The information on this site does not constitute legal advice and is for educational purposes only. If you have a dispute or legal problem, please consult an attorney licensed to practice law in your state. Additionally, the information and views presented on this blog are solely the responsibility of Justin Bathon personally, or the other contributors, personally, and do not represent the views of the University of Kentucky or the institutional employer of any of the contributing editors.
Information Age Press has a new publication opportunity for peer-reviewed chapters in a book to be titled "Law & Educational Inequality: Removing Barries to Educational Opportunities." The effort is lead by our friends Susan Bon, Kevin Brady, Karen Miksch & Jeffery Sun. The deadline for chapters is August 15 and publication is expected early next year. More information about the opportunity can be found in this call for papers.
Well, I have already written a few pages as a result of this story ... so wanted to pass it along (video is not embedding well, so click link to see the story).
Thoughts?
Just to kick it off ... I'm okay with the regulation in this case. I'll say more after people lambast me for that position.
Whatever you think about this case, it is a wonderful teaching tool and I hope some of you use this scenario in your classes.
H/T to @jonbecker for bringing it to my attention.
Bruce Baker, a professor at Rutgers and one of the best educational statisticians in the country, wrote a fascinating post today about potential legal issues arising from the movement to base teacher evaluations on gains on student assessments. This post is based on that one, so please go read it first if you plan to continue ...
Being a fellow blogger in the CASTLE blogging network, he asked for my feedback, so I wrote this in reply:
Bruce,
You are exactly on point. Both are legitimate legal problems, with the disparate impact being more of the slam dunk in my opinion. The disparate impact numbers would be off the charts and states would have a very difficult time establishing that it is a neutral policy. You start tying that in with school finance stats and other characteristics like age of school buildings and the picture is going to get very dark, very fast (no pun intended). This would have to be a disparate impact case, though, not a disparate treatment case (http://bit.ly/GpQJp) and since it is disparate impact, a class would likely be formed -- i.e. someone would need to invest money on the front end of this case to organize it - thus, the NAACP or some kind of organization like that would probably get involved.
The Due Process argument would be a harder (and much less profile) case, but it could be brought individually ... so we might start seeing a whole lot more of these. Your identified problems in the statistics I think are great, but you are one of the best statistical minds in the education field. Your average joe-blow lawyer would have a really tough time making that case. And, as long as these cases stayed at the district court level, that case would have to be made over and over and over again by lawyers in each distinct community within each distinct state. If those cases rose to the level of the Circuit courts or the Supreme Court, that would save lawyers some work, but it would still be a costly case to put together and perhaps not worth it to the teachers. Anyway, I think you are right on with the legal analysis, but I think a lot of things in the US don't make statistical sense, but the legal system is just not competent enough to always tease that out.
Another legal problem this would create is that if teacher evals were 50 or 51 percent based on test score improvements ... it would make it even more difficult legally to get rid of bad teachers whose student test scores happened to go up. You can put a bad teacher in front of an AP class, and those kids are still going to excel on the test. If that bad teacher has a bad personality, treats parents badly, or any other negative qualitative component for which she would otherwise be dismissed or non-renewed, the test score based evaluation just gave that teacher a silver bullet in court. Probably like your law person there at Rutgers, I teach my principals to not give a reason to pre-tenure teachers when RIFing, because if you give a reason, then you have to defend it in court. These polices not only give a reason, but they give a reason that is largely outside of the principal's control. Even if it winds up that courts still think that 40% negative qualitative evaluation is enough to still RIF or dismiss a teacher, the number of lawsuits is likely to go up dramatically.
Generally, all this is what happens when you start forcing statistics in the legal system - which is not built for that at all. The legal system is a very qualitatively oriented system, making decisions mostly based on evidence obtained through interviews and the like. The jury, even, is a qualitative system that collectively makes a decision based on all the evidence presented. Statistics throw a wrench in all that because people react differently to numbers. They think numbers don't lie (although, of course, we know that they can and do). That's why generally, I don't love policies that seek to make decisions based solely on numbers - these kinds of things are the result.
Justin Bathonon Wednesday, October 14, 2009 at 9:10PM
Mark Walsh, doing his usual outstanding job, had a great post today on the Supreme Court oral argument in a case involving enhanced attorney's fees. Mark does such a great job with the facts and the Justice's positions at oral argument, I won't repeat them here. The case is Perdue v. Kenny and, broadly, civil rights lawyers were awarded an extra 4 million in "enhanced fees" (on top of the 6 million in typically permissible fees) for doing such an outstanding job on a foster system case against the Georgia Department of Human Resources. And, I'll just tell you now I don't like that award either and judging from Mark's reporting, I sort of expect it to be struck down. Fine.
What does concern me, though, is NSBA'samicus brief supporting the state of Georgia. In short, I think it was a little distasteful on their part. They make three principal arguments: (1) enhanced fees hurt students by taking money away, (2) enhanced fees reduce the likelihood of settlements, and (3) enhanced fees will discourage voluntary changes on the part of schools. None of their arguments are that bad, but neither are their arguments that good. I can feel, a little, NSBA stretching to make their case in the brief (especially the quasi-complaining about tight budgets). In fact, I don't think the arguments were good enough for NSBA to get involved in this.
Civil rights are a hot political issue and it is one you don't want to be on the other side of unless there is a really good reason. At least in my opinion, there wasn't one in this case. For instance, next week at ELA I am helping to coordinate a remembrance of the Rose v. Council for Better Education school finance case out of Kentucky where lawyers for school districts substantially advanced civil rights for students in Kentucky. In that case, one could make a good argument that the lawyers for the school board should have received "enhanced fees" for the educational benefit they brought to poor, rural Kentucky children. So, NSBA's members have been on the other side of this equation in the past for one.
But, generally, on occassion I question how far NSBA's attorneys are willing to go. And, this is one of those occassions. Don't get me wrong, I love the work that NSBA does and it frequently directly benefits me, and they should absolutely be outstanding advocates for their members. But, sometimes discretion is the better part of valor and it is good to not be seen as openly trying to diminish student and civil rights. Even though I agree with them that enhanced fees are probably not a good idea, making such a public statement in that forum I think was a little distasteful.
Jon Becker, the law/tech. prof. at Virginia Commonwealth, is guestblogging this week at Change.org's education blog, normally run by Clay Burell. The subject for the week is segregation issues, and you can see his first, outstanding, post here. Jon plans for some "courageous conversations" this week, so go check it out.
"a writing prompt for a boy may be what place in the world he would most like to go hunting or drive on a race track where the girls may write about their dream wedding dress or their ideal birthday party."
Thankfully, the district has agreed to end this practice. Unfortunately, there is still a lawsuit pending on the same issue in Kentucky. But, I do sort of hope that one of these cases makes it to at least the appellate level so we can reinforce the notion that segregated schooling is inherently unequal.
I planned to pen some long articulate criticism of Malcolm Gladwell's Outliers, but I'll leave that to my good friend Jon Becker, since we seem to be pretty much on the same page here.
My bottom line, as I tweeted, is that this book is a mile wide and an inch deep and, as such, is really dangerous. This book should be treated more like fiction than nonfiction, in that it should not be the basis of any policy decisions.
Rather than examine his methods, as Jon has done, I'll just examine his conclusions.
First, keep in mind that Gladwell is out to sell books, and that's fine. He is good at it and that generates speaking fees, and I am sure he makes a good living. He is, in effect, Tom Friedman in a different form. A good storyteller telling a story that we are primed to hear.
But, that's the dangerous part ... that we are primed to hear this story. Fundamentally what Gladwell is saying is that cultural differences and opportunities are significant and it impacts people's ability to achieve success. If you stopped right there, that idea alone is extremely dangerous. One group, Chinese students with a heritage in rice fields, are culturally more prepared (careful to not say better) to achieve at higher levels on math. Let's just assume for a minute that this theory is correct. Stop and think of the implications of that. One group is programmatically better than others. What does that call to mind?
Well, rather than going there (nor will I talk about what he said about Kentucky), let's talk about KIPP, rice patties, and Native Americans. What Gladwell is saying is that there is fundamentally something nonacademic in poor, inner city, predominately black and brown lifestyles. KIPP "recultures" these students into an academic culture and basically pulls them out of the cultures they were from. These students go on to achieve well in high school, enroll in college and wind up in middle class, suburban lifestyles. What could possibly be wrong with that?
Well, were this a new idea, I'd give it more consideration, but it is not. We did this in the United States already, several times actually. In fact, we have been having this exact same battle for a very long time. I'll let Andrew tell you about the U.S. government education policy of reculturing. But it is not just the official reculturing of Native Americans, this was also the debate between Booker T. Washington and W. E. B. DuBois in African-American educational history. This "success is tied to cultural opportunities idea" is not new and in the past it has had some major impacts, both positive and negative.
Anyway, I am not going to get into that discussion other than to point out that Gladwell is not really saying anything new, he is just retelling a centuries old story in a very modern package with Bill Gates as a main character. For instance, Gladwell assumes that Bill Gates is successful and Christopher Langan is not. Why? They both seem happily married and have some acres. Both have libraries in their house -- does the fact that Gates' is organized in oak bookshelves really make the difference? And, what, exactly, makes Robert Oppenheimer a success? The fact he built the most dangerous weapon in human history?
What I am saying is that just because the storyteller tells a good story, it does not mean the story is good or that the story's assumptions are accurate. There must be a MUCH more serious conversation about such things before we run off and start changing policies. Some of that conversation needs to happen in the scholarly world, as Jon concludes, and some of that needs to happen in other places.
But, just like we don't need to change foreign relations with China because Tom Friedman says so, we don't need to be changing our schools because Malcolm Gladwell says so. Let's not rush to judgment here. Gladwell's positions are extremely dangerous and it has taken us decades to work those out of the education system. Let's not put them back in one fell swoop.
Today we got the ruling from the Supreme Court in Ricci v. DeStefano - the case that people only really care about because the Supreme Court overturned the Second Circuit panel on which nominee J. Sonia Sotomayor sat. The point I want to make is not the one that you will see splashed all over the papers or cable news in the coming months, but instead I want to use this opportunity to reiterate that discrimination is an extremely delicate topic - and really, one best dealt with by lawyers.
The New Haven Fire Department thought it was doing the right thing in tossing a test that seemed discriminatory against African Americans. Turns out, as the Supreme Court has ruled, it was discriminatory against Whites and Latinos. The question here was whether in trying to reduce a disparate impact against one racial minority, the employers in fact committed disparate treatment Photocredit: TheeErinagainst other racial groups. Really, this is can't win territory here and the best legal route may not, and probably does not, correspond with the best ethical route. Ethics aside, even then it can be extremely difficult to know what the proper legal route is as we swing 5-4 in case after case from the Supreme Court in this area.
So, I am going to go against my normal tradition today which encourages school administrators to make their own informed, best legal judgments and recommend that when it comes to issues of discrimination in the workplace ... call your board attorney.
P.S. - Know what today's decision makes me think about, and question? - the discrimination inherent in merit pay systems. Today's decision may quell some of those fears (or heighten them, as we know that future Justice Sotomayor would go the other way).
A good deal of scholarship has been published in the legal and educational communities since the Supreme Court decided the Parents Involved case. In that case, the Court struck down the student assignment systems of Seattle, Washington and Louisville, Kentucky on Equal Protection grounds. Justice Kennedy (nearly universally regarded as the "swing" Justice, now that Justice O'Connor is gone) wrote the decision.
Most of the scholarship has either described the case, fit the case into existing jurisprudence, or made normative claims about its correctness or the likely consequences. Recently, though, I came across an interesting piece in the Teachers College Record addressing the case from the perspective of a social science researcher. The author, Professor David Armor of George Mason University, evaluates the portions of Justice Kennedy's opinion in which he accepted the conclusion of the "liberal wing" of the Court that desegregation was a compelling governmental interest, but rejected the justification for this conclusion, which the Justices in the "liberal wing" based on social science evidence indicating positive average effect sizes in test scores resulting from desegregation. Professor Armor makes some important points that practitioners and researchers of constitutional law would do well to understand. The article is here. In particular, I think Professor Armor gets at a thorny concept--statistical effect versus the practical meaning of such an effect--that confuses many legal decision makers.
I think that Professor Armor's points are particularly salient today because legal scholarship, and increasingly legal adjudication, are becoming permeated with social science methodologies and evidence. Few lawyers and judges have the training necessary to understand such evidence and its limitations, and much legal decision making involving such information illustrates this lack of training. I hope that more work like Professor Armor's will help legal decision makers to understand what social science evidence can and cannot show.
Mark Walsh has done a superb job as always in previewing the upcoming Supreme Court cases related to education and instead of duplicating the effort, I will just point you over there. Mark usually attends the oral arguments as well, so be sure to watch for that also.
We are lucky to have a great resource like Mark in our field and since he is funded under a business structure instead of a university structure, be sure to patronize him plenty to make sure his employer is aware of his value.
The news making the rounds this week is the school outside Cleveland that is being sued over a student's suicide, which the parents claim is a result of unaddressed bullying. It is quite the interesting case and, if it doesn't settle, will make for a nice test case. The parents are clearly angling for a Title IX based claim under the Davis Standard.
Teasing, verbal intimidation and name-calling — terms such as "gay," "queer" and "homo" — would lead to pushing, shoving and hitting in the classroom and hallways, according to the lawsuit.
An administrator even saw Eric crying in the hallway the day of his death but took no action, the lawsuits claims.
Eric's mother, who works at Roosevelt Elementary in Euclid, calls the filing a final effort to get the Mentor School District to admit it has a problem.
"Quite frankly if they had said, 'Bill and Jan, we're really sorry, we're going to work really hard to make sure this doesn't happen again,' I wouldn't be doing this," she said. "Instead they looked me in the face and said, 'Oh, we didn't know this was happening.' "
The homosexual based bullying issue is really interesting because few courts have recognized that as a legitimate claim under the Davis standard - and it doesn't strike me that the homosexual issue was at the heart of this bullying case. Also, you can see the parents positioning to make a "deliberate indifference" claim. However, at other points in the article it does seem like school officials did take some actions, even if they eventually proved inadequate. In addition, the case also directly calls in to question the Olewus Bullying Prevention Program, which is a very popular program around the country and is going to cause a lot of schools to watch this case.
Overall, I don't think the parents have a lot of solid legal ground here. Even the Ohio Anti-Bullying Statute directly states it does not give rise to a private right of action. But, the finality and shock of a suicide will put the judge to the test, so don't be surprised if he or she eventually finds a way to let this parent recover, assuming it doesn't settle ... which I think it will. The district doesn't want a few years of headlines on this issue.
Here's the title of the conference: Looking to the Future: Legal and Policy Options for Racially Integrated Education in the South and the Nation
Here is the brochure. It is April 2, so it is coming up, and it is cheap ($50 / $10 for students!) - but you need to register by the end of the week. I have exceeded my travel budget for this year already, so I won't be making the trip, but it does sound very interesting and they have a lot of great panelists ... including the guy I interviewed for Episode 3, which should be up in the morning.
On today's MLK day, the day before the inauguration of Pres. Obama, I spent pretty much the whole day thinking about Charles Hamilton Houston. For me there is so much symmetry between Obama and Houston (and so much to learn from both of them). Besides the obvious things like the Harvard Law Review and being law professors, they shared an ideological symmetry. Both fundamentally believed in the American system. That if tested, America could and would make the right choices. Both men put America to the test and came out making us all more hopeful for our futures. So, tonight, on the eve of the big day I have a delighted, peaceful smile on my face for Mr. Houston. The man that brought down Jim Crow and created the space for Barack Obama. Always good to remember those that spent their lives working for our future.
Justin Bathonon Wednesday, December 17, 2008 at 9:35AM
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.
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.
Justin Bathonon Wednesday, November 19, 2008 at 9:42AM
My sharp as a tack ed. law class asked me the other day whether the privledging of male teachers in hiring decisions in schools constitutes discrimination. The short answer here is yes, it does. But, let's break it down a little.
It is certainly no secret that education has a lack of male teachers, and doesn't really know what to do about it as my friend Shaun Johnson notes. Less than 10 percent of elementary school teachers are male, according to the NEA in 2003. It is also no secret that men are privileged in hiring decisions by principals simply because they are men. When I was coming up the teaching ranks I was frequently told that "I would have no problem finding a job because I was a man and we needed more male English teachers." Even when I was hired in a public high school I was explicitly told that "It was nice I was a man because I could relate more to the students" (I taught a lot of behavior challenged boys). So, it is out there and I don't think anyone that's been in the schools would seriously dispute that.
So, let's look at the underlying legal issues here. First, think about discrimination broadly. The question is not whether there is discrimination (there always is some form of discrimination conceptualized broadly), but whether that discrimination is illegal. We discriminate all the time, but usually all we need is a rational reason to do so. We discriminate by college attended, for instance. We discriminate by grade point average. That's fine. The college you go to or the GPA you earn are not protected classes and thus all we need is a rational reason to discriminate using those reasons under the 14th Amendment's Equal Protection Clause. But, sex is a protected class in America under Title VII. In fact, here is the language:
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. Let's try this test out: Who should supervise the girl's locker room? There is a compelling case to be made that only a female teacher should do so. If we discriminately hire only female teachers to teach girl's P.E., but limit ourselves only to P.E. the courts are going to say that is fine because there is 1) a compelling reason to discriminate and 2) the policy was narrowly tailored. Okay, see how that works? Well, let's play the same game with male elementary teachers. Is there a compelling interest to hire male teachers? Is there a reason that only a man should teach second graders? No. Is there some potential benefit? Absolutely. But does that benefit rise to the level of a compelling interest? Absolutely not. Thus, if you are using sex, namely maleness, as a basis in your hiring decisions, you are illegally discriminating against female candidates.
So, there is the law behind this and why it is illegal to base your typical hiring decisions for teaching positions on maleness. There is no affirmative action for male teachers. If you have a more qualified female candidate and you privledge the less qualified male candidate (even though you have good intentions), you could be successfully sued.
So, what to do about this? Well, here are a few suggestions, although I am sure there are lots more.
Take advantage of the men you do have. When I was teaching, because there were few men in the school, I was asked to take boys aside from time to time. I did it and it was fine with me.
Support your female teachers. There is a difference in levels of authority associated with different sexes and men naturally get more authority associated to them by young boys - it is unfortunately still part of our culture. But, that doesn't mean that only men can be authority figures - women can also and administrators can help by making sure they themselves are associating just as much authority in their female teachers. Kids pick up on these things.
Use coach's to your advantage. There is a lot of discrimination in sports, moreso than perhaps any other area in the schools. In fact, we had to pass a whole nother law about that. But, the fact remains that there are men accessible to schools in the coaching ranks. Volunteer dads, assistant coaches, referees ... these men can be allies for schools and help convey a consistent message with the administration.
Tap into male dominated fields. Invite an engineer to your science class or the local newspaper man to your English class. Most business folks are happy to give back to the schools.
Father - Son activites. Title IX makes a specific exception for these activities, although you need to do mother-daughter activities as well.
Anyway, I am sure there are lots more, but those are just a few from the top of my head. The point is there are legal ways to increase the male presence in your schools. But, basing hiring decisions on maleness and hiring less qualified male candidates for teaching positions is illegal.
The National Women's Law Center is holding a free webinar on dropout prevention policies for girls. Issues to be addressed include pregnancy and parenting responsibilities of girls and model programs for addressing these challenges. It's next Wednesday at 1 eastern for those interested. Register here.
If you got tips on educational law related events, send them to me personally like their online outreach director did and I will consider posting them.
Today is important. I want to share some reflections and feelings not because I think any of you will be interested in them, but that 40-50 years from now I can come back and read about what I was feeling on this day. So, I am going to be updating this thread all day with whatever I am feeling. I am sure bloggers around the globe will be doing the same thing.
7:50 am - First thing I did this morning was turn on MSNBC and sat in my favorite chair with my son. My son is two, but he knows who Obama is. He usually doesn't get the O on Obama, but he knows. In fact, Obama is the first non-cartoon character that he knows from the television. When I was his age another important candidate in American history was just taking the stage named Ronald Reagan and I see today as the end of the Reagan era. The pundits like to say we are a conservative country - they say that because their generation is a conservative generation. My generation is not - and they are telling that to the country today. I am proud of my generation for having the courage to take leadership in this country and to stop some of the silliness that has been going on lately. I don't know how we will do in governing, but I think we will hold our own - because we are a responsible generation. We did our homework, we work late nights, we see the greater good - like generations before us. I am not sure that one party or the other will be able to hold this generation, but the progressive ideals and lack of a fear of government of this generation will have lasting effects. - I want this day to last forever. I am only going to do a little work today. Mostly, I just want to enjoy this.
10:00 am - Just Voted. I voted for Obama - Biden. There was surprisingly little else to vote for in my precinct. There is an interesting Senate race in Kentucky, but most of the local board members and judges ran unopposed. The lines was about 40 people deep when I arrived and it took me about 50 min. altogether because they only had 2 voting machines for my whole neighborhood, which is very politically active. I live in a very old neighborhood, as the average age of the folks voting was probably 50+. I was probably the youngest homeowner in the line. Everyone was nice and in an upbeat mood and there was no silliness going on. The poll workers told me that at 7 this morning, the line stretched out the door 150+ people deep, and that they expect double that this evening when the polls close. That's a lot of pressure on 2 voting machines.
1:00 pm - Its midday now. With my vote behind me and the events of the evening still hours away, I wanted to reflect a little on education during this campaign. Basically, I want to reflect on what didn't happen. Neither candidate has a real education plan. There are high points in both candidate's rhetoric like Obama's $4,000 Opportunity Tax Credit for college students and Palin's full funding statements on IDEA. But, really, there's nothing there. It's all fluff. Neither candidate had the courage to propose a real education plan. And I think that is very sad. As a believer that the 10th Amendment still means something in this country, I am always mixed on the role of the federal government. But, one area where I am not mixed is on leadership. We are not going to transform our schools without some national leadership and motivation. But, its just not going to happen with either of these two, I am afraid. Consider if one of the candidates proposed putting a laptop in the hand of every public school studnet in the country ... all 50,000,000 of them over the course of five years (kids get new laptops at the beginning of 3rd, 7th, and 10th grades). You spend 10 billion dollars a year on the project on a rolling basis. Think what that would do for math and science development of kids. Think what that would do for new business generation amongst young people. Think of the paper we could save. Think of the sheer amount of copying time that we could save teachers. And, folks, while this may sound like a crazy expensive proposal, it is less than what we spend for a single month in Iraq. Just taking 1/12 of what we are annually spending on Iraq per year, we could digitize education in five years (teachers get laptops and training too). That's a plan. That's substance. That's talking about changing how we do business in schools. But, instead we got fluff. That's why although I voted for Obama, I did not endorse him on this blog. This is an education minded blog and neither candidate had a real education plan, so I didn't endorse.
4:20 pm - I am at the office and really no one is here. Kentucky has a thing where public offices are closed on Election day, including schools, so the doors are locked and the parking lot is empty. So, its like one of those odd federal holidays where businesses are working, but that's it. Luckily my day care was open. I am certainly mixed on this idea. It took me an hour to vote this morning and I plan on watching the returns come in tonight. But, that's it. The rest of the day I am not devoting to the election. So, much of the day is wasted (well, not for me, I came into the office). Perhaps a 1/2 day holiday would be appropriate here. Let all the retired folks vote in the morning when the public offices are open and folks/kids are at jobs/school. Then after lunch, let all the governmental employees out as well as the schools. They can pick up their kids and go vote so the kids get a good civics lesson and the parents get a little extra time to hit the polls. Or, alternatively, we should just invest more heavily in early voting. I am jealous of all the states where there is no-excuse early voting. I wish Kentucky would consider that.
5:30 pm - Ready to go home. My expectations tonight are for an Obama victory and really, I don't expect it to be all that close (in my inter-departmental prediction game I predicted Obama with 333 electoral votes). So, I am not really nervous or anything. My expectations for what I will be feeling tonight are interesting though. Pretty much the whole day I have been on the verge of tears. So far, they have all been tears of joy as I have felt my confidence in America restored over the past months. As I see the internal healing that we are current participating in, I can't help but love the American democracy that makes this possible and the future of that democracy that work for everyday. So, I am expecting to cry tonight. I am not really big on crying, but these are the kinds of things that can bring tears to my eyes because I fully understand the importance of this. Should be an interesting evening. Jennifer, my wife, got Chinese - my favorite food - so if nothing else, I will enjoy that.
7:30 pm - Kentucky goes to McCain. Literally the first state in the nation to be called. I am from Southern Illinois and feel very comfortable in Kentucky, but the fact that Kentucky didn't even get close in this election gives me some pause. Kentucky is in terrible shape economically ... yet they didn't even consider voting for the Democratic Party candidate. There is no use in avoiding the elephant in the room, race had something to do with it here - although I think less than people would expect. There is more of just a conservative tradition - where people are used to voting for Republicans because that is what they have done for 40 years. But, nevertheless, Kentucky made a statement tonight about how willing or able they are to change in a progressive way and, frankly, I am a little disappointed.
8:10 pm - Like all the primaries, I follow along with the TV with my laptop and the technology in this election is getting pretty good. Once development that wouldn't have happened last election is widgets. Now, all the major media companies are developing widgets which folks like me can put on our own webpages. So, I included a widget on the election below the fold. Also, the county by county results are pretty impressive. I know Indiana pretty well, and watching the county by county results in Indiana is very instructive because I can see when the Republican and Democratic strongholds come in (so far Indiana is looking good for Obama).
9:30 pm - MSNBC calls Ohio for Obama. Its over. Voting is still going on in the West, but its over now. I have a sore throat, but it didn't keep me from shouting.
9:50 pm - It is starting to sink in now a little. We have seen so much of Obama over the last year that it is easy to forget some things. The networks are not showing many pictures of him except the classic headshots, so you focus on the color of the states and not the color of his skin. This is an African-American. Had this been only a few generations ago, the U.S. government would have considered him the property of another human. I mean, its been a long time since then ... but not that long. Just a few generations.
10:50 pm - CNN just did will.i.am by hologram. Yeah, hologram. The technological competition between the networks is fun to watch, but also helpful for the country. Hologram technology is going to see a HUGE boost now that the nation has seen it work.
11:00 pm - The nets call it. A few tears now. What a candidate. What a country.
11:04 pm - No words from the networks ... none for me either. History - that's it.
11:12 pm - Celebration. Worldwide. America is a leader again.
11:20 pm - Tough speech for McCain. He has a large responsibility now to help heal the country. History will remember him well if he does.
11:21 pm - Yes WE can. And did. I will carry the pride of participating in this election with me forever.
11:30 pm - President Barack Obama. President Barack Hussein Obama. The most powerful man in the world. That's just crazy! Would would the odds have been against that happening? A Billion to One?
11:46 pm - Let's take a second to reflect here before his speech begins. Now, we are at landslide. Even Indiana looks to be going Obama. There is something to be said for pure leadership. Yes, this Obama guy is a hell of a politician. But, he is also an honest-to-god leader. When it was a bad political idea to oppose the Iraq war - he opposed it. In the primaries, when it was a bad idea to talk about merit pay - he talked about merit pay. He told Detroit they have to get green. He told the rich they would be taxed more. Here's the thing. The American people are intelligent. They like when people talk to them like adults. The genius of Obama is to assume the American people were willing to hear honesty. To give a speech like this, for instance. -- But, the underlying genius of Obama is in how he sees the world. It is one thing to speak to the American people honestly, but it is quite another for them to like what you have to say. What Obama had to say was fundamentally that the American government was not something to be scared of. That government is nothing more than a collection of neighbors working toward common goals.
12:18 am - And so it begins. Should be an interesting journey.
12:21 am - Amazing what a man can do with hard work, determination and a keen mind. He can inspire the world.
12:36 am - I am going to bed now, in a very different country than the one I woke up in this morning. Something very, very good about that. A night I will remember forever.
Schools are canceling class more because of safety concerns on voting day. I am okay with that. Sends a good message to students that voting is pretty important.
In honor of the world series ... The United Countries of Baseball - I love pictures like this. Nice to see the team with one of the smallest nations in the Series. I am a national league guy (a Cardinals fan for life), but you can't root against the Rays here.
The administrator retirement caps issue in New Jersey hits formal hearings. If I were school administrators, I would watch this closely as this could be a "coming soon to a state near you" kind of issue.
Some pushback on attendance, special education and NCLB passage rates. This was a nice story and it was on page A1 of the Washington Post ... Kudos, folks.
A 45 year school desegregation case in Macon, GA finally comes to a close. They won't know what to do without it.
Mark Walsh has his story on the AEI/Fordham legal history of education forum. It sounds really cool and I wish I could have gone. They said they would put the video up, but I have not seen it yet. If I do, I will post it.
The Connecticut Ed. Law Blog has a good point that the ADA amendments may require changes to 504 forms as well.
Stanley Fish, Sherman Dorn, Andrew Rotherham, & Joanne Jacobs weigh in on the NY political speech controversy. If that case was all about making a widely distributed political statement ... mission accomplished. For your Friday Fun: Last weekend I made applebutter (and like I said last week, I burned my hand). Anyway lots of people in my office this week wanted to know about how you made it, so here is a good video from Southern Illinois about our traditions and how we made it (we cooked ours in the kettle but started with whole apples instead of boiling down the day before). We made 150 quarts of applebutter last weekend and only I was injured ... so that's pretty good.
I have been trying to be patient with this growing single-sex classroom idea. I have tried to withhold judgment and see the issue from all sides. I see the articles week after week from around the country touting how it is such a good idea. But, I just can't get on board with it. Now that it has taken hold in a major American city, Boston, I think it is time to start pushing back against this idea.
Now I am as much about improving student achievement as the next person and I realize the demands being placed on school leaders to have their students perform. The awkward glancing between a bespectacled boy and a flirtatious girl wastes time that could otherwise be devoted to imaginary numbers. Girls, not wanting to act smart in front of their "less smart" male counterparts, may not participate as much in class. So, I get it. I see the benefits. But, I don't buy it. Not for a second.
State sponsored segregation, de jure segregation, by gender, a protected class.
What about that sounds good? What about that sounds legal? Seems like we had a little case about schools engaging in de jure segregation round about 50 years ago. Now, I get the opt out provisions ... but don't kid yourself, this is state sponsored segregation at its core. This is saying that this group performs differently than that group, and that they are not equal and they need to be separated. Forget the separate but equal business all the people are touting in association with this plan, separate can never be equal. You can randomize everything (teacher assignments, classrooms used) but it ain't gonna be equal. And equal is not a matter of better or worse, it is a matter of equal. Don't think about it in terms of the girl's class will be better or the boys class will be better, both classes could be no better or no worse than the other, but even if these were somehow miraculously evenly good, they would still not be equal.
"We come then to the question presented: does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does."
"We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."
About as clear as prescription against state sponsored segregation as you are going to get. To me this segregation by gender is clearly illegal. It is almost spitting in the face of Brown v. Board. But, on top of that, I just plain think this is a horrible idea as an educator. We all know that school is more than about test scores. Well, those awkward glances between boys and girls is partly what school is about. I realize that girls might not be raising their hand as much and I want female students to learn as much as the boys and to grow up and to be corporate CEOs and scientists and everything else. But, you just flat can't separate kids like this. It is inherently unequal.
Update: I knew there were some lawsuits in the works against this, but didn't take the time to research them. Luckily, Western New England Law Professor Erin Buzuvis at Title IX Blog is keeping tabs.
Justin Bathon on 
Information Age Press has a new publication opportunity for peer-reviewed chapters in a book to be titled "Law & Educational Inequality: Removing Barries to Educational Opportunities." The effort is lead by our friends Susan Bon, Kevin Brady, Karen Miksch & Jeffery Sun. The deadline for chapters is August 15 and publication is expected early next year. More information about the opportunity can be found in this call for papers. 
