion, and others. Depending on how it fell out, there could be 10 or more claims just on this contract issue. So, let's not go there. I will make the point that students have been held to clickwrap agreements (my concerns with that case) and that I don't think there would be much difference for teachers who have misrepresented. So, let's not go there for now.  Also, I think there are possible issues of identity theft/fraud, Acceptable Use Agreement issues, and possibly others. 

More to the point is the issue of what happens to the school and/or the teacher. Who can possibly sue each and what might happen? Both the school and the teacher are likely to be sued both by the software company and by the parents if there is that type of injury. In fact, there might even be a case of the school suing the teacher. Depending on what exactly happened, fraud might be involved which is clearly outside the scope of a teacher's employment and thus not covered by immunity statutes. So, personal liability for the teacher here is not out of the question. Also, the school is probably going to be open to liability for the acts of its teacher (of which they might try to recover against the teacher later). I don't see the likelihood of big damages awards here, but one can always be surprised. Also, I think the most likely scenario is that the contract is voidable by the software company, meaning that they will mostly likely just lock you out in the future. So, I don't see a ton of legal risk here, although clearly the law is against the school and teacher. 

So, bottom line here is that the teacher is likely to be fired and the school is likely to settle if, in the unlikely event, someone actually has suffered a substantial injury. 

What does this mean for teachers out there wanting to use these online tools?  ... Are you feeling lucky?

Yeah, probably not going to get caught. Even if you do, there is probably not going to be much in the way of damages. So, it's like running to stoplight at 2 in the morning. Know that it is wrong; know that you might get caught and lose your job; then, make your decision. 

Ed Schools: Officially Part of the "Problem" Narrative?

Reading my latest edition of Time Magazine this week, there was a story on school turnarounds and the likely components of NCLB. The article was really neither good or bad, but this struck me: 

Of course, the education establishment (i.e., the teachers' unions and ed schools) likes to remind critics that children are not cogs and what works for companies may not necessarily work for schools.

How flippant, that combo of teachers' unions and ed schools. Are we to be demonized the same way as teachers' unions historically have been? Are we now officially part of the "problem" narrative in the media and amongst politicians? I have been noticing an uptick in the blame associated with ed. schools lately and this seems to be just the latest evidence in our eroding respect. 

This is unfortunate. Education schools can be natural allies for change in education, but attacking them in the way teachers' unions have been historically attacked is likely to have an entrenching effect. If you call them the enemy of change ... they might actually become the enemy of change. And even though there are a ton of problems in education schools (anyone that works with me knows how frustrated I can get with some of our arcane rules), folks like me are trying our best to change ourselves at the same time that we help change our schools. I literally lose sleep at night trying to work through all these issues. 

Now, as in the article, are we naturally skeptic of the corporatization of education ... of course. There is no data that shows that Arne Duncan's corporate turnaround efforts in Chicago worked ... and, yes, we actually care about the data. The last administration demanded that we be scientific in our efforts and only commit to changes that show positive outcomes in data ... and we went partially down that path, but now we are being attacked as impediments to rapid, data-deficient change.

I also get that we are somewhat defenseless, and thus easy targets. So, we are going to take some of the heat, rightly so, for the issues in our education system. But, taking heat and being typecast are two totally different things. I'm fine taking heat and working toward change, but I am not fine with being typecast as the evil empire of education.   

State Agencies and the Space for Change

Had the pleasure of filling in this morning at a meeting of the Council on Postsecondary Education in Frankfort. They had invited Curt Bonk down from IU to come talk to the Board and in a follow-up meeting with higher ed. faculty in the state. It was informative and I found myself taking a lot of notes (which is a sure sign that I'm learning something because I usually don't). 

What struck me though as CPE folks were talking, and inviting University folks to chat as well, is that state administrative agencies, such as CPE, are going to quickly be ahead of our universities in the mentality needed to meet the demands of the digital, global age. For instance, Dr. Bonk brought up Open Access Journals, and I suggested this is an area where CPE could become involved by recommending to universities that scholars publish their works in locations where the people of Kentucky can access them (i.e. not your traditional, academic publishing house journals that are only purchased by university libraries). The people of Kentucky paid for that work, they might as well be able to read it, right? Well, CPE seemed on board, the University reps ... not so much. And, therein lies a very difficult problem when the very people the state relies on for change and new ideas, are the ones that are innately resistant to that change. 

This level of innate resistance in universities, especially public universities, has been brought about by years and years of traditions, bureaucracy, and ethics. This innate resistance stops university folks from even considering the arguments in the first place. On the open access issue, for instance, I would challenge anyone to consider the arguments for and against with an open mind and conclude that traditional paper journals were the superior publishing outlet. But, it is not that university folks are stubborn in holding to the wrong side of the argument ... it's that they don't even consider the argument as an argument in the first place. 

Collectively, this is why we need state actors to force us to at least consider the arguments. Consider online teaching. Consider tenure and promotion changes. Consider integrating with K-12. Consider lifelong PD relationships. Consider it all, frankly. Nothing should be off the table in an environment where universities are struggling to survive anyway. And so, while it is necessary for grassroots movements to push universities from the bottom up, we also are going to need a good deal of top down momentum. The fact CPE would even consider bringing in Curt Bonk is encouraging. CPE gathering faculty together is another encouraging sign. So, I'm hopeful. But, I hope they also see the space they are creating within that environment and very carefully consider which voices are included - because the space created by those conversations has a direct correlate with those voices. 

After all, I was at that meeting by accident. I was just filling in for someone else. Had the composition of that room been different, without strong voices creating the space for change, I'm afraid a very different conversation would have ensued. 

"National" Standards and the Art of Cat Herding

“Standardizing” anything without a forceful mandate is like herding cats. 

In the “national standards” movement, this appears to be what is being attempted.  The entities developing the standards have been hard at work over the past year, and they have recently released drafts of the standards for Language Arts and Math.  As I predicted months ago, the first questions out of the mouths of the state school board officers who have signed on with their intention, in principle, to adopt the standards is, “To what extent do we have to adopt them.”  The answer?  “Lock, stock, and barrel.”  So far, so good.  We can’t call them “standards” if they are not “standardized.”  But I do not see them remaining that way once the cats get loose. 

First, if you read the Education Week article linked above, you can get a sense that the state school board officers (at least out West) have already discerned that the wholesale adoption of standards promulgated outside the state is going to be . . . difficult to sell locally.  We have a strong tradition of local control of education in this country (or at least we think we do), and external mandates are always viewed as inherently suspect. 

The DOE's solution?  Take away the mandate—make it “optional” to adopt the standards.  In theory, we do this all the time in education.  You see, Congress has no constitutional authority to directly legislate in the area of education—the word does not appear anywhere in the Constitution, and Congress may only legislate in areas where the Constitution specifically grants it authority to do so.  However, the Constitution does grant Congress the power to tax and spend to  ". . . provide for the General Welfare of the United States.”  The Supreme Court has interpreted this provision to allow Congress to offer the states money, and attach conditions to such money—what we refer to as “conditional spending.”  By using conditional spending, Congress can induce states to “contract” with it to adopt certain policies that Congress could not directly enact.  Conditional spending, for example, is the constitutional foundation for NCLB and the larger ESEA that it amended, along with IDEA, FERPA, the Civil Rights Act of 1964, etc. 

Most importantly, because conditional spending amounts to a “contract” between a state and the federal government, if a state fails to perform its end of the “bargain,” a remedy readily presents itself—the federal government may simply claw back the funds (like rescission of a normal private party contract).  Because each state theoretically has a “choice” as to whether to accept the funds (and the conditions) in the first place, this arrangement does not offend federalism, so the theory goes.  This all sounds logical in the abstract, but in the real world, it’s complete nonsense.  If a typical state were really to reject federal funds in education, it would be reducing its education funding statewide by an average of seven percent—no state has done this in modern times.  Thus, conditional spending legislation is a powerful tool—the functional equivalent of direct legislation—and it is quite useful where Congress would like to mandate and standardize a practice nationwide (like educating disabled kids, for instance). 

However, we are emphatically not using this tried-and-true process for adoption of the “national” standards.  States are essentially free to choose to adopt them or not, and they will lose no existing funding if they refuse (although they may lose a few points in the “race to the top” competition).  If the state officers already have significant reservations after seeing only a draft, and if the official position on adoption is an inflexible “all or nothing,” though, then I predict that we will get either limited compliance or “lip service” compliance, and states will go back to their varied approaches pretty quickly.  I fail to see what will be “standard” about that. 

It is a familiar axiom that the only way to herd cats is to move their food.  In conditional spending—money is food.  We should probably move it if we really want “national standards.”

Cases about Kids

Colin Firth, who frequently plays a Lawyer on TV, with a "little author of great thoughts." I like them better. Just a small thought, but one that occurred to me tonight as I was reading complex cases about motions to amend, pension system statutory interpretation, student loan interest accrual, the Bankruptcy Code, etc.

Don't get me wrong they are just as important (ok, maybe not the student loan cases) but they are so impersonal, dry and tasteless. Understanding the nuances of the state Administrative Review Act is vitally important to a lawyer's core business model, much more so than understanding student speech. And, that's unfortunate, I think.

It's little wonder that many of us lawyers come to personally reflect the cases we spend our time reading ... impersonal, dry and tasteless. I think it would do us a great service as educational lawyers to make sure that we devote an equal amount of time reading cases about kids.  

Mixed Early Results from Innovative Assignment/Integration Plan

In 2007, the Supreme Court declared the Jefferson County (Louisville) Public Schools’ student assignment policy – a plan that required an African American student enrollment of between 15 and 50 % in all non-magnet schools – to be unconstitutional (PICS v. Seattle School District).  The guidelines had initially been devised so that the district would comply with the mandate from Brown v. Board of Education to eliminate the vestiges of racial segregation in schooling, but by the time of the Court’s decision they were no longer court-mandated.  Rather, the district embraced the goal of diversity by maintaining the strict racial guidelines after having been freed from court supervision.  

The Court struck down this voluntary diversity plan as inconsistent with Brown itself.  Justice Anthony Kennedy, the crucial fifth vote for striking down the plan, wrote a partial concurrence that dared a district to come up with a plan for diversity that used race in a more limited way that would not offend Justice Kennedy – errr, the Constitution. 

JCPS took the bait and, drawing from a similar plan in Berkeley that was upheld in California state court last year, adopted a more nuanced student assignment plan that it hoped would maintain the diversity the district (and its parents, according to surveys) sought. 

In short, the new plan labels neighborhoods throughout the district as either Area A or Area B.  Neighborhoods labeled Area A would be those where:

(a) median income is below the county average;

(b) median adult educational attainment is below the county average;

AND

(c) the percentage of non-white students is above the county average. 

If any of these three criteria were not met, then the neighborhood would be labeled Area B.

Each school is then required to have enrollment between 15 and 50% of students from Area A.  The goal is to avoid high concentrations of students from lower socioeconomic, lower educated, and higher minority neighborhoods and to provide all students with more diverse schools.  Leaving aside the constitutional questions raised by the new plan (which I take a stab at answering here) and some debate about the strategic wisdom of pursuing integration (which I explicitly am not weighing in on), the big question is whether it will successfully maintain diversity in the JCPS schools.

The early results are mixed.  According to a January report from the district, only 42 of the district’s 90 elementary schools fall between the 15-50% Area A range.  The first explanation for this result is that students in grades 2-6 were grandfathered in – meaning no student would be forced to leave her current school to satisfy the new diversity guidelines.  While reasonable, this does not help explain why even just considering the 1^st grade (unaffected by the grandfathering), only 43 schools are within the range.  Some schools are close to the range, but others have very high concentrations (above 80%) on either end of the spectrum.  The district’s spin is that most schools are at least moving in the right direction.

On one hand, it is encouraging that so many JCPS elementary schools (nearly half) already have a significant mix of students from differing socioeconomic, educational, and demographic backgrounds.  However, the difficulty in even this district – one where there is both extraordinary public support for school diversity and demographics making meaningful diversity possible – of avoiding the isolation of high-risk students known to make effective education more difficult should give pause to advocates for integration as the primary tool for educational improvement.

It is, of course, far too early to judge the success of the new JCPS plan.  At the very least, the district is thinking outside the box to provide its students and its community with diverse schools and to provide a tool to other districts interested in and capable of achieving similar diversity in a constitutional way.  Stay tuned.

Second Circuit Strikes a Blow Against Teachers' Speech Rights

I noticed that Education Week’s School Law Blog had posted about a case from the  U.S. Court of Appeals for the Second Circuit that marks yet another disturbing use of Garcetti v. Ceballos in relation to speech claims by educators (a copy of the case is also available at the site).  Previously, I wrote about a state court decision involving faculty speech and the Garcetti decision.  In Garcetti, the U.S. Supreme Court held that a public employee does not speak for purposes of the First Amendment when engaging in communications made pursuant to carrying out his or her official employment duties.

In this case, Weintraub v. Board of Education of the City of New York, a teacher alleged that administrators retaliated against him on the basis of making a union grievance.  The teacher claimed that he lodged the grievance after school officials failed to discipline a student who threw a book at him on two occasions.  The teacher, among his claims, stated that superiors retaliated against him for filing the grievance, such as giving him negative classroom evaluations.  There were other serious issues involving the teacher, including allegations of sexual misconduct and assaulting another teacher, so I’m certainly not weighing in on the particulars of this individual’s fitness to teach.

But from a First Amendment perspective, this decision represents another extension of Garcetti that makes little sense.  In his lawsuit, the teacher claimed that the school district violated his First Amendment rights by retaliating against him for the filing of the grievance.  Two judges on the panel determined, however, that the filing of the grievance was made pursuant to the teacher fulfilling his employment duties.

Pointing out that the Supreme Court and lower federal court decisions had not restricted the types of communications covered under Garcetti to “required” employment duties, the court determined that the filing of the grievance was made pursuant to the teacher’s official job duties.  According to the opinion, the teacher filed the grievance because of concern over maintaining classroom discipline, which meant it was an issue that was “part-and-parcel” of his employment duties.

Judge Guido Calabresi’s dissent in the case highlights how the majority opinion interpreted “pursuant to” much too loosely.  More generally, the way that a number of lower courts have applied Garcetti seems to validate concerns that it marked a decision that would unduly chill the speech rights of public employees, including educators. I am among those that has not voiced a favorable opinion of Garcetti, and this case indeed highlights the kinds of problems that were predicted to arise as a result of the decision.  One only hopes that the Supreme Court will sooner rather than later provide guidance that, at a minimum, reins in the meaning that lower courts may give to what kinds of communications satisfy the "pursuant to" language of Garcetti.

AAUP launches new journal focused on academic freedom

The American Association of University Professors (AAUP) has launched a new online publication, the AAUP Journal of Academic Freedom.  I spent some time perusing some of the articles in the inaugural edition.  Not surprisingly, as a journal sponsored by the AAUP, it provides scholarly articles supportive of academic freedom.  Given the often strident debates regarding academic freedom and the generally unfavorable view of faculty members held in some quarters, the new journal will not be viewed by some as making a meaningful contribution to scholarship or to public policy debates related to academic freedom.

As a professor, I admit a personal interest in academic freedom, and as a scholar who focuses on higher education issues, I also support the concept of academic freedom.  So, these views and concerns predisposed me to having some warm fuzzies for the journal.  And after looking at some of the articles, I have to say that I came away with a favorable impression.  The articles I sampled were well written and informative and reflected several disciplinary perspectives.  Even if you don’t happen to feel warm fuzzies for the AAUP or the concept of academic freedom generally, the articles are thought provoking and represent solid scholarship.  So, for those with an interest in academic freedom and faculty issues, I suggest keeping the journal in mind.  

Zakaria on Education

He really is very close to "on the same page" as me on education - I have posted earlier that I really liked his book as well. I can just tell that we think alike and approach the issues in similar ways, so it should be no surprise that I really liked his latest video in prepartion of for the State of the Union tonight on education. Enjoy:

Ethics Codes ... It's a concept, it's a law, it's a bird, it's a plane, it's ... Not that Important

Alabama doesn't know what do to with its teacher Code of Ethics. The Legislature doesn't like it, nor does the Unions. The State Board of Education created it and the Governor likes it, and thus today he vetoed a Legislative effort to block the Code of Ethics from entering regulation. 

These Ethics Codes for Educators are peculiar entities. Sometimes they are law, and sometimes they are not. Most states have a code of ethics in some form, but not all states choose to put them into regulation. If they are put in regulation, then they are law, meaning the contents are not really ethics anymore, they are mandates. 

In other fields, such as law and medicine, there is a greater distance between regulation and the ethical standards. The AMA produces the Code of Medical Ethics and the ABA produces the Model Rules of Professional Conduct. Some of this is replicated in state law, but not all of it. Of course, in education there is no AMA/ABA equivalent, so this kind of stuff gets promulgated by state entities instead. I would address business ethics, but then we all know that didn't work out so well. 

So, the question is how much does it matter legally who created the Ethics Code or where it sits? And, I think my answer is not all that much. Let me explain ...

First off, ethics codes tend to be very vague. In fact, that's the Alabama Education Association's chief criticism. But, vague language in law is frequent ... and frequently ignored. It can have negative implications, but they are usually sporadic. 

Second, read the Alabama Educator Code of Ethics - 90 percent of the things they say are wrong are already illegal anyway. So ... what's new?

Third, correspondingly, in my experience these Ethics Codes only really have teeth in extreme circumstances. As in, you lose your job anyway, and you lose your license. In situations where a regulating body is going to seriously consider revoking your license, the person has already probably screwed up their life substantially, including frequently criminal behavior. Knowing the kinds of cases that our local educator regulatory body prosecutes every year, they are usually only in unquestionably inappropriate circumstances that they take any real disciplinary action. Thus, whether the Ethics Code is in regulation or in policy or in guidance documents, it doesn't really matter all that much. 

Fourth, all of this is somewhat irrelevant anyway. These Ethics Codes are enacted as if they are Superman, come to solve all our ills. But, let's face it. A dumb teacher is a dumb teacher, whether or not there is an ethics code that tells them not to be dumb. Dumb teachers (those likely to do something highly unethical) are not going to read or worry about the Ethics Code anyway and smart teachers (those that do live their life ethically) didn't need it in the first place. Their greatest functions are ideological and CYA oriented. That Professional Standards Boards or Education Departments can SAY they have an ethics code is far more important than the likely impact on teacher behavior of handing out a pamphlet to pre-service teachers. 

So, I don't get all the hubbub over these Ethics Codes. Teachers, on the whole, are an extremely ethical group anyway (I've never heard of an educator ponzi scheme, for instance). So, I think it is a bit of a waste of political effort, especially right now in the face of Alabama's persistent mid-year budget cuts. I know we have to fight over something, but it really does seem unethical to fight over and Ethics Code, doesn't it? 

Budget Shifting ... Carefully

Here's a legal topic that is happening now that might not be getting a lot of attention - budget shifting. Particularly, schools shifting money from earmarked funds toward other priorities. There was a good example out of Ohio today where some IDEA funds were shifted toward general priorities. Ohio cleared a provision that blocked local special education funds from supporting other expenses and, thus, schools all over the state have shifted money originally earmarked for special education students toward other needs. 

This example from Ohio gets at a larger issue that's happening right now in schools were budgets are tight and administrators are getting "more creative" in moving money around. This is especially true because of the bifurcated school funding system whereby revenue enters the school in several different funding streams, each of which has restrictions on its spending. As those funds are protected differently by state legislatures, administrators are forced to move money around to compensate. For instance here in Kentucky the Legislature and Governor have done a good job protecting the SEEK fund (the general education fund), but have not protected transportation, professional development, extended-day services, etc. The kids still have to get to school, so administrators are forced to shift these funds. 

But the rub is that there are frequently pretty specific rules about how such money can be moved around and almost assuredly lots of administrators right now are violating a lot of these rules. Not only that, but as Ohio showed, entire states may also be taking actions that get them sued, if nothing else. 

So, keep an eye on it. School budgets are a black hole even for well practiced administrators, so it's hard for the general public to know what is happening. But, as information leaks out look for more lawsuits to ensue. 

New Tennessee Higher Education Bill Ties Funding to Graduation Rates. A Good Thing? Maybe . . .

The Tennessee Legislature has passed a new higher education bill with some interesting reforms.  Just as my home state of Kentucky is considering legislation that would make transfer from two- to four-year institutions easier, one part of the legislation in Tennessee aims to standardize transfer.  I found the most intriguing component of the new legislation, however, a change in funding for public colleges and universities.  Funding for institutions will now be tied, in part, to how well they do in terms of retaining and graduating students, as opposed to just the number of students enrolled. 

With this move, I think Tennessee has embarked on an approach with both promise and peril.  The promise is that the legislation might help nudge the state’s public institutions in a positive and meaningful manner to focus on issues related to student retention and graduation.  Of course the danger is that institutions’ concern with graduation rates will result in watered down academic standards in an effort to retain (appease) students.

The challenge for Tennessee public colleges and universities will be to focus on enhancing retention and graduation efforts in ways that align with sound educational practice and promote academic quality.  Given the difficult budgetary times in which we exist, however, this may not prove an easy task.  Doing things like making sure there are sufficient numbers of academic advisors for students and making improvements to student support services in general may well entail additional costs and also potentially cause friction by challenging entrenched institutional practices.  A path of lesser resistance might be for institutions to further cater to the “student as customer” concept that presents some serious challenges for higher education.  For instance, instructors may end up feeling increased pressure (especially non-tenured faculty or those working off the tenure track) to avoid failing students or to assign less challenging assignments in order to obtain favorable student evaluations.

I’m certainly not saying that such a situation will develop in Tennessee, and I am an advocate of efforts to improve the educational experiences of students, but a focus on output (graduation rates) does not automatically equate with improved educational outcomes.  It will be interesting and informative to observe how institutions in the state respond to this legislative initiative.

90 Lashes for a Cell Phone in Class + Prison - Literally

Sounds like a joke, doesn't it? 

It's not. 

And, it happened in a country we are closely allied with, Saudi Arabia. 

Why do we ... ? Oh, never mind I guess, I think we all already know the answers here.  

The upside though? One less county our students are going to have to compete with in the future. I guess they don't bother to stop and think about what happens when the oil runs out. 

h/t @stevejmoore    

"Rose at 20": Foreword

I just posted to SSRN my latest draft of the Foreword to the "Rose at 20" Special Feature issue forthcoming in the Kentucky Law Journal.  The issue, which includes three featured papers by distinguished school finance scholars Bill Thro, R. Craig Wood, and Bill Koski, will be out in Spring 2010 as Issue 4 of Volume 98 of the Journal.  Here is the abstract of the Foreword:

In this Foreword to the University of Kentucky’s “Rose at 20” Symposium, I seek to introduce the three featured articles, as well as to identify two major paradigm shifts in school finance litigation that grew out of the Kentucky Supreme Court’s decision in Rose v. Council for Better Education.

Although the Rose decision is primarily noted for the success of adequacy theory as a strategy for proving constitutional harm, less noticed doctrinal innovations in Rose lay in the court’s treatment of education rights and the remedies warranted for their violation. As to rights, the Kentucky court was the first to enforce the right to education as a positive or affirmative individual right. As to remediation, the Kentucky court ushered in the still-dominant judicial view of separation of powers as an independent limit on judicial review at the remedial stage of litigation. These two doctrinal changes distinguished Rose from the litigation that preceded it, and they remain relevant today.

You can download the latest full-text version here. 

"Cyber-bullying" Redux--The AALS Panel

I have posted in this space once before regarding the recent phenomenon of "cyber-bullying."  I have come to believe since then that tort-based law provides redress for most of what we generally term "cyber-bullying," and that much of what we use this term to describe is (and should be) outside the reach of school regulation. 

At the recently-concluded AALS conference, however, a panel of very distinguished scholars (including Lyrissa Lidsky, my torts professor from UF Law, whose name was inadvertently left off the official program) discussed the question whether students who engage in cyber-bullying, cyber-slamming (defamation), and/or cyber-stalking while in law school should be prohibited from sitting for the bar exam, due to an inherent lack of "character and fitness for the profession."  (No lawyer jokes in the comments, please--that's low-hanging fruit).  The panel also considered how, if at all, nefarious social networking conduct should be addressed, in light of First Amendment concerns. 

I found the discussion very illuminating.  Interestingly, the discussion turned very quickly from considering speech with an independent tortious or criminal character (threats, defamation, false light invasion of privacy, and stalking) to speech that does not violate a law, but is nevertheless racist, sexist, or incredibly boorish (the boorish example was one of a Florida lawyer suspended from practice for calling a presiding judge a "witch," if I remember correctly).  The former category (torts and crimes) seemed to garner agreement among the panelists that the bar should consider it as (non-dispositive) evidence of bad character and/or fitness, if it is properly and certainly established as the speech of the specific bar applicant.  I am not in favor of categorical rules that have the effect of limiting speech (even someone who shouts "fire" in a crowded theater could be making an honest mistake, after all).  Thus, I was pleased to see that none of the panelists appeared to favor automatic exclusion from the bar for any conduct that we decide to put under the nebulous label, "cyber-bullying." 

The latter category, however, garnered fewer conclusions and was left open at the end of the discussion.  Difficult questions were raised: Can a racist or sexist (as demonstrated by virulent online comments) nevertheless be a good lawyer?  Is "judgment" (defined as judging what one chooses to say publicly) part of "character and fitness"?    Can we trust character-and-fitness committees with such determinations?  Do character-and-fitness concerns trump First Amendment rights (including the right to be a racist, a sexist, or a boor)?  I do not have ready answers to these questions, but they illustrate how delicate the non-exam portion of admission to the bar can be, and how introducing a vague concept like "cyber-bullying" into the mix could prove much more difficult than it might seem. 

Guns at School - Should the Courts Get More Involved?

Kid goes hunting in the morning. Puts gun in truck. Drives truck to school. Authorities find it. Kid expelled. Lawsuit ensues. Community upset. 

This is a pattern that gets repeated several times a year, especially in rural America. The latest one getting national press, as Scott M. passes along, is just north of Sacramento in Willows, CA. Pretty much the same story with the additional twists of the student parking off campus and the NRA getting involved to represent the kid (a pretty bold political move, but one that will sit well with most of rural America). Here is the student, his mother (and Fox) making their case.

Let me start this by saying I did this when I was a kid ... on at least a few occasions. Not intentionally. Not maliciously. I just didn't think about it and even if I had, I wouldn't have known it was that wrong to do (this was before I decided I needed to do something with my life, and thus, pay attention). Hunting and guns were part of our community. I shot my first gun when I was probably around 7 or 8 and I got my own gun around 14 (an 870 Remington pump action, which has served me well over the years, by the way). Anyway, suffice to say that if our Superintendent had conducted similar drug dog searches on any given day, at least 5-10 of my fellow classmates would have been in trouble - so, he overlooked it, intentionally.

Okay, that was pre-Columbine. Pre-Paducah. Before all of that group and thus before zero-tolerance policies really took hold. It was also before drug-dogs really became a weapon, before metal-detectors were widespread, and before school-resource officers were all over the place. It has only been about 15-20 years ago, but a lot has changed in those years.

So, I'm conflicted.

The easy post for me to write here is anti-NRA and pro-expulsion for this student. Nice and tidy, one policy for the whole U.S. or at least the whole state, error on the side of caution, and let's call it a day.  On the other hand, it would be easy for me to argue that these urban-oriented policies are just another attack on rural America. To point out that kids used to leave their guns in the corner of the one-room schoolhouse. That this is very different than this. And, that kids like me who grew up with guns respected them more, and thus, I guess, wouldn't shoot people. A third easy argument is to argue for administrative discretion. That local administrators know the local needs and thus should set the local policy. If they don't, that is the whole point of school boards anyway, right?

All of these fail. What works in San Francisco doesn't necessarily work in Willows. 2010 is not 1910. And, I don't really know any serious educators that would totally trust school boards with this kind of decision.

So, I'm conflicted. But, I think rightly so because all of these arguments result in lives ruined. There are no good answers here. There are no clear lines and folks that argue there should be don't get the whole picture, in my view.

But, when there are no clear lines and no good answers, that's when our judicial system really steps up. It is these very tough issues where collective judicial action might navigate us though it in the least harmful way. So, I support the NRA lawsuit in so much as it causes us to consider these questions more deeply in each of these different contexts. To take 4-5 days and lay out the arguments and witnesses and experts. To consider it in California, in South Dakota, in Missouri, in Iowa, in Washington, in Pennsylvania, and everywhere else because 6 percent of students report carrying a weapon to school - a number not skewed by race, but a number historically higher, but dropping, for rural areas (although NCES needs to ask that question again).This kind of judicial intervention is going to cost us, of course. Judges are going to make some dumb decisions and we are going to spend a lot of tax-payer dollars that a strict zero-tolerance policy wouldn't require (although this law review makes a good case that we were spending them already anyway: 40 Tex. Tech L. Rev. 325). 

But, I think judges should be more critical of these policies. More demanding of legislatures. I support the law being more complex, because the issue is currently more complex than the law allows. We have to remember that we are still new at regulating student behavior in this way. When my grandpa went to school literally in the one room schoolhouse, guns were permitted. When my dad went to school, guns were common. When I went to school, guns were overlooked and when my brother went to school, guns were banned. We have changed a lot over the years, perhaps for better. But those changes are not clean breaks and our national clean-break, zero-tolerance policy has resulted in a lot of ridiculous outcomes.

So, while I think the NRA is probably going to lose this case (and rightly so under our current law), I support them bringing it, even if just to make a statement and to force us to consider the questions more deeply. 

Educators - Expect to be Recorded

A controversy has erupted in Mississippi over the recording of school board meetings. I've posted on this before at the behest of Wes Fryer, so I'll just refer you to that (although I should probably do an extended version for School Boards Journal or something). 

Bottom line: if the recording is not disruptive and the content of the meeting is not private, go for it and don't feel like you need to hide the camera. I don't know Mississippi law, but that is the most likely outcome in this case as well. 

This is 2010. Devices that can record video and audio are everywhere (this is my favorite) and, frankly, if you are a school board member you should expect to be recorded - even in rural Mississippi. In fact, there are a slew of school boards doing their own recording (why not save folks the trouble and help get your message out? Your students would probably love to do it for you!). 

If you are a teacher, you should expect to be recorded.

If you are a principal, you should expect to be recorded. 

If you are a professor, you should expect to be recorded. 

It's just the world we live in. Get used to it. 

Building the Technology Movement Into Law

Superb post by my CASTLE partner Scott McLeod over at Dangerously Irrelevant on:

Creating the new schooling paradigm: Educational technology policy priorities

Right now he is taking submissions for other policy/legal priorities for moving our school law into the 21st Century, as well as our schools. So, do me a favor and go over there and leave what you think should be one or a few policy priorities. We'll aggregate them and he'll post a second list soon. These policy priorities, though, will also factor into the core work of CASTLE moving forward (perhaps suggesting model legislation and whatnot) so we could use all the good ideas we could get at the moment.

Recent (and troubling) State Court Decision Involving Faculty Speech

This past month, a state court in Idaho dismissed the suit of Habib Sadid, a tenured professor at Idaho State University (ISU), who claimed that he was retaliated against for criticizing the actions of university officials.  Among his claims, Sadid argued that the university’s actions violated his First Amendment rights.  A copy of the decision can be found on the American Association of University Professors' (AAUP) website.

The case marks yet another decision in which a court has relied on Garcetti v. Ceballos, 547 U.S. 410 (2006), to hold that a professor had not engaged in speech protected by the First Amendment.  In Garcetti, the Supreme Court held that a public employee engaging in communication pursuant to carrying out his or official duties does not engage in speech for purposes of the First Amendment.  But, the Court left open the question of whether the decision applied to speech by faculty members.  Still, several courts have applied Garcetti to faculty speech with no reasoned consideration of the extent to which, if any, that the case should apply to such speech.  In Sadid’s case, for example, the court relied for persuasive authority on a federal district case, Hong v. Grant, 519 F. Supp. 2d 1158 (C.D. Cal. 2007), where the court also reflexively applied Garcetti. 

The interesting (and troubling) twist in Sadid’s case involves the court’s determination that he did not write newspapers articles critical of the university as a private citizen.  The court held that the “tone” of the letters was that of an employee, deeming it especially important that he identified himself as an ISU employee.

The case was another example of how several courts have used Garcetti in faculty speech cases with no consideration of the fact that the Supreme Court left the door open of whether the decision should even apply to faculty speech.  Even proponents who argue that First Amendment protection for academic freedom should, at most, accrue to institutions versus individual professors have not embraced the idea of applying Garcetti to faculty speech.  The case especially touched a nerve with me since I wrote a recent article on the issue of individual academic freedom under the First Amendment with a special focus on the Garcetti decision.  Feel free to check it out if you’re so inclined.  The article is:  A Confused Concern of the First Amendment: The Uncertain Status of Constitutional Protection for Individual Academic Freedom, 36 Journal of College and University Law 145.