Holiday Violation Game

Over at Dangerously Irrelevant, Scott McLeod has invited everyone to play "Spot that Holiday Violation." The point is that everyone writes in their most egregous Establishment Clause violation they found during this holiday season. The person who experienced the most egregious violation, as determined by Scott, myself and Jon Becker, wins a "yet to be determined" prize (although I hear those CASTLE coffee mugs are nice). So, head on over and play by leaving your comment on Scott's post!

A Correction and a Question - Intermediate Scrutiny

So, I posted something technically inaccurate a couple weeks back and I was made aware of it (the beauty of having more than one contributor to the blog), so I want to correct it, but in doing so it raises another interesting question, which I will ask you to respond to at the end. 

A couple weeks back I posted about Whether Favoring Male Teachers in Employment is Gender Discrimination? I wrote this: 

So, when you have a protected class at stake, such as sex, we have a different test to determine whether the discrimination is illegal. Specially we ask whether there is a compelling reason to discriminate and whether that discrimination is narrowly tailored.

That is a technically inaccurate statement because although we protect sex in this country, we do not protect it at the exact same level as race, which is protected at the level I stated. What I articulated above is called a strict scrutiny test. What I should have articulated is called an intermediate scrutiny test because for gender discrimination issues in this country we only apply intermediate scrutiny. In the legal world, although intermediate scrutiny is much closer to strict scrutiny than it is to the rational basis test, this error was substantial on my part. So, for all my legal readers out there, I apologize.

photocredit: Naked_Eyes

For all my education readers, though, I am not going to apologize. When I teach discrimination issues to principals, I don't talk about the Intermediate Scrutiny test. I know it exists and I (think I) understand the difference, but I am not sure my educators will remember and somehow treat sex-discrimination differently. In their split second decision-making, if they can remember only one test, I want it to be the strict scrutiny test. Not only is that erroring on the side of caution legally, but ethically that is probably the better way to go as well. 

On top of that, I am not even sure we should assume that it should be treated differently as a technicality. The Supreme Court in U.S. v. Virginia (the VMI female admissions case from a decade or so ago) said that to have a differentiated gender admissions policy a school must show an "exceedingly persuasive justification." How that's different from a compelling interest is unclear to me in the practicality of education. Yes, theoretically that is different, but practically in my students schools I don't see that difference and I don't want them to try and create it. If the Supreme Court can't even act with clarity on this issue, I sure as heck don't want my students trying to make that distinction in their schools. 

So, I am going to continue to not teach the intermediate scrutiny test to my students in my education classes. But, I could be wrong in doing so. I would be interested in others' opinions on this and what other people are doing in their education law classes, both in ed. schools and in law schools. For my practitioner readers, what did you learn or what would you prefer to learn? I could be convinced otherwise on this if I find that most other people are teaching it or students would rather have the Intermediate test than not (this would be a great research project or dissertation for someone, by the way).

Anytime you try and live in two different worlds, like this blog does, there are bound to be contradictions and this is apparently one of those times. Anyway, I totally stand by the post and the recommendations in it, but I could have and should have been clearer about the legal standards assigned to gender in this country.  

Why is No One Serious About Education?

Arne Duncan was announced as the nominee for education secretary today at a press conference in Chicago. Here's the video. Here are Obama's remarks.

I am not going to spend a lot of time criticizing the pick beyond what I already said about my disappointment of an Illinois pick and how this reminds me of the Rod Paige pick - and we all know how fabulously that worked out.  If you want analysis of the pick here is Eduwonk, Carl Cannon, Yglesias, BoardBuzz, ASCD, and Alexander Russo has some more links to background on Duncan (really Russo has been all over this - he did a good job, especially with this post saying we all need to slow down a little). Also, be sure to check out Eduwonkette's look at NAEP scores under Duncan with the Quick and the Ed following up. Anyway, there is plenty of analysis out there, just google it.

Here is my thing: Obama is entitled to put some of his friends in the cabinet and this was clearly one of those circumstances -- he picked his basketball buddy from Chicago. Sure he has some creds, but, being honest, he is not qualified for this position. He clearly has some political skills, but the guy has never even been a teacher.

I am not totally annoyed by this because we have come to expect it. But, let's compare this to the energy pick announced yesterday, Steven Chu ... literally a Nobel Prize winner, professor at one of America's best colleges, and director of one of our national research labs. He's written, he's researched, he's served, he's practiced - he is superbly qualified. That's a serious pick showing serious committment to energy reform. Duncan in comparison to Chu looks like ... well, a basketball player.

That leaves me with 2 questions:

1. Where are the qualified people like Chu in education?

2. Why are we not serious about producing people like Chu?

And, sorry if this post is long, but I want to address both of those.

1. It is hard to blame Obama because I am not sure there are qualified people like Chu in education. First, we separate research from practice. I struggle with this in my own department. We produce school leaders that may research. The policy department down the hall produces researchers that may practice, but there is little expectation that either live in each other's world. This Duncan guy has probably read fewer that 10 scholarly articles in his life. So, literally, there was no one like Chu out there to choose from. Duncan and Klein and Rhee and Bennett and others have some practical experience and some interdisciplinary skills (mostly lawyers and politicians), but they have never researched, are probably not well read, have little or no teaching experience, etc., etc. On the other hand, folks like Linda Darling-Hammond, who is extremely well qualified on the research and scholarship side, has little administrative experience outside higher ed. Why don't we have educational administrators that also research and publish as a matter of course?   

2. This of course leads to the second question of why we are not serious about producing people like that? Is it money? That might be part of the problem. It probably took several hundred thousand dollars to educate Chu and probably several million to equip him with labs and tools. Is it the subject? That might be part of the problem. It is a lot easier to do experimental science on a molecule than a kid. Is it infrastructure? That might be part of the problem. There were plenty of labs and colleges for Chu to work at. In education there are only a few and they rarely hire. I could go on, but its not necessary. The fact is that when it comes to energy America has made a serious committment to people. When it comes to education ... well, we're good at talking about being serious ... here's Obama:

For years, we have talked our education problems to death in Washington, but failed to act, stuck in the same tired debates that have stymied our progress and left schools and parents to fend for themselves: Democrat versus Republican; vouchers versus the status quo; more money versus more reform – all along failing to acknowledge that both sides have good ideas and good intentions.

We cannot continue on like this. It is morally unacceptable for our children – and economically untenable for America. We need a new vision for a 21st century education system – one where we aren’t just supporting existing schools, but spurring innovation; where we’re not just investing more money, but demanding more reform; where parents take responsibility for their children’s success; where we’re recruiting, retaining, and rewarding an army of new teachers; where we hold our schools, teachers and government accountable for results; and where we expect all our children not only to graduate high school, but to graduate college and get a good paying job.

Sounds good, right? So why don't we just get serious about this for once instead of picking our buddies as our leaders?

Update: Sorry, I do hate to keep harping on this, but I do feel this was a very instructive moment. First, check out Alfie Kohn in The Nation who actually makes a lot of the same points I do. Second, I am attaching a video at the end here to illustrate the difference between Arne Duncan and Steven Chu. First, you are probably not even going to find Arne Duncan in videos like this, but even if you do, compare what he is likely to say against what Chu says in this clip. Chu proposes a RADICAL idea: photosynthetic machines. He is interested in disruptive innovation. Duncan, at best, is interested in incremental innovation.  

Duncan as Education Secretary ... Disappointing

By now you have probably seen the reports. Rumors are swirling around Arne Duncan as Secretary of Education and with the Obama team, where there is smoke there is fire so I feel pretty confident we will see a presser in the next couple days announcing this. 

As I said before, Arne Duncan was the only person on the list I was absolutely against. I don't know his background (apparently he is a basketball player and has no graduate degree in education, again!) and I have certainly never met him, but after the Rod Paige and Margaret Spellings homer picks from Texas, the one criteria I would not budge on with this pick was that it not be from Illinois. With all the qualified candidates throughout the entire United States, why in the world do presidents insist on bringing in their home state players in education? I thought the Duncan pick was probably dead after the Illinois debacle of the past week, but apparently not. I also thought Obama's pick for Energy, a world renown scientist, signaled a respect for demonstrated expertise, but apparently not.   

I may have more to say on the pick over the next couple weeks as this plays out, but for now I am just sort of disgusted that the transition team picked an education chief that works only a mile away from their headquarters in Chicago. Highly disappointing.  

Site Upgrades: Contibutors and Series

Just an announcement of a couple new features on the site. First, it looks like Scott Bauries is going to be sticking around and posting some, so he has officially been promoted to a "contributor." You can see the new list of "contributors" in the far sidebar under the search box. Hopefully that list will grow some in the future, so if you have a serious commitment to education law and would like to be consistent contributor like Scott, contact me. 

Also, like I have said before, one of my goals is to do more scholarly series here at the site. This goal fits with my associations with CASTLE, NASSP and of course the University of Kentucky, who is highly concerned with my level of "scholarship." With that in mind I have created some links to what I am calling The Scholarly Series. Links to these series are in the near sidebar about 1/2 way down. For instance, Scott just finished his series on e-discovery in education, so there is a link to it there. Hopefully, this will be a good way for you to reference back to the important scholarly works that are coming out of this blog.

That's it. As always, thanks for reading ... Justin.  

Friday Snippets 12/12/08 - Funding Issues

Arizona's Supreme Court heard arguments in their funding case this week.

Miami-Dade is starting a new school funding suit.

Montana's funding suit takes a set-back.

Missouri is debating whether teachers should retain Social Security in their retirement systems.

Iowa's trying to take a lot of sugar out of their schools.

Salt Lake shows that even when merit pay is approved, it doesn't mean it will be implemented.

A Connecticut bullying case has a strange 16th Century Russian twist.

A Nevada defamation case against a school for complaining about a corporate product.

Pre-employment drug testing is pushed in Texas.

Alabama makes a big investment in videoconferenceing. Like to see that in every school as well.

Mississippi legislation that would remove school board members from under-performing schools still in the works.

Kentucky Community College faculty push back hard against the elimination of tenure proposal.

A state FOIA case against a superintendent in Texas.

Around the Blogosphere:

Scott McLeod has Mike Petrilli (whose work I appreciate more and more) on the edublogosphere.

Jim Gerl asks some provocative questions on whether the due process system is too adversarial.

Finally, Mark Walsh has a good summary of the legal issues this week and since it is a really nice Saturday outside today and my son wants to play, I think I will leave it at that. Be sure to read Scott's two great posts below and I will have more over the next few days on some more interesting issues.

Judicial "Inadequacy" in Providing Remedies for Education Finance "Inadequacy"?

I missed this when it first was filed (most likely because I was still in private practice then), but an interesting set of developments occurred during the second half of 2007 and the first half of 2008 in the Idaho school finance litigation. Those of you with interests in the area will recall that, in late 2005, the Idaho Supreme Court held the state's education system unconstitutional on adequacy grounds. (See Idaho Schools for Equal Educational Opportunity v. State.) However, like several other state courts troubled by the separation of powers issues inherent in these cases, the Idaho Court elected to abstain from ordering any remedy to the identified constitutional violation. The plaintiffs understandably became impatient with this "wait and see" approach to the remediation of the violation of their rights, and they took matters into their own hands, filing a complaint in federal court against all of the Justices of the Idaho Supreme Court. I cannot link to the documents because they are password protected, but if you have a Pacer account, you can find them in the CM/ECF system for the Idaho federal district court under case no. CIV 07-00261-S-EJL.

Initially, the plaintiffs sought a writ of mandamus, which is an ancient judicial mechanism by which a court directs an official of the government to perform his or her official duties. (The famous Supreme Court case of Marbury v. Madison came before the Court on a writ of mandamus). The problem with mandamus in this situation, though, is that a federal court may not use the procedure to force a state official to perform a duty under state law (federalism concerns prevent this), and in any event, federal district courts have no power under the Federal Rules to issue writs of mandamus (See FRCP 81(b)). So, the plaintiffs attempted to re-cast their suit as one merely for a judicial declaration that the failure to order a remedy for the identified violation of their state constitutional rights constituted a violation of their federal constitutional rights under the Due Process Clause of the 14th Amendment. They initially succeeded at re-casting their claim, but the court eventually saw through this as merely a semantic change and dismissed the claims in their entirety.

Along the way, though, the court was asked to rule on the Justices' motion for summary judgment as to the due process claims. For those unfamiliar with this procedure, it is a mechanism by which a party may obtain judgment without trial if there are "no genuine issues of disputed material fact," and the law cuts in favor of the moving party's position. The Justices' argument was essentially that no relief could be granted the plaintiffs on their claims because the Idaho Court had discretion not to order a remedy. Interestingly, the federal court did not buy this argument. Instead, the court ruled that, if the Idaho Court had indeed held that the plaintiffs' constitutional rights had been violated, yet elected not to order any remediation of such violation before closing the case, then it was conceivable that the Idaho Court's action (or inaction) constituted a violation of the plaintiffs' federal rights to due process. Again, if you are unfamiliar with the process of summary judgment, the court's denial of the Justices' motion did not mean that the plaintiffs then won the case. It just meant that the case could go forward to trial on the due process claims. As I mentioned above, the case was ultimately dismissed after the court, upon deeper examination of the plaintiffs' claims, determined that the only thing they really could be seeking was a writ of mandamus, which the court was forbidden to issue.

Nevertheless, if other federal courts (and litigants) pick up on the reasoning supporting the court's ruling on the motion for summary judgment, it has the potential to drastically alter school finance litigation. More than a third of the currently decided adequacy cases have ended with orders similar to the one in Idaho, where the court finds a constitutional violation, but elects not to order a remedy. If a group of litigants, after winning in the state courts but not receiving any remedy, chooses to sue the state court judge or justices in federal court, but is careful not to seek a writ of mandamus, there is at least a chance that they could win at least a declaratory judgment that the state court has violated their due process rights. What would be the outcome of such a ruling? Well, at the bare minimum it would be a source of great embarrassment to the state court judges, but it might also have a chilling effect on further rulings finding constitutional violations, but declining to order remedies. If such a rule of law had existed at the time (not that it actually exists now), we might have been deprived even of the seminal Rose v. Council case in Kentucky, in which the Court did almost exactly what the Idaho Court did in the ISEEO case.

I don't like much about the federal court's initial approach from a federalism and separation of powers perspective, chiefly because it would have had the effect of determining that exercising judicial restraint due to separation of powers concerns at the state level is wrong, even though doing the same thing at the federal level (such as abstaining from hearing a case that presents a political question) is clearly fine under current Supreme Court precedent. However, in a pragmatic sense, there is one thing to like about the federal court's initial approach. It puts state judges in the same position in which many of them have placed state legislatures: having an outside actor declare them to be bound by an amorphous affirmative constitutional "duty" and essentially shaming them for exercising discretion in the performance of this duty, where such discretion would otherwise have been evident from the constitutional text, as well as inherent in the judiciary's role in the three-branch system of government. (Very similar to legislative discretion in funding education). 

There's even a potential for extension: For example, assuming the Justices lost, would it have been sufficient for them to award the state plaintiffs the proverbial "peppercorn" for their troubles? If the "peppercorn" satisfies due process, then what difference is there between that and total judicial deference to the legislature as to a remedy? If the "peppercorn" is insufficient, then how much reviewing authority does a federal judge have? If the initial decision had been carried forward, would we have been talking later about whether the court's remedy was constitutionally "adequate"? 

Discovery Rules and State Education Laws

This post is the last (for now) in a series of posts addressing e-discovery and the effects that it could have on educational practices. I am posting this for somewhat intellectually selfish reasons, as the issues addressed here will be more interesting to legal academics and education policy researchers than teachers and principals. However, the idea for it came to me based on a comment to one of my earlier posts. The commenter, Joel from Wisconsin, asked me about potential strategies for navigating the often contradictory requirements of state privacy law (his state has two laws simultaneously requiring the retention and destruction of the same records after a certain period of time).

After I responded briefly to Joel's post, it occurred to me that IT personnel and school district lawyers in Wisconsin, which apparently has a law mandating the destruction of electronic records containing personally identifying student information on the first anniversary of a student's last day in the system, might be faced with an irreconcilable conflict if such records were to become relevant to ongoing litigation which lasts more than one year in federal court. The state law would require that the records be destroyed, but the federal discovery rules, including the recent e-discovery amendments, would impliedly require its retention during the litigation.

In ordinary cases of conflict between a federal civil rule and a state substantive law, this question would be answered through the application of the Rules Enabling Act (the "REA"), 28 U.S.C. § 2072, the federal statute empowering the Supreme Court to promulgate rules of practice and procedure for the federal courts. The REA, in authorizing rule-making authority for the Court, also limits that authority. Under § 2072(b), a Federal Rule of Civil Procedure ("FRCP") promulgated under the REA may not "abridge, enlarge, or modify any substantive right." If a discovery rule in the FRCP were to explicitly require the retention of personal information that state law says should be destroyed (assumably to protect the student's right to privacy), then the court would be faced with a clear federal-state conflict, and it would have to determine whether to apply the federal rule.

However, no FRCP provision explictly requires the retention of any information. Rules 26, 33, and 34 explicitly require the production of information, but they do not contain any de jure requirements for retention. These rules instead merely imply a de facto duty to save the information that might be requested or that would automatically be deemed relevant. Thus, they do not explicitly contradict a law such as Wisconsin's. Rule 37, through its provision for sanctions in the event of the failure of a party to participate in discovery, also implies that a party can be sanctioned for discarding information specifically requested or known to be relevant, but it imposes no explicit independent duty to save anything.

Rather than from the FRCP, the federal duty not to destroy information once litigation has begun comes out of common law. The term for such destruction is "spoliation of evidence." As mentioned above, if a court finds that spoliation has occurred, Rule 37 empowers it to impose sanctions on the spoliating party, including instructing the jury to presume that a fact relevant to the lost evidence has been proven. In extreme cases, the court can even enter judgment for the non-spoliating party (if the spoliator is the defendant) or dismiss the complaint with prejudice (if the spoliator is the plaintiff). Thus, the hypothetical Wisconsin school district will not want to be subject to sanctions under Rule 37 for destroying student records relevant to litigation. So, what can the district do? Does it have to follow the federal rule impliedly requiring it to violate its own state's law?

This is a question that could depend on either the validity of FRCP 37 or its scope, even though the actual duty not to spoliate comes from common law. This is because Rule 37 cannot operate to place sanctions on a party unless the party has violated some discovery duty outside Rule 37.  Under Supreme Court precedent, a FRCP is valid under the REA as long as it "arguably regulates procedure," and it does not "abridge, enlarge, or modify substantive rights." Of course, all of the rules providing requirements for requesting and producing documents, as well as the rule providing standards for sanctions in spoliation situations, at least "arguably" regulate procedure. However, to the extent that these rules are construed as requiring the retention of documents, the retention of which impacts the substantive privacy rights of state residents, do they "abridge" or at least "modify" such rights? Supreme Court authority holds that "incidental" effects do not matter, but a concurring opinion in one case would hold the REA violated if the FRCP in question would "frustrate the regulation of the primary conduct" of state residents. The question under the REA thus could be whether sanctions for spoliation under FRCP 37 "incidentally" impact or "frustrate the regulation of" state privacy rights in student records. It is not clear what the answer to thisquestion is, and the Supreme Court has not helped to answer it, as it has never struck down a procedural rule for violating the REA.

Resolving this dillemma may depend on whether the court conceives of the REA as an absolute limitation on Congress's delegation of its lawmaking powers to the Supreme Court, or whether it is instead a rule of construction, mandating that all FRCPs promulgated pursuant to the REA be interpreted and construed such that they do not have the effect of abridging, enlarging, or modifying any substantive right. The Court has at times construed FRCPs narrowly, such that they do not cause any conflict with state substantive law. In the Wisconsin hypothetical case, if the court were to approach the REA as a rule of construction, it could easily allow FRCPs 34 and 37 to operate by holding that the court cannot sanction conduct mandated by state substantive law. Of course, no one knows whether a court would do this, so (assuming that the plaintiff has pled a proper case where jurisdiction, venue, etc. are not at issue) it might be most prudent for the hypothetical district to seek a protective order from such a court immediately upon commencement of the litigation, asking the court to rule on the preservation issue at the outset.

Illinois Politics

Sort of off topic, but I am a proud Kentuckian today. By now you have heard the governor of my home state of Illinois has been arrested. This is just the latest in a long line of corruption stretching back decades. It is embarrassing. 

I have sort of alluded to it before, but I don't miss Illinois politics at all. I never had a ton of experience in it, but going to law school in Illinois and working with the department of education for a couple years was enough for me. When I moved to Indiana it was a totally different story and it is similar here in Kentucky. Here is a post I wrote earlier this year which is worth reading again. 

You are never going to get all the politics out of education, but Illinois has taken politics to a whole different level. There is so much politics in Illinois that at some point it becomes only about the politics and power, not about democracy.

Obama: Let's Modernize Our Schools

In his weekly YouTube address this week President Obama outlined his economic recovery infrastructure building plans, which included a major statement about our schools. Regular readers will know that I am a big fan of this as I have been advocating for our schools to "go green" in a coordinated manner for a long time as well as upgrade our technological infrastructure. This is just flat a good idea and it is good to see Obama helping to stimulate our economy by helping to ensure our future.

Here is the relevant section:

Third, my economic recovery plan will launch the most sweeping effort to modernize and upgrade school buildings that this country has ever seen. We will repair broken schools, make them energy-efficient, and put new computers in our classrooms. Because to help our children compete in a 21st century economy, we need to send them to 21st century schools.

As we renew our schools and highways, we’ll also renew our information superhighway. It is unacceptable that the United States ranks 15th in the world in broadband adoption. Here, in the country that invented the internet, every child should have the chance to get online, and they’ll get that chance when I’m President – because that’s how we’ll strengthen America’s competitiveness in the world.

Here is the weekly address in full:

Your Weekly Address from the President-Elect @ Yahoo! Video

Friday Snippets: 12/5/08 - Freezes Ain't Funny

The debate over Education Secretary is heating up. David Brooks says it is a fight between "reformers" and "establishment." I think that is a little too simple of way of putting it. Two comments: 1: the pick is not as important as people are making it out to be, 2: the only candidate I am against is Arne Duncan. I think we have a pretty bad precedent (2) of bringing in an education secretary from the president-elect's home state, so I don't want to try that again. 

The theme this week is universities cutting budgets. No different here. In fact, Kentucky may end tenure in community colleges.  

It means class sizes will get bigger. 

Indiana's new school funding suit was before their Supreme Court this week. 

Mississippi is still recruiting new teachers. 

A Washington state lawsuit over union fees and union spending on political issues settles. 

The DOJ is going after Texas for their treatment of disabled students. 

Paying parents to teach their own kids? Shouldn't they do that anyway? 

The New Jersey Superintendent's suit against regulations limiting their perks was thrown out this week. Look for more of this in a state near you. 

I hate stories like this. Apples and Oranges. 

Merging away HBCU's ... talk about controversial. 

Around the Blogosphere:

A good discussion at Leadertalk about getting the Ph.D. in education. My thought is why not? But, find the right program.

Mark W. has the details on the Title IX arguments before the Supreme Court. I told Mark when I saw him a couple weeks ago how jealous I am of him getting to cover these Supreme Court cases. 

Jon Becker has a provocative post about the whiteness of blogging. 

Jeff Marcus informs us of some new special ed. regulations. 

Pam Parker had a good post last week on schools marketing themselves I didn't want to let slip by. Relatedly, BoardBuzz has a shocking post on classroom advertising. 

Jannifer Marquis has a good FMLA update. 

For your Friday Fun: Funny or Die. Specifically Prop 8: The Musical.

Thank You For Paying Attention

Simply Marvelous.

Thank you Sec. Reich for paying attention to what this economic crisis is doing to our schools while we hand out Monopoly money to every Citi, Fannie and Ford that sticks their hand out.

News Organizations are Searching Facebook for Teachers

Charlotte is apparently going to be the leading district in the issue of teacher facebook postings and subsequent discipline. Now, in addition to the district search facebook pages of potential and current teachers, the local news entity, WCNC and the Charlotte Observer, are actively searching local teacher facebook pages and reporting their findings in the newspaper - which is leading to teachers being fired.

Rest assured, since the Charlotte Observer managed to generate news with this and get a fair amount of attention, local newspapers and TV affiliates across the country are already scanning through local teacher Facebook pages. Get ready for a lot more of these stories nationally.

We Need Innovative Bureaucrats

Gonna combine a couple ideas I have been toying around with in my head the last couple of days.

First, if you haven't heard already, the Drew MySpace trial concluded with a conviction. Its a mixed bag result, but the "jury did find there’s a crime based on accessing a Web site and not following its terms of service.” This woman should be punished, but there is little doubt in my mind that this is a terrible legal outcome which almost certainly must be overturned at some level. Because I think we have yet to hear the last of this case, I will save my full articulation for a later post. 

The second thought comes from Tom Friedman's new book, Hot, Flat and Crowded. Its a good book and I recommend reading it, but one idea that stood out to me was his reference to the idea of "revolutionary bureaucrats." In effect, those people that no one knows about but who nevertheless are the driving forces behind revolutionary adoption.

What occurred to me is that while revolutionary bureaucrats are certainly necessary to get the ball rolling, we need many fewer revolutionary bureaucrats than we need innovative bureaucrats.

So, let's use the MySpace case as a example. There are a lot of things that went wrong in this case and chief among them is the actual crime (yes crime - I think we can all agree on that whether or not we have a viable punishment mechanism in place). But, from a bureaucratic standpoint, what happened here is that technology and society got so far ahead of the bureaucracy that it simply could not cope and in many ways became worse than useless. The bureaucracy here is actually undermining itself because in trying to cope it is only exposing its fundamental weaknesses to the public - thus, it would be better off being useless.

So, we need to ask ourselves: why did the bureaucracy, the government, get so far behind? I think it is because we have a lack of innovative bureaucrats, not revolutionary bureaucrats. The people that put the Computer Fraud and Abuse Act in place in 1986 were revolutionary bureaucrats. At a time when fewer than 10 Senators probably understood computers, someone nonetheless had the foresight and energy to get an anti-computer fraud and hacking law through Congress. That's great. But, here's the thing about revolutionaries ... they are always after the next revolution and rarely stay around for the implementation (here is a classic example). Who's left are the ordinary bureaucrats. What we need is for a bunch of those ordinary bureaucrats to become innovative. 

We could have predicted the MySpace case. There were lots of cases before this Drew case where MySpace terms of service were violated to effectuate bad personal results on other people. We knew this was a problem. But, we didn't do anything about it because all the people in positions of influence, or bureaucrats, either didn't know, didn't understand or didn't act if they did. Thus, when one of these cases finally did grab enough headlines for the world to care, we simply didn't have a bureaucratic mechanism for dealing with it. No one was innovative enough to notice, understand and articulate a policy on the thousands of previous cases. That's not a lack of revolution, that's a lack of innovation in our government.

Now, there are certainly benefits to a solely reactionary government, so I hope you don't take what I am saying lightly. Bureaucrats are incentivized to be reactionary and not innovative for a reason ... it makes for safer, albeit slower, government. The policy structures in place rarely reward innovation and almost always reward restraint. There is simply few incentives for bureaucrats (I use that word with full knowledge that I am one) to innovate.

If we had innovative bureaucrats, however, we could become a much more adaptable government without really changing our fundamental structures. Friedman talks about the U.S. "being China for a day" because China is not hindered by all the bureaucracy that is prevalent in the U.S. That's an interesting statement and a pretty clear recognition that in times of rapid change, such as now when you have 40 year old women anonymously driving teens to commit suicide using a technology that didn't exist 15 years ago, the safety of anti-innovation, slow bureaucratic structures is less important than the need for government to adapt to new realities quickly. We need to punish Lori Drew. It would be good for society if we did. But, our anti-innovation bureaucracy simply didn't keep up, even when there were clear signals that this was a problem.

I think our government needs to consider driving innovation not just in the private sector toward green technologies, biotech, infotech and all those other techs ... but we need to start actively driving innovation in the public sector as well. Lots of revolutionaries in this era have already arrived and some have even started to gray. We are transitioning from the initial stages of revolution, when a few people make radical changes, to a more lasting stage when the rest of us slowly adapt to those societal changes. We are in a period of adaptation, more than anything, but I fear our government is not yet there.

A Sad Twist, But a Feel Good Story

Kathy Cox, the Superintendent that WAS smarter than a 5th Grader, has filed for bankruptcy because her husband's construction business collapsed leaving the family with millions in liabilities. Cox intends to keep her promise, though, to donate the winnings to schools for disabled children. Good for her even in the face of personal financial hardship.

Superintendents and other school leaders are special, special people. Perhaps on this Thanksgiving we can all take a minute and thank a school leader for being that special person that helps our children.

Liveblogging ELA - Where is Internet Speech?

The last presentation at ELA I attended was a quite interesting one. A couple of researchers from the University of Cincinnati presented on a study of school principal's perceptions toward off-campus speech. Their findings will hopefully be out in an article soon, but the general idea was that place of the creation of the speech was a significant predictor of a principal's disciplinary reaction to the speech. In effect, if a student created the speech at home, principals were less likely to regulate whereas if the speech was created at school, the school was significantly more likely to regulate. Watch for an article soon that gives much greater detail on their findings. 

But, here is the thing. The "place" of the speech's creation actually matters very little in the legal analysis. The legal analysis is pretty much wholly concerned about the effects of the speech. Tinker, in particular, set up a student speech analysis regime that is wholly concerned about the effects of speech on the schools. This is why we are concerned with whether the speech's outcome will have a material and substantial disruption on the school environment. Now, this comes with some cavets. The Bethel and Hazelwood analysis IS concerned with the creation of the speech (not lewd, vulgar or offensive and not school sponsored, respectively). This can play into the off-campus speech analysis, but not nearly as much as the Tinker issues and I highly doubt that is what is accounting for the researcher's findings. 

This "place" issue is important because of the geographical effects of the Internet. When it comes to published speech, the Internet has gotten rid of geography in a lot of ways. Internet speech is neither here nor there, it is both. This blog post, for instance, is in San Antonio's airport right now where I am writing it, but it is just as much in Lexington or Cincinnati or your school or my school or a student's home. It is in all those places as soon as the server request transfers the data through the Internet to a computer (and with RSSing, that happens a lot without someone even intentionally sending a request). Thus, the effects of the speech (what Tinker is concerned with) can also be in all those places. So, using place as a determinate factor really doesn't make sense. The "nexus" test and the "disruption" test (if those are 2 separate things) only cares about the effects - not the creation - and since those are the two most important tests for off-campus speech, the researchers findings really are instructive that principals are not understanding the fundamental analysis at play here and are likely making mistakes in disciplining student speech. 

Anyway, it was excellent research and I look forward to reading the article on it.

Friday Snippets - ELA 08 Edition

Shorter edition this week as it is midnight already and I have 8:00 sessions tomorrow.

A California court declares a statute requiring sex-offenders to live at least 2,000 feet from a school or park unconstitutional. Interesting to see how this one plays out. It could have a big impact if it stands up on appeal.

Schools don't understand open records laws? - No kidding!

Great article on pushing the drug testing barriers in the NY Times.

I'm in Texas, so might as well link to another story on their evolution fight.

USAToday runs a bullying article.

New Jersey's Supreme Court commissions a fact finding investigation on the state's new plan to fund schools. New Jersey's Supreme Court is running their school system in a lot of ways and this is just more evidence of that.

You are going to see a lot more of this coming up in higher education.

A bill would require all public school students to wear uniforms in Nevada.

Not sure I agree with this article's premise on female teacher misconduct. I am not sure there is more of it, or that we just care more these days. Interesting idea though.

This is an encouraging article: Georgia is phasing OUT their graduation exam.

That's it for tonight folks. I will catch up with the ed. law blogosphere next week. But, let me recommend Mark Walsh's write up of my presentation at ELA earlier this week in the meantime. It has been a real pleasure to meet Mark here. He is a really nice guy and it is always nice to finally put a face and personal connection with the blogging conversations.

More liveblogging on ELA tomorrow.

Liveblogging ELA - "Cyber" issues

Was just in a very concerning session on off-campus speech and cyber-speech. Actually, it scared me a good deal. Some thoughts:

1. People are scared of this "Internet thing." Really scared. Administrators in this session suggested that (a) students don't understand that there are consequences to any of their actions these days, (b) an administrator said that we should get rid of all anonymous Internet content, (3) participants continually referred to the Internet as "cyberspace" -- as in someplace other than the world they live in. Clearly, we are a long way from simply accepting the Internet's continued existence.
2. T.K. Daniel made some great points about teachers and administrators not understanding what is going on with the Internet and not understanding how it could be used positively.
3. There is general acceptance that "cyber-bullying" is different from "bullying" generally. I disagree. Folks seem to think that it is fundamentally different because students somehow can now bully with their fingertips instead of their fists. Um, haven't students always been bullying with their fingertips? What about classroom notes. What about papers taped to the back of students? ... Folks, this is not different. Yes, there are differences in form, but no difference in substance.
4. I was surprised to hear a school district attorney suggest that he would like to give more freedoms to students on this issue. His point was that in a highly regulatory environment, schools are overwhelmed. He said he spends a lot of time contacting Facebook and asking them to take down webpages. That is a waste of school resources in some ways since whatever bullying or misbehavior the site was intended to convey has necessarily already been conveyed by the time the school hears about it. I thought that was a very good point and it was refreshing to hear a board lawyer looking at this rationally instead of reactionarily. 
5. "on" campus - "off" campus ... are those the best words we can use? Those words imply a world where geography matters, i.e., something is either or here or there, but not both. With ubiquitous worldwide publishing, geography is a pretty odd way to try to continue to define the limits of school authority. We need a new term for this issue.

Liveblogging ELA - Pre-Service Teacher Education

In a role-alike session for educational law professors now and the focus of this meeting is teaching pre-service teachers about the law. I want to record a few of the points that are being made now.

1. Once you get your foot in the door with a pre-service class on education law, the students will make it permanent because the demand is very high for this.
2. More research universities are pushing to do education law at the pre-service teacher level. Indiana has already made it work. Wisconsin, Penn State, BYU (and Kentucky) among others have instituted efforts to get pre-service teacher law.
3. We have to make it relevant for students.
4. Research by David Schimmel and Matt Militello has shown that the education law field is pretty universially in support of making a push to get pre-service teacher education on legal issues.
5. Lots of organizations can work together to get the law out there and create the demand.
6. They just brought up the NASSP thing. That was sort of cool. So I talked about that.
7. In the Fall issue of ELA notes Dave Schimmel writes about how to do this.
8. We need to share more about how everyone is doing this.

There are probably more points I missed, but the overall point is that everyone thinks we should be doing this and now the discussion is about HOW to do this, not IF we should do this. I think that is an important leap forward for us.

Education Law Research in a Cyberage

I'm at the Education Law Association conference in San Antonio and I just gave a presentation on Education Law Research in a Cyberage (slides below) with Kevin Brady, an education law professor at North Carolina State.

I'll hit some of the major points I made in my presentation, although not all because I plan to publish this in an article when I get some more research.

1. The Internet is ubiquitosly used for education law research. Even the older members of the education law field have highly adopted Internet-based research.
2. Of the members of the education law field, about 1/2 primarly used fee based sources for education law research and about 1/2 primarily use free resources.
3. Of the free resources, there is not dominate resources. There was great diversity in responses concerning which free resources people used the most.
4. Web 2.0 resources are changing how legal research is conducted. Sources like PreCYdent, Altlaw, and Public.Resource.org allow for a bottom up approach to providing educational law sources rather than the top down approach of Westlaw and Lexis. (More resources are on my Find Ed. Law Info page).
5. Blogs are becoming a major resource for information on education law. Check out my blogroll on the left. 
6. There is an equity issue for people on the education side of education law. Attorneys and law professors have nearly unlimited access to Westlaw and Lexis, the main legal information providers. People in schools of education do not have such access and can't afford the hundreds of dollars per month it takes to get access.
7. There are differences in the resource of first choice for professors (textbooks), attorneys (caselaw) and practitioners (google).

Anyway, those were some of our findings. We are just beginning this journey on education law research and we plan to add qualitiative elements to our research to get more specific detail on the challenges that people in the education law field are facing when it comes to obtaining information. On thing is certain, though. The way we find and process information is rapidly changing. We could not have given the presentation we gave today five years ago and the presentation we give five years from now will look nothing like the presentation we gave today. It is a fun time to be working in this field.