Should an Educational Leader's Testimonial Speech be Protected?

Imagine that you are an educational leader hired to head up an important community college program for at-risk youth.  In your first days on the job, you do what any good leader does and audit the books.  Through this review, you discover that you have an employee who is drawing a large salary from the program, but is not doing much, if any, work.  You do some further digging, and you realize that this "employee" with the "no-show" job is also a sitting state legislator.  You care about your fiduciary duty over the public money you've been entrusted, so you confront the no-show employee and request that she begin showing up and working.  She not only refuses, but also threatens your livelihood.  You are not a coward, so you fire her.  Not only that, but when subpoenaed, you testify truthfully against her in her criminal trial once the feds discover her fraud.  Soon after, you are fired. 

You file suit against your former employer to challenge your termination as retaliation for your speech as a citizen on a matter of public concern.  But the District Court, and later the Circuit Court of Appeals, reject your challenge, citing the Suprme Court's recent decision in Garcetti v. Ceballos.  In Garcetti, the Court held that, "when public employees speak pursuant to their official duties, they do not speak as citizens, and the First Amendment does not shield their communications from employer discipline."  Essentially, speech that a public employee is hired to make is not that employee's own speech, but his work product, and may therefore be the basis of employer discipline.  The Circuit Court cites Garcetti and reasons that, because you testified only about matters you learned about at work, your testimonial speech "owe[d] its existence" to your employment, and was therefore made "pursuant to [your] official duties."  Notwithstanding the Garcetti rule, the Circuit Court proclaims that it is immaterial that your job does not require you to testify in judicial proceedings, as long as your testimony is about your job. 

Should this judicial sleight-of-hand resulting in an unbelievably expansive reading of the Garcetti exemption be allowed to stand?  In Lane v. Franks, the Court will consider the question on alleged facts similar to those in the vignette above.  Along with Professors Paul Secunda and Sheldon Nahmod, and on behalf of more than 60 other law professors, I have written an amicus brief (free download) arguing for the reversal of the 11th Circuit's flawed reading of Garcetti.  The case will be argued on April 28th, and it could have major implications for public employees--including educational employees--nationwide. 

The Consequences of Overpaying University Presidents

Law professors Brian Galle and David Walker have just posted to SSRN (free download) a new article identifying a negative association between non-profit executive pay and donor generosity.  That is, according to their study, as we continue to increase the pay of university presidents, we should expect private gifts to the same universities to decline.  I am familiar at least with Brian's prior work, and his scholarship is top-notch, so I am inclined to take this study seriously, as Boards of Trustees should.  Check it out here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2187979 . 

Openness is Really Important for Education Law

Clay Shirky has a new TED talk out on how the Internet might influence the structure of democracy, making it much more open source. Worth watching and thinking about school law. 

Now, your average school leader or education lawyer is not going to jump into open source coding using some unknown programming language ... but they can absolutely start open source coding. 

Consider this: What if you put out your school policy in a open, editable Google Doc.? Currently we write school policy in Word. What if we did that in Google Docs? Subtle change, enormous difference. 

First, this solves several problems that schools have. 

1. Not everyone has Word on their home computers and struggle to open the Word files. 
2. Tablet computers also struggle with Microsoft Office, so another plus. 
3. You can hyperlink, embed videos, and more. Referencing a state policy on an issue, just link to it. Really want to put an explanatory footnote on a policy, embed an instructional video. 
4. Multiple people can work on the document at once and no more passing around dozens of versions by email attachment. 
5. The public always has the latest version of school policy. No more out-of-date links on school website (which is actually a pretty big problem), just link to the Google Doc (editable or not). 

And that is just solving the easy problems, let alone the much more important issue of people actually caring or knowing these things exist. Taking an open approach to school policy not only would engage teachers, students, and the community ... it will probably improve the policies (because right now, most of them are not very good)! 

Whether or not you like that idea (and most school attorneys will not), we need to be moving toward opening our education law rather than seeking to further close it off in more and more committees and documents that no one ever even knows exists. Our schools are for our communities (they pay the bill). If we can leverage technology to give it back to them, we should. 

New Education Law Text Takes a Different Approach

It is not often I review textbooks on the blog. In fact, I am not sure I ever have before. Mostly that is just because I am so firmly entrenched with this one, as it was the one I learned with and even helped a bit on an edition or two ago. Now, I use that one for my principal classes, but do not use a textbook for my teacher leader or undergraduate classes.  

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

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

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

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

Ask your students out there which one they favor. 

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

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

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

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

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

The Case of High Heels and the First Amendment

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.

State Court Funding Symposium

I want to announce to our readers an upcoming event at the Universiy of Kentucky College of Law that has implications for education law.  The event, jointly sponsored by the Kentucky Law Journal, the American Bar Association, and the Center for State Courts, is a symposium on the funding of state courts, many of which are currently in what can best be described as a resource crisis.  Here is a link to the schedule of events on September 23-24, which include Keynote addresses by both Dean Erwin Chemerinsky of the UC-Irvine School of Law and current ABA President (and UK Law grad) Bill Robinson. 

Now, what does this have to do with education law?  Well, two major things.  First, as with almost all categories of law, the majority of education related disputes are resolved in state judicial systems.  A funding crisis in those systems will inevitably lead to a crisis in educational dispute resolution.  Second, as many of you know, to the extent that "education rights" exist in our system, these rights are primarily state constitutional rights.  Where state judicial systems are hampered, the development of these rights is also hampered.  The issue of state court funding is therefore a vital one for those interested in education policy and law. 

I encourage anyone with an interest in these issues of access to justice (and the ability to be in beautiful Lexington, KY this Friday and Saturday) to attend the symposium. 

Early Childhood Education Law Resources? Or Not.

This afternoon I am presenting on technology and law (what else, right?) to the Kentucky Infant - Toddler Institute. I was a high school teacher, so early childhood education is pretty far from my area of expertise. The only real expertise I have on this topic is simply because of my kids (it was Matthew's first day of Kindergartern, by the way, so I had to attach a picture from this morning). 

Anyway, where are the early childhood education law resources? I looked around a little on the net and found a few valuable things, but there is no textbooks out there on this. Not a lot of online guides. There seems to be some special education stuff, but generally it seems a relatively neglected area of the law. From a legal standpoint only, this is sort of a problem because there are a lot of legal complexities in early childhood, in particular. There are a lot of different types of providers out there, and differing legal systems might apply in differing situations. 

So, some enterprising young researcher out there with an early childhood background, here is a niche for you. We could use some help here. 

Why Don't Classrooms Look Like This?

This is a picture of our Lab Space (The Keep) in Dickey Hall at the University of Kentucky (notice the play-doh). We have students workspace in this room and a conference table and whatnot. We developed this room from a former computer lab for about a couple thousand (mostly of our own money).

So, I am sitting here (that's my laptop) trying to find the right room for my class of about 20 principal students to meet in this Fall. I don't want a classroom with those 1954 squeeze-your-butt-in-desks and I'm not a huge fan of the industrial square table room either. So, it struck me ... why don't our classrooms look like where I am sitting right now? I want a classroom full of couches! Maybe even a flatscreen on the wall. And plants. Why don't we have plants in our higher education classrooms? And, yeah, play-doh. 

I'm serious. Why don't our higher education classrooms look like this? 

Leaders v. Reformers - Mistaking the Gloss

There is a difference. I do not think they are mutually exclusive, but I think they are too often confused. This page, for instance, is a mix of reformers and leaders, but not necessarily both as they are improperly labeled. How can you call Robert Bobb a leader? He is an administrator, but his "intention" to lead change does not equate with leadership. Michelle Rhee, too, is much more a reformer than a leader. 

Yesterday, I got to spend the day with Carmen Coleman, the Superintendent in Danville Independent here in Kentucky. Carmen is a leader, then a reformer. Leading the district is the primary task, it just so happens the right path for the district is through reform. 

It annoys me that people like Michelle Rhee or most of the other names that get tossed around are called the "education leaders" of this country. That's, frankly, a load of B.S. Michelle Rhee is a leader in the reform movement, but is not an education leader in the same way that Carmen is. 

As we view the structure of our system, let's just not confuse the glossy paint of reform with the steel studs of leadership. The color of the walls will change frequently - but that the wall exists is thanks to leadership. 

Knowledge of the Business of Higher Education ... And Our Lack Thereof

Why do we not teach future faculty members anything about the business of higher education before we put them into the teaching jobs? It is an enormous deficiency in our knowledge base and I think it has real, negative effects on the institutions that hire us. 

I just wish I knew a lot more about running a higher education business than I do. I feel I basically have to learn all of that on the fly, and (honestly) sometimes I am making mistakes. 

For instance, recruiting and marketing. Increasingly, departments (especially mine) are having to do most of our own recruiting and marketing. I know little to nothing about these things, but they are vital to the health and prosperity of our department. To be honest, I wish I knew a little less about John Dewey and a little more about this. 

And, I think the implications are that many departments and programs are struggling with the actual business of running these places - leading to institutional weakness. I think this is particularly acute in the Research Universities that tend to hire folks like me ... relatively young, newly hooded, naive, inexperienced greenhorns. Don't get me wrong, some of these greenhorns have remarkable ideas -- and, perhaps, some of us will cure cancer or something (or help lead a technology revolution in our education systems ;). But, to do that, we need functional and economically healthy departments within which to work. Regional and private universities tend to hire a greater percentage of second-career professors. Presumably, these folks learned the business of something in their first career, and are capable of adapting some of these ideas. There is still a tremendous knowledge gap for these folks, and an ever greater knowledge gap on the research front, but purely from a business standpoint, they seem to have a bit of a leg-up. 

Across te board though, it seems at least to me, that more and more of that "economically healthy" work is falling to new professors. So, perhaps we should think about some formal attempt to prep them for these roles? 

I don't know. Just a thought on a late Sunday night to interrupt my grading.  

Facebook is the Local Newspaper Now ...

Facebook is the new local newspaper ... in case you hadn't noticed. 

Case in point ... the Pinckneyville Post today. The "Post" publishes an actual newspaper (I've seen it, it is about 10 pages long, typical newspaper size, typically 2 actual stories, obituaries, classifieds and not much else). You should know that Pinckneyville is one town south of where I grew up and it is my wife's town, actually, which is why I follow it. It has 5,000 some people, but only 3,000 some real residents because it has a prison which adds to the population. In addition to the actual newspaper, it has 2,000 Facebook followers (I can only assume that exceeds their paper subscriptions). 

This discussion took place on Facebook today. Give it a quick glace, but here is a summary. The transportation department removed one of the signs leading into the city that had been there for several years that celebrated a high school track champion for the state of Illinois. The newspaper did its investigation and posted the results on the Facebook page, along with the photo. Then, 25 comments later (so far) a group of saddened local residents had decided to petition the local high school board to name the new track after the girl (as well as find and give the old sign to the girl). 

This is a really, really, really common thing on Facebook and this is a super insignificant incident anywhere outside of Pinckneyville, Illinois. But, that's the point. And it is one that school officials need to understand. Facebook is the local newspaper now. It is also the local gathering place. It is the local front steps of the Courthouse, too. It is all that, and more, wrapped up into a single technology that makes democracy easier.

Interactive Snowday Notification

One of the things that has caught my eye this winter is the use of Facebook to notify parents of school closures. In particular, the comment option on Facebook posts has be used frequently by parents to give their two cents on the decision. Today, for instance, my local district, Fayette County Public Schools, has cancelled. It's borderline today (my kids preschool stayed open), so the comments are pouring in and the discussion is intense.  

I've noticed that districts have been dealing with this differently on their Facebook pages. Consider that FCPS is responding to some, not to others, but doing so from a professional district account. Also, the responses are coming from FCPS' PR department. After a series of tough comments on the decision, FCPS made this response: 

A different way of dealing with this comes from another large district in Kentucky, where the Superintendent himself posts the notification and responds to comments (and gets the spam): 

Of course, other districts can either post nothing at all, or just refuse to respond to comments. I'm not sure what the best procedures are, but it has been extremely interesting this year (because of the frequency of snow days and the tipping point Facebook has seemed to cross). Either way, it is a very interesting new conversation taking place between school officials and their communities. 

Even though there is lots of potential for abuse and legal issues, generally, I think this is a good thing. And, if this is the icebreaker (pun intended) for districts utilizing Facebook pages more broadly both with communities and with students, then I am happy to see it. 

"Highly Qualified School Board Members:" Raising the Entry Qualifications

News out of Colorado today has a school board member bringing his gun to school board meetings because of his fear of retaliation over comments he made on his radio show. His comments were to the effect of denigrating and downright insulting Martin Luther King, Jr. The school board member is, apparently, an openly white supremacist and broadcasts his ideas over the radio and internet. In response to his "ideas," he has allegedly received death threats. 

In light of the recent school board shooting in Florida and still within the context of events during the previous week in Tucson, this board member feels the best idea is just to bring his gun with him to the school board meeting in case he needs to engage in a shoot-out, wild-west style, I guess. 

Aside from this obvious craziness, how do we get rid of folks like this, legally? The Colorado Constitution (Art. 9, Sec. 15), as well as many other states, require there to be a local board of education, so doing away with the whole thing is out of the question barring a constitutional amendment or convention. Further, attempting to impeach (for lack of a better word) a school board member would be procedurally complex and extended, meaning the member's term is likely to expire before the litigation completes. So, now what? 

How about this ... could we substantially raise the entry qualifications? We just got through a whole national push for "Highly Qualified Teachers," so perhaps it is time for a national push for "Highly Qualified School Board Members."

Most board qualifications look something like this, where the minimum qualifications are just to be a human adult and live in the district. In fact, that Louisiana one I just cited is unique in that it requires the board member to be able to read and write. Most, it seems, do not. In fact, likely the most complicated thing about running for school board is filling out the nominating papers. 

So, what about requiring a college degree to serve on a school board? Such a requirement would be legally possible, it seems. In particular Kentucky seems to be a leader on this front in requiring their board members to have completed the 12th grade or have received a GED certificate. In 1990, with KERA, we increased this from 8th grade to 12th grade, so increases are not out of the question. Further, case law in Kentucky has upheld these educational provisions (Commonwealth v. Norfleet (272 Ky. 800, 1938)). Thus, perhaps other states should consider this model and perhaps it is also time to increase the educational attainment to at least an Associates or Bachelors degree? 

In the same way that the federal government put forth the Highly Qualified definition, they could do the same thing for board members. It is a bit more complex because board members are elected officials, but I think the smart people in Washington could figure it out. Alternatively, states could just take it on themselves to increase board member qualifications. Politically, it seems, such a bill in the state legislature would not be dead on arrival, like some other possible changes to school board structure.  

Okay, the downside. While I don't see much downside, I do think it could harm representation particularly in two areas, minorities and the aging/elderly. Because drop-out and college attainment rates are lower in some minority populations, there would be less of a pool of candidates in some areas of the county. But, to me, even more of a reason to have college graduates on the board as examples to the students. Secondly, the bigger problem it seems, is that some elderly would not qualify not as a result of their lack of knowledge or hard work, but simply as a result of generational shifts in educational expectations. Because many current board members are older individuals (have a look at the rest of the board in Colorado), a phase-in provision might have to be added to compensate for these generational differences. Certainly there would have to be a grandfathering provision for all existing board members (no pun intended, of course). 

This kind of provision certainly would not get rid of all the crazy people. Remember, this guy had no problem attaining degrees from top schools. And, this guy in Colorado may well have a college degree, especially since it is a university town. But, generally, entry requirements for school board members would likely increase the quality and expectations of local school boards. Given that they are the true entity legally tasked with running local schools (not administrators or teachers), I think a national push to set a minimum educational attainment for local school boards makes perfect sense. 

Public Attacks - Usually a Bad Idea

Over the weekend, a furor arose in our little ed. leadership community over an article by Fenwick English listing the names of the The 10 Most Wanted Enemies of American Public Education’s School Leadership. One of the named individuals, Rick Hess, called them out on it - and rightly so. It was a bad move. 

Over the past several years, UCEA has sought to better engage the policy arena - thinking that by doing so we can increase the quality of leadership preparation, the leaders they produce, and thus our schools. This is a valid and noble goal as the quality of some preparation programs is highly suspect. 

But, UCEA must walk a fine line when it comes to advocacy of positions or criticism of others. Being a member of UCEA now for many years, it is absolutely no secret that it has a position - a highly liberal one. But, UCEA is a institutional membership organization, not an individual membership organization. Meaning, my university and most other research universities around the country are the real members, not the professors. And, I would imagine, there is a substantial divide between the positions of institutions and the positions of ed. leadership professors. How many university presidents would create such an enemies list? 

If we (and I am still very supportive of UCEA) are going to enter the advocacy arena in a bigger way, it must be done with class - even if the opposition lacks it in your opinion. We fancy ourselves as scholars and believe in the power of ideas, let us permit those ideas to be our positions. 

P20 Website & Next Generation Learning Summit

So, we launched the P20 website over the weekend. I know some of you have been wondering about it, so the new one is now out and there is space for feedback and whatnot. I'll have more news in the coming weeks about the companion network that is also launching and how to participate in it. Let me know any thoughts you have about the site. 

More importantly, though, tomorrow is a statewide superintendent summit on next generation learning. The Stupski Foundation really stepped up to the plate and worked with us to make this happen, so a big thank you to them. Also, KDE staff have been the chief organizers - even through a transition - so it really took a lot of pressure off of us at UK. Also, we also have to acknowledge the leadership of CCSSO, especially in merging the interests of Kentucky, the national priorities and the priorities of the Stupski Foundation. 

Kentucky is pretty much going all in on Next Generation Learning ... to the extent that all the new positions at KDE have it in the title. They even have a new director of innovation, David Cook, who is our primary partner in Frankfort. Our Governor, Steve Beshear, is even getting behind the effort. And, our former Commissioner who is now in Washington, Gene Wilhoit, is helping to guide the Kentucky effort. Kentucky might have been passed over by Washington, but we know what we can do here ... and we are going to do it with or without outside support. There are so many good people, so many innovators, that the surprise to me would be if Kentucky doesn't substantially move the innovation needle.  

So, tomorrow I'll be tweeting with the hashtag #kynxgl if you want to follow along and ask questions. 

Glad to get this ball rolling ... we'll see where it goes. 

Social Network Lockdown ... And What To Do About It

Angela Maiers got a note recently from a concerned teacher which she posted on her blog (thanks to @Linda407 for notifying me). The note basically articulates the tenuous position a teacher finds himself in after the school has issued policy stating that social networking (facebook/twitter, specifically) is not permitted at all during school hours - not even during the teacher's duty free lunch hour, according to his contract (must be a union state). The teacher is an avid user of facebook and twitter and so is very concerned and frustrated with this new policy and is at least considering violating it, even if it makes him a "martyr." 

So, both he and Angela asked about the legal issues surrounding this situation, so a quick refresher followed by some advice. 

First, duty free does not necessarily mean duty free, at least legally (see, for example Texas' law). Perhaps the union in that district negotiated that provision in the contract (good for them) but that provision does not mean you have no relationship with the school during that 1/2 hour. 

Now, breaks (meal and otherwise) are actually not a real clear legal area. There are just not all that many laws out there on the rights and responsibilities during breaks (if you are interested, here they are). Anyway, the lack of legal clarity here is probably bad for the employee's case as it gives employers lots of flexibility during these periods. So, I hear you saying it, "I'm not even getting paid during lunch." Yep, that's true. But, you are also not getting paid in the 15 min. before school officially starts nor the 30-45 min. after school officially ends, yet I think most of you would agree that a teacher feels some level of responsibility toward the school during these periods.

All of that is a long way of saying ... if you are at the school while the kids are there, you have some responsibility to be a teacher. How much? What types? That's all hard to say and would probably wind up being a roll of the legal dice (and cost you $10,000 or so) to find out.

Next step, what if you leave school premises and tweet while at McDonald's over lunch? Well, while the on-campus responsibilities will not apply, this is when the teacher lifestyle regulations kick in (side note: apparently Dave Schimmel has started convincing people to refer to such regulation as "teacher out-of-school conduct" - not sure whether I buy into that yet; I'll probably post on it eventually). Historically we have always given schools some latitude in regulating teacher behavior even outside of school (you can watch this module if you want to know more), so when your tweet pops up at 12:13 pm on the principal's tweetdeck account ... there is at least a legal avenue by which the administration can make an argument for regulation. 

Okay, I don't want to be Mr. Doom and Gloom entirely, so let's quickly look at the teacher's rights. Teachers are provided some expression rights and depending on the content of the tweet, that might come into play to protect the teacher. I won't even get into Garcetti, but I have before so you can read it there.  Also, the contract language of a duty free lunch could be construed the other way to protect social networking during lunch (again, that's a roll of the dice, depending on your state). And, if lifestyle is their argument, I think the teacher could make a good case that no natural nexus exists between social networking and school (although I know some would disagree). 

So, the bottom line as I see it (again, see disclaimer on right ... not legal advice) is a mixed bag and probably a legal fight. There is enough uncertainty in the law that the school might be willing to fight, meaning a lost job plus high legal costs for the teacher. Is tweeting during lunch worth it? I highly doubt it.

Look, the real problem here is this school's disdain for social networking. It is probably unfounded and reactionary, but it is real. If I were the teacher, that's the issue I would spend my time working on. Make it clear to the principal that you will abide by their rules, but that you disagree with them. Then, ask if you can set up a Twitter account for them. Or, friend them on Facebook. Or, show them Ning or Buddypress. Give them the names of principals in nearby districts that use social networking (your tech. coordinator will probably know of some). Ask to form a committee to review the policy. Ask to present that committee's report to the board. You get the idea. There are lots of acceptable, totally legal, avenues that you can take (it is still a democracy, after all).     

A kamikaze mission might change the policy in your instance, but it won't change the hearts and minds in your district. Your responsibility is to change the hearts and minds, not to go down in a blaze of glory.  

Rubber ... meet Road: Leadership Day 2010

It's leadership day again, something that is quickly becoming a CASTLE tradition. My previous leadership day posts are here and here. This year, I thought I would keep it simple and just reflect on a year's worth of statewide reform efforts here in Kentucky and some lessons learned and challenges ahead as I helped to lead this effort.  

I've not posted much about it here on the blog, but for the last year I have been dedicating a TON of my time to a new reform effort in Kentucky. It's sort of hard to put a name on it, but over time we have been branding it as the Kentucky P20 Innovation Lab: A Partnership for Next Generation Learning. We have national partners, state partners, school partners, university partners, and state government partners. Amongst all the partners a sense is starting to emerge that something significant is possible in Kentucky. Not small steps, but big steps. It may seem an unlikely place, but I promise you it is about perfect. It is neither too large nor too small. It is not arrogant. It has the right leaders in place. It has support in Washington, even without Race to the Top. It has the right internal political climate. It has universities on board. It has some money. And, mostly, it has done this before so everyone can believe it is possible again. 

So, in Year 1 we made amazing progress. We have the state excited about our effort and we generally have support from many necessary parties. We have identified some projects. We have won a national competition. We have funded 11 working labs. We have hired multiple staff. We have held statewide conferences and a meeting of the Governor's Taskforce. We have been the in the major state newspapers multiple times. On just about any measure, Year 1 has been a success. I am proud of my role in that effort and those accomplishments. I have worked on statewide projects before, but this the first time I am clearly a leader on a statewide reform effort so I want to share some of the lessons I learned in year 1 and some of the challenges I see coming in year 2.

Lessons Learned  

1. People are most important. In Austin a few months back when we were working with the Stupski and CCSSO folks they asked us to really narrow down the issues we were facing in Kentucky and potential roadblocks that we needed to address. After some tense conversation (see point 5) we really and unequivocally honed in on the fact that everything was either possible or impossible based on people. Not money, not time, not partners, not laws ... people and people by a longshot. Everything else can be negotiated with the right people. 
2. People need a plan. A real one, with the right other people involved. In the first 9 months or so of this P20 project, I spent almost all of my time building real plans that existing folks in the system could understand and participate in. It is an intellectual battle more than anything else to first convince people big time change is possible (don't underestimate the number of folks that have simply given up on such change) and second convince them that working together down a common path makes sense. To do this kind of very hard persuasion, you need a real plan and then you need other people to vouch for that plan. This is hard and takes time, but you must maintain patience through this phase. Meetings after meetings after meetings, most of which don't move the needle all that much. But, when a critical mass of people start to develop around a plan, they begin to vouch for it amongst themselves and jump on board. 
3. Big can be better. People like big ideas and naturally seem to gravitate to them. A statewide reform idea has to be big by nature or I don't think it will work. The idea has to be big enough that everyone can see themselves in it, from teachers to state leaders. Plus, the bigger the plan, the more the credit for it can be shared. We benefited greatly so far because our idea has been bigger than UK alone. Other universities can find a role in this plan and take leadership roles, even getting credit for components of it. Sure, big is harder to manage and harder to deliver, but just like gravity, the bigger the idea and plan, the more people that can naturally gravitate toward it.   
4. Time works against you. Just accept it, there is not going to be enough time to get even 1/4 of what you want to or think you can get done. As statewide reform unfolds, some people are going to wind up disappointed, but make sure you at least complete some projects. There has to be something to point to, even if that something does not please everybody. So, build in enough time to at least get a few projects finished.  
5. Tense conversations are usually good conversations. So, coming out of law school I was quite used to tense conversations. One (generally) learns how to disagree without being too disagreeable. But, educators are not at all used to tense conversations. After some of the tense conversations in the past year, the educators in the room came out thinking I was some sort of jerk. But, avoiding the tense conversations just prolongs the agony and wastes time (see point 4 above). And, after a few days or weeks, usually those same educators come up to me and thank me for addressing the real issue in a way that helped us move forward. 
6. Branding is critical. My nemesis on campus here is UK PR and we butt heads most frequently over branding issues. Branding is as much political as anything else because it is a statement of ownership - and people feel like they need to own things or at least feel comfortable with their 5 second analysis of who owns it. I don't exclude myself from this feeling as I have consistently fought for independent branding from UK, which, of course, annoys UK PR. Just be aware that branding is going to catch you off guard in the amount of time, thought and effort you need to put in it. 
7. Want to know what's going on ... build a website. I'm convinced that there is not a healthier process for organizations, especially start up organizations, than building a website. The categories, the colors, the clarity ... it's all there. You have to know who you are before you can tell others who you are. I'm not happy with the current P20 website (or our story), so for the last few months I have been working on a new website (and a new story). For instance, initially I used yellow based colors with a smattering of blue. But, this gave an impression that P20 was too distinct from the COE, which uses a distint style of blue. So, we switched and learned something about ourselves in the process. This will happen a lot as you build your movement's website.  
8. Sacrifice and Bravery (and Stupidity). Every time you want to do something different and keep your job, it is going to involve risk. Something is going to have to be sacrificed and to do so it is going to take bravery on the part of the reformer. For me, this has translated to neglecting traditional tenure requirements. Now, I'm not a total idiot so I am planning to clear the tenure bar, be it traditional or not. But, rest assured, my levels of traditional productivity could be much higher. This neglect might cost me money and it might eventually cost me my job. But, it is a risk I am willing to take. And, you must be to. At least 1 person has to roll the dice. Some people are going to call you stupid under their breath and in rumors ... that's when you know you are in the right zone. When people tell you that you are stupid to your face ... pull back a little. But, either way, they are going to be right and what you are doing is going to be stupid by traditional measures. Just remember, those measures are measures of value ... you bring value to the table and you will be fine (whether or not it is in your current position).
9. You got to believe. If you don't, no one else will. That cannot be overstated.  

Big Challenges Ahead:

1. Translating talk to tasks. We have talked a lot this first year, but it has only been the last couple months we translated any of that to actual tasks that we are working on. The time for talking is not over, we are still going to need to do plenty of that, but tasks need to take a much larger percentage of our time. 
2. New value models. For a big reform to work, it will have to change the economic system at some point. This includes both the economic systems surrounding money itself, as well as the value systems placed on people and their work. For us at the COE, we need to change not just the monetary economic model, but also the tenure and promotion model. Yeah, that is a doozy alright, but this canot be done without it. 
3. More people. In year #1 I would say the P20 organization grew something around 1000%. We went from about 2 people dedicated to this project to now a little over 20, with several of those being full time. To work, we are going to need to see that kind of growth rate continue for the next couple years, but the problem with percentages is that the higher the number, the harder it is to sustain similar levels of growth. As in, the only way to sustain such growth is for the new people to bring in new people. While I and a few others worked hard this first year to get that kind of percent increase, a centralized recruitment effort is simply not feasible going forward. We must find a way to decentralize this effort. 
4. Putting tech. to work. To accomplish some of these big challenges, technology is going to have to do some of the heavy lifting. This is education, we can't simply pay our way to change. So, we are investing heavily in tech. development in the hope that we can compensate for some of those resource shortages with our technology tools. 
5. Buying time. Promises have been made, partners have been wooed, and the expectations have been set. We can fulfill a lot of those promises and reach a lot of those expectations, but now we need some time. We are going to have to keep people interested while working feverishly on deliverables. But, it will take some time, so one big task is to get the time we need from as many parties as possible. We have a couple of small victories that should hit in the next month or two, but the big victories are still at least a year or two away. 
6. Patience and Dedication. That's the critical combo, in my opinion. It is easy to say, but very tough to execute. There are going to be plenty of distractions and plenty of opportunities for frustration. We have to keep our eye on the ball. 

I am sure there are a host of other tips and challenges I could have addressed, but those are some that come to mind. This kind of statewide reform work is hard work, but I am convinced it is possible - and, I am also convinced that the time is right to try. I'm tired of talking about the need for reform - I feel it is my generation's task to actually do it ... or, frankly, die trying. I'm willing to lead on this ... will you join me? 

A P20 Presentation to KASA with Dean Mary John O'Hair

Dean O'Hair and I presented on P20 to the Kentucky Association of School Administrators last Thursday at the Galt House in Louisville. As always, I recorded it for later viewing and, remember, you can subscribe to all my lectures on my iTunes channel. 

Educational Law Information Online - A Presentation to KSBA

Last week I presented to the Kentucky School Board's Association, Council of School Attorney's here in Lexington. I was asked to present on online resources for both educational attorneys and administrators. Below is the presentation that I gave (rerecorded after the session because of technical difficulties). It contains some research Kevin Brady and I did on educational law research as well as my take on how the information revolution is changing how legal information is distributed, focusing especially on what Google Scholar's new inclusion of legal information might mean. The materials and links I used in the presentation are below the video. Enjoy: 

Major Sites for Ed. Law Information

CSBA Summer 2010

(You have permission to share & add content at this location - http://bit.ly/avjQIq)

Introductory Story
Did you know? - http://www.youtube.com/watch?v=pMcfrLYDm2U

Cite for Legal Spending Statistics
Carl Malamud, Berkman Center Interview - http://cyber.law.harvard.edu/interactive/podcasts/radioberkman144

NSBA Insider Article I Wrote on Study- http://www.nsba.org/MainMenu/SchoolBoardPolicies/Newsletters/Insider-May-09.aspx

Primary Sources

Public.Resource.Org - http://public.resource.org/index.html
Bulk.Resource.Org - http://bulk.resource.org/

Google Scholar (check legal) - http://scholar.google.com/

Government Resources:
GPO Access - http://www.gpoaccess.gov/
Thomas - http://thomas.loc.gov/
USA.gov - http://www.usa.gov/
Data.gov - http://www.data.gov/
Kentucky Primary Legislative Sources: http://www.lrc.ky.gov/

 
Sample University Sites:
Legal Information Institiute - http://www.law.cornell.edu/
Oyez - http://www.oyez.org/

Corporate Freemuim Sites:
Findlaw - http://www.findlaw.com/
LexisOne - http://law.lexisnexis.com/webcenters/lexisone/
Public Library of Law - http://www.plol.org/Pages/Search.aspx

Secondary Sources
USC Open Law Journal Index - http://lawweb.usc.edu/library/resources/journals.cfm
Missouri School Law Index - http://dese.mo.gov/schoollaw/
Education Commission of the States Issues Pages - http://www.ecs.org/
Law.com Dictionary - http://dictionary.law.com/
NSBA School Law -  http://www.nsba.org/schoollaw
NSBA Legal Clips - http://legalclips.nsba.org/

Lexis Education Law Wiki - http://wiki.lexisnexis.com/academic/index.php?title=Education_Law

Wikipedia - http://www.wikipedia.org/
Special Education Law Facebook Page - http://www.facebook.com/?ref=logo#!/group.php?gid=44730632067
Education Law Association Facebook Page - http://www.facebook.com/?ref=logo#!/group.php?gid=177576668640
This Week in Law Podcast - http://twit.tv/twil
LawBox iPhone/iPad App - http://www.thelawbox.com/

Blogs

Justia Education Law Blog Directory - http://blawgsearch.justia.com/category.aspx?catid=1889

ABA Blawg Directory - http://www.abajournal.com/blawgs/education+law  

• Ed. Law Blogs
  • School Law Blog - http://blogs.edweek.org/edweek/school_law/
  • The Edjurist - http://www.edjurist.com/
  • Adjunct Law Prof - http://lawprofessors.typepad.com/adjunctprofs/
  • ABA Journal - http://www.abajournal.com/topics/education+law
  • Sch. & Ed. Law Blog - http://schoolandeducationlaw.blogspot.com/

• Spec. Ed. Law Blogs

• • Fape Page - http://fapepage.blogspot.com/
  • Spec. Ed. Law Blog - http://specialedlaw.blogs.com/
  • Special Ed. Law Blog - http://specialeducationlawblog.blogspot.com/
  • Wrightslaw Way - http://www.wrightslaw.com/blog/
  • Dev. in Spec. Ed. Law - http://jeffmarcus-specialedlaw.blogspot.com/

• State Ed. Law Blogs
  • Conn. Ed. Law Blog - http://www.connecticuteducationlawblog.com/
  • Sch. & Ed. Law Blog (NY) - http://schoolandeducationlaw.blogspot.com/
  • NJ Ed. Law Blog - http://www.jerseyeducationlaw.com/
  • Educ. Law (Penn) - http://educationlaw.foxrothschild.com/
  • Texas Teacher Law - http://teacherlaw.blogspot.com/
  • L. Dig. Law Dawg (TX) - http://ldlawdawg.blogspot.com/

• Related Blogs
  • Educational Insanity - http://edinsanity.com/
  • Board Buzz - http://boardbuzz.nsba.org/
  • Title IX Blog - http://title-ix.blogspot.com/
  • Religion Clause - http://religionclause.blogspot.com/
  • CRP Integration Report - http://theintegrationreport.wordpress.com/
  • Public Sector L. Blog - http://publicsectorlaw.wordpress.com/

Education Law Relevant Twitter Feeds
Justin Bathon - http://twitter.com/edjurist
Kentucky School Boards Ass’n - http://twitter.com/ksbanews
Rich Haglund - http://twitter.com/richhag
The Access Network - http://twitter.com/schoolfunding
Brian Jason Ford - http://twitter.com/BrianJasonFord
Jonathan Becker - http://twitter.com/jonbecker
Scott McLeod - http://twitter.com/mcleod
David S. Doty - http://twitter.com/canyonsdave
Jim Gerl - http://twitter.com/jimgerl
Legal Clips Staff - http://twitter.com/legalclips
Education Law Ass'n - http://twitter.com/ELAOffice

Value-Added Evaluation and Dismissal of Teachers: Two Cents from an Employment Lawyer

Both our Justin and the very justifiably well-respected school finance economist Bruce Baker have weighed in from different, and equally enlightening, perspectives as to the legal problems (read: certain lawsuits) that would result from instituting systemic value-added assessment-based teacher dismissals and demotions (including de-tenuring tenured teachers).  Here, I add my two cents as a former (defense) litigator of these very sorts of issues in Florida. 

First, I wholeheartedly agree with both Justin and Bruce that a flood of lawsuits is certain to occur (one roughly the same size as the flood of dismissals and demotions that occur).  Simply put, if you fire people, and they think their firings were unfair, then you are going to be sued.  Period.  In fact, I think that these lawsuits will assert not only claims under the Due Process Clause and Title VII, as Justin and Bruce explain, but also under ordinary state contract law, and possibly in some states (including Kentucky), claims under state constitutional provisions forbidding "arbitrary" governmental action.  This certainty of a litigation explosion alone ought to give policy makers pause when they consider their "blame the victim" strategies for improving teaching.  In fact, if I were general counsel of a school district, I would advise the administrators to run.  Run fast, away from this.  However, assuming that district political officials ignore their general counsels (which they sometimes do), would such suits ultimately succeed?  It may be surprising, but except for the rare "unconstitutional arbitrariness" claim that might succeed in a state such as Kentucky, I'm not so optimistic for the plaintiffs.  Here's why:

As to any contract-based claims, these would likely just be throw-aways to add to the complaint.  Any decently represented district will cover value-added demotion and dismissal as an explicit term of the teacher contact (dealing with the union on this brings up a whole separate issue, of course).

As to the Due Process claims, Bruce makes some very forceful and valid points regarding the validity of the value-added model of assessing teacher performance, and he is, of course, the expert on that topic.  However, a claim for wrongful termination in violation of the Due Process Clause is a claim of denial of legal procedures--nothing more.  The "property interest" in one's teaching job is simply a threshold showing that has to be made before one can even begin to argue that the proper procedures were denied.  Under well-settled precedent, a school district complies with the Due Process Clause as long as it offers teachers (1) sufficient notice of impending termination or demotion; and (2) an opportunity to be heard (usually in a hearing before the Board or its designate).  Typically, districts also provide a right to counsel and a rudimentary appellate system.  Now, the flaws that Bruce identifies would of course be relevant to such a proceeding, but if the decision were to stand after several layers of hearings in spite of such statistical evidence, then the teacher would be left with a very weak due process claim, regardless of the decision's substantive correctness as a matter of measurement. 

As to the disparate impact claim, although I agree with much of Justin's analysis, I must disagree with the claim that school districts would have a hard time showing their policies to be neutral.  The neutrality that matters in these cases is facial neutrality, and there is nothing race-based on the face of any such policies.  Any race-based effects must be proven statistically.  That being said, both Justin and Bruce are surely correct that substantial statistical disparities would result from the use of such measures, and these disparities would be largely based on race. 

However, to survive a disparate impact claim (i.e., to win at summary judgment), the district would only have to show that the value-added measures were (1) job-related; and (2) consistent with business necessity.  The first element would be a no-brainer.  However flawed, a measurement of student learning gains is clearly related to the job of being a teacher.  The second element would be somewhat problematic for districts if an expert witness were prepared to offer Bruce's methodological critiques.  However, even these critiques concede that some useful, effectiveness-related information can be gleaned from such measures, and in such a case, the court will only be concerned with whether the district was ever presented with a race-neutral alternative that was just as effective at accomplishing the employment-based objective, but was rejected or not considered by the district.  Do such equally effective, race-neutral measures of teacher effectiveness exist (I honestly do not know)?  If not, then the district would at least have a decent chance of successfully defending its use of value-added, despite its flaws. 

Again, none of this means that there would be no lawsuits.  Every fired or demoted employee who perceives the sanction to be unfair sues.  However, a few high-profile federal circuit court decisions could douse a litigation explosion pretty quickly.