The E-Discovery Amendments to the Federal Rules of Civil Procedure and School District IT (document retention systems)

This is the second installment in a series of posts examining the effects of the amendments made to the Federal Rules of Civil Procedure (the "FRCP") in 2006 on technology use in schools.  In the initial post, I provided a broad overview of the discovery process and the role of electronically stored information within it.  This post concerns the role of the IT staff of the school district or school site in e-document management.  Based on the results of additional research, this post also attempts to further explain a misconception identified in the initial post in this series.

 

The e-discovery amendments added several new requirements to the FRCP.  Several of these are directly relevant to school district IT personnel.  First, both Rule 16 (governing initial scheduling conferences with the judge) and Rule 26(f) (governing the parties' initial planning meeting prior to the Rule 16 scheduling conference) were amended in 2006 to expressly require that opposing parties discuss and create plans for the scope and form of discovery of electronically stored information right after litigation begins.  Rule 16 also now explicitly empowers the judge to resolve any conflicts in this area prior to the commencement of discovery.  Second, Rule 26(a) has been amended to require that, prior to discovery, the parties disclose to each other the nature and location of any electronically stored information that each party will use to support its claims or defenses.  These changes require that a school district's lawyers know at least four things: (1) what kinds of electronic information are stored in its systems; (2) the location of this information; (3) the content of this information (or whether the information can be searched by content); and (4) the possibility and likely cost of accessing the information.  This is where school IT people become very valuable to a school district's lawyers. 

 

To begin with, I return to a misconception that I identified in the initial post in this series.  In that post, I stated that school district personnel have mistakenly concluded that the adoption of the e-discovery amendments made it a requirement that all school districts now archive every single bit of electronic data passing through their systems.  This misconception had led many school districts to effectively prohibit the use of essentially non-archivable media, including various Web 2.0 tools like this blog.  I have recently discovered that the source(s) of this misconception and the resulting overreaction at the school district level could have been a few "articles" published by providers of electronic document management services and widely read in the IT community (though not so widely read in the legal community).  I assume that the intentions of these providers were benign, but it appears that, in their quest for new customers, they have allowed their marketing materials to imply (and in one case explicitly state) that all electronic information passing through an orgainization's server must be archived.  Of course, these claims are followed by descriptions of the great archiving and information management services available from these providers.  To clear up any misconceptions generated by these publications or any others, I repeat my statement from my initial post that the FRCP do not independently require the archiving of anything prior to litigation (or at least the reasonable expectation of it).  The FRCP are rules about procedures to be followed by parties and lawyers during litigation.   

 

Does this mean that school district IT personnel can now forget about the FRCP?  Absolutely not.  Does it mean that we can all stop archiving everything?  Not if you want to be smart and proactive.  You see, despite the fact that the FRCP do not require the archiving of every bit of electronic information that comes through your system, if your district is sued, you really must have a clearly defined process for managing your electronic information.  The amendments described above should give you some clue as to why this is so.  For example, the district's lawyers do not want to show up at the scheduling conference before the judge and have to argue that the school district never saves anything.  That argument would be implausible and would probably run counter to at least some substantive laws (such as state laws requiring the retention of student records).  Also, certain archived files may contain confidential student data or similar sensitive information, and IT personnel should be able to apprise the attorneys of the locations of these files, so they can make appropriate objections or seek protective orders to prevent making the information public.  Thus, you should be able to instruct the district's attorneys as to the nature, location, and likely content of the information that the district does store, so the attorneys can participate in their scheduling meetings and make their initial disclosures.  Knowing these facts may be made easier through the use of a private electronic document management service, but it does not follow that you have to employ one of these services to save everything electronic. 

 

Another reason to have a clearly defined electronic document management system that can be explained in clear terms to a judge is because it could provide your district with a defense to a motion for sanctions or a potential contempt citation.  The amendments to Rule 26(b) (governing the scope of discovery) and Rule 37 (providing for sanctions for failure to participate in discovery) provide the reasons.  Rule 26(b) provides that the general scope of discovery extends to any non-privileged information in the custody or control of the party from whom it is requested.  However, Rule 26(b) also limits the scope of discovery of electronic information, providing that a party need not produce such information if the party can show that it is not reasonably accessible due to undue burden or cost.  Having a clearly defined document management system aids in meeting this burden.  Of course, the opposing party can overcome this defense if it can show good cause for needing the information, but courts are more receptive to parties who truly understand their systems and can explain why certain documents are effectively irretrievable.  Similarly, Rule 37 provides a party with a defense to a motion for sanctions for failure to provide requested information if the party can show that the information has been "lost as a result of the routine, good-faith operation of an electronic information system."  Case law has applied this defense to systems set up to delete information that is of a certain age, for example.  IT people can assist the school district's attorneys by being able to (1) explain how the electronic system determines which files to automatically delete; and (2) justify the procedures (for example, by explaining the burdens that retention would place on the system's storage capabilities).  Of course, once a lawsuit is filed or is reasonably anticipated, the school district's attorneys will typically issue what is known as a "legal hold notice," which will require that even routine destruction or deletion of documents cease until further notice.  Thus, even in the absence of a motion for sanctions, IT personnel should have a good handle on what the system automatically deletes and how to stop this process if necessary.

 

The final reason to have a clearly defined document management system arises out of Rule 34 (governing the discovery of electronically stored information specifically).  Rule 34 provides that electronically stored information is discoverable.  It also provides that it must be produced (if relevant, reasonably accessible, and non-privileged) "in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable," unless the parties or the court determine otherwise.  This rule requires of IT personnel that they be familiar with the forms in which all archived materials are maintained.  Much litigation exists over the question of the form of production, and the main reason for this litigation is metadata.  For those readers with little IT background, metadata (which my colleague Dr. Bathon appropriately refers to as "breadcrumbs") consists of information "behind" a visible document, such as the author(s), versions, dates of creation, modifications, uploads, and many other potentially revealing bits of information.  For obvious reasons, producing parties always want to produce information in a sanitized format (e.g., as imaged files with no metadata), while requesting parties always want the data in "native" format (i.e., containing all metadata).  Much money has been spent on these fights.  In litigation, school district IT personnel should be able to assist the district's attorneys by explaining the nature of the metadata in the documents, and this, like all the other functions outlined in this post, requires a clear understanding of the storage mechanisms used in the district.  

 

Hopefully, this very general overview of the IT issues created by the e-discovery amendments will help.  My next post will focus more on the technologies that teachers and principals use every day and the implications that the e-discovery amendments have upon the use of these technologies.

It's Banned Books Week!

Here is the American Library Association's webpage for it. Here is their page on the most frequently challenged books and authors for 2007. Toni Morrison's books come out of the top 10, but she still remains the fourth most frequently challenged author. 

As far as the legality of this stuff goes ... it's legal to ban books if that is what the school board wants to do. The only exceptions to this are that if the school board has a procedure in place that it does not follow (see this case) or if the board is discriminatory against a particular group or viewpoint (see this case for instance) in their decisions. But, most of the time, it is perfectly legal to ban books from schools. 

(I got some kind of timing by the way; I am teaching instructional issues this week in my school law course. Hope my students are paying attention!) 

Short Selling

That is what I taught my high school students to do. The students had to take an accounting/resources class at the high school I taught in and under my Title I job it was my responsibility to help the struggling students. They spent a good deal of the course learning about stocks and financial markets and played a simulated stock market game that spanned three of the four months of the course. As part of that, we taught them hedge funds and short selling and other useless concepts in retrospect. A couple extra lessons in debt (and staying out of it) probably would have served them much better than understanding short selling. The game we should have been simulating to them was "Can You Make Your Monthly Mortgage?"

Even though we see everyone on TV trying to skirt responsibility in this mess and no one is blaming the education system (yet), we still need to reflect on the information we were providing our students. I can tell you I feel some responsibility for playing the stock market game when we could have been learning something that had real application to their lives.

Friday Snippets: 9/26/2008 - Interesting Times

We are sure living in some interesting times, no? Everyday lately we get word of news that would have consumed months of newscycles. Last night hearing that Washington Mutual failed ... I didn't even blink - this is old hat by now. What are we going to do next year when all this settles down again? 

Boy, this Chicago thing just gets more interesting all the time. Now, Rep. Meeks, the boycott leader is threatening to have 6,000 protesters outside Wrigley Field for the first MLB playoff game. 

Georgia's school funding suits take an odd new turn. The Governor has asked for an inquiry of whether districts may use taxpayer dollars to fund these lawsuits. 

Why the N.J. Supreme Court should not be administering their school funding system. 

A challenge to the Texas minute of silence law. 

An Indiana AG candidate proposes including school related (but not employed) personnel (like bus drivers) in child protection laws. 

Can't be both a teacher and on the school board at the same time in Nevada. 

Illinois loses $221,000 in lost governmental contributions for every dropout. And they have a lot of them, according to a new study.

More evidence on why Supp. Educ. Services are not working like they thought they would. 

A FOIA case for a college administrator. 

Health Insurance costs are a problem in Arkansas. 

This was odd. Vetting, anyone? 

Around the Ed. Law Blogosphere:

A new ed. law blog to report this week: Developments in Special Education Law. H. Jeffrey Marcus has been posting for a while, but I just came across him now. He seems good at providing briefs on special education cases that come down. I added him to my blogroll. If you know of other ed. law blogs I don't have in my blogroll, please let me know. 

Wrightslaw has a N.C. special education student abuse case. 

Erin Buzuvis has a good post on ending the Title IX Blame Game. 

Mitchell R. points out a good resource for folks interested in getting a law school job: Legal Scholarship Blog. Here is a link from the Legal Scholarship Blog (RSS) of Law School Based Legal Conferences in Education Law. 

Mitchell also pointed out this revealing clip of Greta can Susteren talking about law school grading. 

Connecticut Ed. Law Blog has a case on cross-examining witnesses at sch. disciplinary hearings. 

Pamela Parker has guidelines on class sizes in Texas. 

The Integration Report is back after a couple month hiatus. 

Friday Fun: Apparently, its a bad idea to lie to David Letterman - especially when he finds out in the middle of the show. I love Keith Olberman's face during this whole thing. Like I said, we live in interesting times lately.  

Google Document Link: Friday Snippets: 9/26/2008 - Interesting Times.

The Recent E-Discovery Amendments to the Federal Rules of Civil Procedure and Communicative Technologies in School Districts (Intro)

Hello to all readers of The Edjurist. I want to thank my colleague, Justin Bathon, for allowing me to share my ideas as a contributor to this forum. My first set of posts is partly inspired by an online discussion (see comments) that Justin forwarded to me. The discussion at Wes Fryer's blog in part concerned the implications that the December 2006 e-discovery amendments to the Federal Rules of Civil Procedure (FRCP) have upon technology use in the schools, particularly Web 2.0 tools such as blogs, wikis, podcasts, Wimba, social networking sites, and microblogs.

In reading this limited exchange, it occurred to me that the issues generated by the recent amendments may have caught some school district officials off guard and could have caused them to form misconceptions about the import of the changes, so I have designed this series of posts to offer both a basic primer on the most important changes made in 2006 to the FRCP, as well as some thoughts as to how these changes affect the daily work of school officials. The Honorable Lee Rosenthal has already introduced a seven-part overview of the amendments themselves in the Yale Law journal Pocket Part, and I do not seek to duplicate his efforts here. My purposes here are instead to (1) demystify the discovery process, as well as the recent changes made to it concerning the treatment of electronic information, for education practitioners; and (2) offer some thoughts as to how school leaders and teachers might approach their jobs with the amendments in mind.

The provisions of the FRCP that are the subject of this series of posts mainly focus on discovery issues. For those with little to no legal background, discovery is a term that we use to describe the various means by which opposing parties in litigation (and sometimes third parties) can be required to share information (potential evidence) with each other. The FRCP governing discovery do not explicitly regulate any activities that occur prior to the onset (or at least the imminence) of litigation. Once litigation has begun, though, the discovery rules govern, among other things, (1) the information that must automatically be shared with an adversary; (2) the information that may be requested from an adversary; (3) the information that may be withheld from an adversary; (4) the procedures for requesting and withholding information; and (5) the consequences of overreach in seeking or withholding information.

The FRCP amendments adopted in December 2006 mainly altered the existing discovery rules by introducing explicit provisions governing the treatment of “electronically stored information” throughout the litigation process. Most refer to these provisions, among others, as “the e-discovery amendments.” I will address the implications of the specific changes to each of the rules in future posts, but I want to use this introductory post to address the general discovery process and the role of electronically stored information within it.

To begin with, the discovery process does not actually commence until a complaint is filed (or at least until such time as a potential school district defendant reasonably anticipates that it will be sued for some specific thing). Does this mean that discovery is irrelevant until litigation is imminent? Absolutely not. It is a very common practice for companies and governmental entities to design many aspects of their organizations with the prospect of eventual suit and discovery in mind. For example, a district may design its paper filing systems to facilitate easy retrieval and review of relevant information. Or a school may have the practice of creating transcripts or other records of all parent-teacher-student meetings. Each of these actions, however, is a business decision. That is, the action is not compelled by law, even though the action may be advisable considering the litigious nature of our society.

Further, the discovery rules—as they relate to opposing parties in litigation—only apply to information that is in the possession or control of a party. If a school district or employee once had possession or control of certain information, but the information either no longer exists or is now in the possession or control of someone else, then the district or employee cannot be required to produce the information to an adversary in litigation and cannot be punished for the failure to produce it, with one very important exception. If the district or employee no longer possesses the information because the information has been negligently or intentionally destroyed as a direct response to the fact or prospect of litigation, then sanctions can result.

Finally, until recently, electronically stored information has always been treated similarly to physical documents in discovery. That is, a request for, say, emails on a specific topic or authored by a specific individual has always been reviewed and evaluated as though it were a request for physical paper memos or letters. However, as the legal community came to understand the nature of electronically stored information and to use it more frequently in litigation, it became clear that the existing rules were inadequate in dealing with such information. Recognizing this problem, the e-discovery amendments introduced some specific procedures and safeguards relating to the treatment of electronic information. However, the fact remains that electronic information consists essentially of "documents and things," just not in a physical format.

With these concepts in mind, it would be best to first explain what the e-discovery amendments did not do. As I mentioned above, the e-discovery amendments for the first time introduced into the FRCP explicit provisions regulating the disclosure and production of electronically stored information. Since then, a misconception has developed among some public education practitioners that institutions using such information must therefore now archive all electronic information in case it is later needed in discovery, despite their prior practices and despite the lack of any anticipated litigation concerning the information in question. No such independent duty was created by any of the e-discovery amendments adopted in 2006, and no such duty exists anywhere else in the FRCP (although state education laws or administrative codes may require otherwise). As I will explain further in a future post, under the FRCP, an institution may be required to halt the routine destruction of electronically stored information once litigation has begun, but outside that limited circumstance, the e-discovery amendments do not require the archiving of any electronic information not previously stored.

As to the use of Web 2.0 technologies in education, then, it is unlikely that the e-discovery amendments will reach much of this information because, if it is stored at all, it is usually stored by a third party, such as a blog hosting site (and is therefore in that party’s possession and control, rather than the district’s). As to the use of other electronic communicative technologies, such as email, the amendments clearly apply, and the remaining posts in this series will address the specific changes that were made to the FRCP and how they impact the daily work of education practitioners and leaders who use these technologies.

Heard Enough From Me?

I am introducing a new feature here today: Edjurist Contributors. The contributors will be multi-post authors, thus, they are more than just guest-bloggers and deserve a term appropriate to their role. The contributors bring additional specialized knowledge to the blog and its audience, as I think you will quickly realize from our first contributor who I describe below. As this blog has matured over time, it has begun to fill a scholarly niche and has moved beyond me just posting random ed. law news stories and has become more a place for learning and discussion. Rest assured I will continue to post news when I come across it (or it is sent to me), but we are going to try to do at least one mid-week scholarly post per week that is geared toward professional development and discussion. I think that fits well with our new association with CASTLE and the recent broadening of the Edjurist site over the past few months.

So, today we are introducing our first Contributor: Scott Bauries. Scott currently is an Assistant Professor at the University of Kentucky College of Law and I am glad to have him as a colleague at UK. Soon enough, we will be calling him Dr. Scott Bauries as he is close to finishing his Ph.D. - which, like me, will be his second doctorate after his Juris Doctorate. His degrees are both from the University of Florida. Scott has been a federal law clerk for the Eleventh Circuit. Scott also worked for McGuireWoods, a very prestigious national law firm. But before Scott engaged in his legal career, he was a high school English teacher in Florida. Among his many specialties are school finance and civil procedure. In his first series of posts, he is going to address the e-document discovery requirements of the Federal Rules of Civil Procedure that seem to have caused some confusion about what electronic communication schools need to be permanently storing for future litigation, especially in light of new Web 2.0 activities. Sounds fun, eh? So, please join me in welcoming Scott by reading and commenting on his posts in this series.

Students, Speech & Politics, 2008 Edition

Well, its official, another political season is upon us and with it comes another round of student speech cases. Here is the first one I have seen this season. An 11 year old in Aurora, Colorado wore a shirt that said "Obama is a terrorist's best friend." Here is a picture and here is a video of the student defending himself. The student is claiming the school violated his First Amendment rights when they told him to remove it. 

So, inflammatory? Disruptive? Seventy-nine percent of the 20,500 votes in the news story's poll of the issue thought it was not appropriate for the school to punish the student. Anyway, I guess we will find out. The father has promised to file a lawsuit (but I like the school's chances).  

h/t Scott McLeod

Update: Eugene Volokh disagrees with me on liking the school's chances. 

Perhaps they will decide this time?

BoardBuzz has a good post on the potential case out of Oregon that may decide the Tom F. issue ... if the Supreme Court agrees to hear it. As BoardBuzz notes, that will depend on Justice Kennedy, who, at the last minute, recused himself in the Tom F. case leading to a one page per curium decision. The Court split on the issue of private school reimbursement of special education services without public school knowledge 4-4, so the lower court decision was affirmed by rule. Marcia Coyle had a nice summary of the case on the Newshour.

BoardBuzz applauds the district for sticking with the case all the way to the Supreme Court to try to provide resolution on this issue and I couldn't agree more. I have not read this specific case yet, so I won't give my take on it, but as a general principle I do think public schools need to be involved in placement decisions, even when public schools are being uncooperative or don't offer appropriate services. For better or worse, the public school is the guardian of the public dollars that will be used to fund private placements, so they need to be involved in those decisions. Rest assured, if the Supreme Court agrees to hear it, I will provide a more detailed take as the case approaches.

Potential Employers Part of Your Social Network

Careerbuilder.com did a survey of hiring managers and found that 22% check a potential employee's social networking sites prior to hiring that person. That is double the amount that responded they checked those sites just two years ago. 

Although my guess (it would be interesting to do a study) is that a smaller percentage of schools are checking those pages prior to hiring teachers, assuredly an increasing percentage are. I would fully recommend that employers do find out all the public information about potential employees available online prior to hiring them. Of potential new teachers on the market these days, I would guess that somewhere between 60 and 80 percent of new pre-service teachers have social networking sites just from informal surveys I did of my pre-service teachers at Indiana University. So, there is a wealth of information available there that potential employees have chosen to make public. 

Now, if you are a new teacher on the job market, I would just get rid of it for the time being. I know there are private options and you can clean up your site and make it respectable, but there is just too much unprofessional stuff on those pages to make me feel comfortable recommending you keep it. One of the biggest issues are other people leaving messages for you that are seen on your page. While you can most certainly control the content you put on your site, it is much more difficult to control the content others post to your site, such as their pictures which show up as "friends." For instance, on my wife's Facebook page, people frequently "hug" her or "poke" her and other silliness. A good friend of mine is a pastor, so I thought if anyone should have a clean Facebook page, it would be him. Sure enough, some of his "friends" were holding beer bottles and posing in not so flattering positions. That is not what you want potential employers seeing because the people making those hiring decisions are not going to be familiar with the norms of the social networking world and are going to see these as oddities and reasons not to hire you. I hate recommending that, but that is how it is for the time being. Feel free to disagree in the comments.

Either way, in the courtship that occurs between potential employers and employees, social networking sites are increasingly part of the scene so both sides need to figure out how to use them to their advantage.

Friday Snippets: 09/19/08 - In the market for land?

A forgotten element in this financial crisis: teacher's pensions. 

Utah's turning its attention from vouchers to merit pay?

Big Ten network is now featuring professors on politics. (Suddenly I like conference networks a whole lot more ... bring on the SEC Network!)

Illegal immigrant in-state tuition lawsuit could spread beyond California ... Kansas, your next. 

Election issues for a Prop. 13 type proposal in Nevada. 

Onward in the S.D. funding suit (the testimony in this case is pretty extensive).

When charter school leadership goes bad ...

The Florida Supreme Court slaps some hands in Florida over the voucher ballot mess. 

Slashing special olympics? Gutsy.

Meeks, the leader of the Chicago boycott, gets his meeting with the Governor. 

Getting rid of abstinence education money ... in Kentucky? 

Wanna check inspection information about your kid's bus online? You can in NJ. 

Now that's ironic. 

Around the Ed. Law Blogosphere:

I'm envious of Jim Gerl. So, Jim ... why no robe? Might as well go full blast! Come to think of it, maybe hearing officers would get more respect if they wore a robe? Jim also has part II  in his series on special ed. eligibility. 

Mark W. has a kid being disciplined for a fake MySpace page. Rightfully so, I think. Anyway, a good off-campus case. Also, OCR weighs in  on race-neutral admission policies. 

Howard F. has a N.C. District looking to add creationism to the curriculum. So, are we done with Intelligent Design? 

Should students spy on their teachers with camera's ... Wrightslaw takes it on. 

Patrick Fanelli has a good overview  of the Penn. homeschooling case. 

Michelle Laubin has ED giving some advice on FERPA. 

Campaign K-12 finds that Palin thinks she is a product of Title IX. 

For your Friday Fun: 

With the market crashing, maybe it is a good time to buy land? It's cheap right now. Hey, I can dream, right? Me and Delmar:  

I'm gonna visit those foreclosing son-of-a-guns at the Indianola Savings & Loan, slap that money on the barrelhead and buy back the family farm. You ain't no kind of man if you ain't got land.

Google Document Link: Friday Snippets: 09/19/08 - In the market for land?

A Good Legal Resource for Practitioners

I wanted  to point you to what I consider to be one of the better resources in education law for educators as a new edition is just out. The Principal's Legal Handbook addresses most of the big issues in education law and gives a very good overview of the topic as related to schools, which you can't really get from wikipedia or the Internet generally yet. I would say on a scale of 1-10 with 10 being super deep/scholarly and 1 being surface level only, the book is about a 4. In other words, it is deep enough to give you a good background in the issues, but not deep enough to put you to sleep. The price is a little higher this time so it may be not worth it for some practitioners, but maybe it is something you can have your local libraries purchase for you. Here is the press release which gives a better overview of it. 

Yes, yes, full disclosure ... I did write a chapter in it (Collective Bargaining), but I don't get any royalties or anything. I am telling you about it because I really do consider it to be a good resource for practitioners and I do get asked occassionally what I recommend on that front.  

Georgia School Funding Suit Dropped

Joshua Mayes sends word that the 50 district wide rural school funding lawsuit in Georgia has been halted, at least temporarily. The districts did not like the new judge that was assigned to the case (the new judge was a former chair of the local Republican party). 

My question is why drop it at this point? The case is already 4 years old and these school funding suits are always decided on appeal and usually at the state Supreme Court anyway. While I know it looks bad to lose at the trial court level, the trial court judge is not the one you need to convince in the end. Just seems like an awful waste of 4 years worth of effort to start over in a new venue. I get the reasons, but not sure that outweighs the cost of starting over. 

More on Why Garcetti was Wrong for Schools

I was asked in the comments of my previous post to explain in more detail why I think Garcetti is a bad ruling for schools. Because this is important (it affects what all teachers are allowed and not allowed to say in and out of schools) I want to make sure everyone sees my response. 

First, a brief overview of the teacher expression rights and how Garcetti changed that is in the picture below (this is somewhat based on the chart on page 310 of the McCarthy text - which I participated in conversations surrounding its creation post-Garcetti).

As you can see, Garcetti inserts a new test prior to the existing legal framework concerning whether the speech is made pursuant to official job duties. Of course, a lot of the previously protected speech related to official job duties, so lots of expression that was protected prior to 2006 is not protected today and that determination is largely at the hands of the administrator becasue school board and courts typically show some administrative deference to school officials. 

So, that's what it did, now let's look at why it was wrong.

The fundamental question here is who is the employer? The school board, the state, or the public, generally? Although legally the school board might be the right technical answer, the state or the public is closer to the more correct practical answer and also closer to the more correct democractic answer. The Supreme Court in Pickering understood this. The Supreme Court in Garcetti did not.

The owner or shareholders of a company is the company. Nothing exists beyond their interests and if employees violate those interests, they are fired - no questions asked. That is fine and dandy, but it is not the same for schools. The superintendent, principal or school board are just substitutes for the larger state or public interest, who actually own the schools. That is the very reason why Pickering created the "public interest" part of the balancing test in the first place. That language is not by chance. The public was the central interest (the owner) and expression that affected the public was protected because a democracy depends both on positive and negative expression to make it healthy and growing. The public, then, through traditional legal frameworks, could weed out the bad and keep the good expression. (Think of a teacher criticizing the special ed. policies of a school. Under Garcetti she could be fired. Under Pickering she could not be and she would be allowed to press her case to a vote at the school board, for example. That school board vote is democracy dealing with criticism. It is healthy. It is good. But, under Garcetti, it is now largely absent when it is teacher initiated).

Because teachers are our front lines, their perspectives are some of the best to have. The state and public are frequently benefited when teachers express their opinions, even if they are counter to what the administration feels comfortable with. Clearly, if this "under God" banner were to be put to a vote, even in So. Cal., the voters would probably want this teacher to keep his banners which really are not doing much harm, especially in light of the understanding that other classrooms in the school had Tibeten prayers or whatnot. Thus, this principal is probably acting counter to the larger public interest and the larger public interest is served when the teacher expresses himself. While we may not think of this as whistle-blowing, it sort of is on a small scale and democracy depends on whistle-blowers for its survival and adaptation. Now, sometimes teachers are going to go against the public interest in their statements, but (1) that is a risk I am willing to live with to provide the check on school boards and administrators and (2) pre-Garcetti expression rulings and traditional firing tools did a fairly decent job of regulating this behavior. It is not like before Garcetti we had teachers out proselytizing anarchy all over the country.

So,  in my mind at least, at its core what Garcetti did was change the ownership decisionmakers of schools from the public to the school board/administration. That in an of itself is harmful to schools.

Now, on top of that, schools ARE different. Schools are built upon a long history of education by teachers whereby they are granted additional rights to teach and say what they think, which is why the protections of the tenure system were created and installed in the first place.  That very diversity in viewpoints is what is valuable. When looking at a pile of teacher applications, the administrator and/or board is going to favor the ones with unique aspects because they want something new and different to offer their students. I don't see why you would then want to eliminate all that once they sign on the bottom line and suddenly stop them from using their uniqueness to improve the school. 

Next, I think this has actually created more litigation, although I don't have stats on that (would be a good research project, actually). I am sure in the minds of the Garcetti majority justices, moving the decisionmaking from the public (ultimately judges & votes and whatnot)  to administrators would create fewer court cases as it seems much more efficient. But I would be willing to bet that in fact, it has created more because administrators are not trained to speak for the public in this way and frequently make mistakes. With this new rule under Garcetti, there is a much higher amount of regulation meaning more teachers can be fired for more statements (at least potentially - I don't have stats). This creates a much bigger pool from which cases can emerge. Under the old Pickering system while the initial decision maker (perhaps the judge or a school board vote) may be at a more distant location from the speech itself, there was a much higher level of acceptance on the part of administrators and much less potential regulation from which cases may emerge - i.e. the potential pool of affected speech was much smaller. Anyway, that is my sense, but I need stats to say that with authority.

Finally, the Garcetti ruling is going to have, if it hasn't already, a chilling effect on new teachers who will be vastly less likely to become teachers if teaching becomes a profession that devalues teacher uniqueness and perspective and values a business/factory model of instruction. Having taught undergrads for multiple years, we get a lot of teachers BECAUSE they don't want to live in the business world. They want to maintain their unique perspectives on the world and be able to convey those perspectives to future citizens (Lord knows it is not for the money). Those undergrads I taught, their mouths dropped to the floor when I told them about this ruling and I could literally see them changing their perspective on their chosen careers in front of my eyes. That is not an exaggeration, either. This ruling really affected those kids in a highly negative way and I know if you ask other pre-service teacher professors, you would hear the same story.

Anyway, there you have it. It might not be the best attack on Garcetti, but I do think it gets at the essential issues of why Garcetti is wrong for schools.

Johnson v. Poway Shows Why Garcetti Doesn't Work for Schools

Of all the teacher expression cases I have read so far, this is one of the best examples of why the   Garcetti  doctrine  doesn't work for schools. Let me just start with this: (1) I personally think the teacher should be allowed to keep the banners, but (2) under the existing legal framework it is hard to see how this case was decided correctly. 

I am not going to go into the details of the case ( Mark Walsh has them ), but the basic facts are that a teacher had those patriotic sayings that include the word God in them (God bless America, In God we Trust, etc. ...  Picture ) on several banners in his classroom. The school principal asked him to take them down and the teacher refused. Now, you should know there were other teachers in the school with sayings on banners that could also be construed as religious so there was some practice of allowing teachers freedom to display personal messages on the walls of their classroom.

The judge in the case stressed that the teacher has a free expression right in the classroom and that the banners were not hung in his official capacity as a school employee. Really? .... I got to disagree. 

The judge starts by citing   Tinker   so that should clue us in that he is not going to buy into this  Garcetti  stuff. The judge then went on to recite the entire teacher expression Supreme Court history pre- Garcetti  and then said, "Garcetti by its own terms does not extend to the public school setting" and basically just threw  Garcetti  and all the case law on teacher expression published subsequently out the window. The problem is that  Garcetti  does exist and it has been pretty unanimously interpreted to apply to schools, so it is pretty hard to justify the judge's actions in not considering that case at all. 

Had  Garcetti  been considered, which I am sure it will be at the appellate level when this case is overturned, it is hard to see how the teacher wins. If the basic principle is that the school should have control over its official messages as articulated by teachers, it is hard to see how banners are not construed as within the scope of employment and related to the school's message. Within the  Garcetti  era, this is a pretty cut and dry case in favor of the school. 

But, this case is an excellent example of just how ridiculous the  Garcetti  doctrine can be when applied to schools. The very reason that we value teachers is for their uniqueness and their own personal thoughts that they bring to the classroom, yet this case is severely curtailing what teachers are allowed to say. Public education is not a business and teachers are not at-will employees. When teachers show their own personality and even when they criticize a school, that can make the school stronger. The judge in this case felt that tension and probably felt that  Garcetti  is bad for schools, but that still doesn't excuse his actions in disregarding what is pretty clearly binding precedent.

Keep an eye on this one. The higher this case gets, the better, because there is no way that conservative members of Supreme Court are going to take away those banners so they will be forced to clarify their stance in  Garcetti . Here is hoping the 9th Circuit affirms this case and the Supreme Court takes it.  

Friday Snippets: 9/12/08 - The Palin Chronicles

Here is a story you didn't see on the front page, but it should have been.

It is hard not to feel bad for California's schools. Legislators won't reach a budget, plus another education secretary resigns this week. There seems to be a real lack of leadership at the state level ... ahem, governator?

The Paducah shooter is asking for a new sentence.

Testimony in the S.D. School Finance suit continues. Montana's school funding suit goes back to court.

In Arkansas, a law prohibiting sex between teachers and students is upheld, even if the student is over 18.

The Chicago $$ reward system.

The judge in the NJ school administrator pay and pension lawsuit is hoping for a settlement.

No advertising on public school buses in S.C. - hadn't heard of that before.

Rumblings under the surface in the Utah voucher epic.

Ken Starr just can't seem to stay away from education. (Couldn't he prosecute a President or something ... maybe one that lied to the American public?)

Student loan companies get an ethics code. 

A Pennsylvania property tax constitutional challenge case is heard.

This is interesting ... if I ever find myself on death row ... no way am I going to burn.

A group in Indiana suggests free community college. 

And, a group of Palin inspired stories:

    Paying for praying for pipelines in Alaska.

    Sex Ed. ... (1) ... (2) ...

    If you want to talk more about Palin or any education aspects of the election, feel free to do so in the forum.

Around the Blogosphere:

Mark Walsh has this interesting panel discussion. I am going to try to make it, but I have a different meeting scheduled against it at the moment.

Mark also has another black armbands case.

Erin B. has an update on the Title IX case before the Supreme Court this term. This is going to be a very important case, so keep an eye on this one and I will have more on it as it gets closer.

Howard F. has another Good News Club case, this one out of Minnesota.

Jim Gerl is getting impatient with our Candidate Request and starting to make quips ... "Is pig lipstick more important than special education"

Dan Meyer is upset with a recent statement by the unions ... and sets the blogosphere abuzz.


For your Friday Fun:

BoardBuzz pointed us to this latest astounding presentation by Michael Wesch. The Superstar Anthropology Professor from K-State on the Anthropology of YouTube.


Google Document Link:Friday Snippets: 9/12/08    

Masters of PR

Front page of MSNBC tonight and a big story on NBC nightly news ...

"We may have great teachers, but unless we have better leadership we are not going to get the job done." 

I am not going to question the merits or motives of the Broad Foundation or Eli Broad. I am sure they are doing what they think is best and I respect that (although it is hard to understand how teachers are great, but when those same teachers become leaders they somehow become inadequate ... I guess teachers are not meant to be leaders? Not sure I follow the logic there).

But, Eli Broad, and similar education interests, are masters of PR. When is the last time you saw a MSNBC lead story on something positive in education like this?  Of all the things we might learn from business ... PR has got to be at the top of the list.

Finding Free Educational Law Information

It has always bothered me that we train teachers and administrators in our school law classes to use tools they won't have access to when they leave our programs. We are better off providing them some knowledge of free legal resources instead, even if those resources are not as stellar as Lexis or Westlaw. On top of that, the vast majority of the educational law consuming public also does not have access to these pay-per-use databases.

So, I put together a 5 min. free educational law research instructional video that I hope you will find helpful. Feel free to use this in your educational law courses or to recommend this video or the techniques in it to your educational law instructors. I think even experienced researchers will find some new tools in this video.

Sex Ed. In Mexico City

The U.S. is not the only one having trouble with this issue. Here is a report on the latest book offered to 13-18 year olds in Mexico City. Mexico is making a push toward greater sex education to reduce the transmission of HIV. Here is a Topeka, Kansas (?) story on the issue and a CNN video.

Friday Snippets - 9/05/08: Is this election over yet?

Great NPR spot this week on sexy student clothing ... and what to do about it (audio).

Well, my pleading with the campaign posters at Eduwonk has gone unanswered ... again. This time by the Obama Campaign. There must be some kind of secret truce or something between the parties that they will not address special education under any circumstances.

California administrator associations are challenging the state's 8th grade algebra requirement.

The Prichard Committee here in town thinks Kentucky should be a top 20 education state by 2020 (we have a lot of top 20 goals around here).

The voucher question is back OFF the ballot in Florida.

The Chicago School Boycott has even conservative sources recognizing the funding disparities. NPR took note as well.

The Palin choice has reignited sex-ed debates in North Carolina.

New York City adopts an anti-bullying policy based on biases, sexual orientation included.

The ACLU is taking a stand against schools asking about immigration status.

The South Dakota school funding lawsuit starts.

More on bible classes.


Around the Blogosphere

Erin Buzuvis makes a good point about Title IX and football.

Mitchell R. has a 10th Circuit ruling that FAPE does not necessitate self sufficiency outside of school.

Jim Gerl has IEP Implementation part III.

Texas Teacher Law has a Texas teacher certification Q and A.


For your Friday Fun: Its Time for Some Campaigning -- In honor of the conventions finishing up. h/t Matthew Reed

Google document link: Friday Snippets - 9/05/08: Is this election over yet?

Stop It

"Education is the Civil Rights Issue of Our Century" - Sen. McCain in his Acceptance Speech

Sound familiar? 

I wish everyone would stop using that phrase. It is a powerful statement, one I and many others have devoted our lives to, and I really don't like it when it is spoken so flippantly for political gain.