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.

Education (again) is the Flashpoint

For some reason, this is our curse. We are the flashpoint for many, many important national confrontations. 

The most notable is Brown v. Board, but through the years education has consistently bore the burden of these national confrontations. Evolution (Scopes & Kitzmiller), government regulation of speech (Tinker & Pickering), Affirmative Action (Bakke, Grutter, etc.), the Pledge of Allegiance (Newdow), Disabilities (IDEA), Poverty (Title I) and on and on. 

It now seems we are tasked with this role once again. This time it is increasingly looking as though the national debate between the Obama movement and the Teaparty movement might center on schools. In his recent budget release, President Obama called for increased federal spending on education. In their response, the U.S. House (pressured by the Teaparty movement) called for 5 billion in cuts. As Education Week reported: 

“We’re clearly headed to some kind of showdown,” said Joel Packer, a veteran education lobbyist who now works for the Washington-based Raben Group, where he represents the Committee for Education Funding, a lobbying coalition. The Obama administration’s fiscal year 2012 spending plan seeks to raise funding for the U.S. Department of Education by more than 4 percent, he noted.

“House Republicans and the administration are moving in exact opposite directions. These are not just minor differences,” Mr. Packer said. “They’re radically different visions of what the federal role in education should be.”

I pray that this fight does not put education in the middle. The initial fight seemed to center around healthcare, but on that front the Obama administration has already won. On education, the movements are currently on equal footing. And so, once again, it is increasingly looking as if education will be the flashpoint. 

It is quite the burden to ask our children to bear, but, as before, I'm sure they will prove their shoulders are broad enough to facilitate our future. However, we adults should know better than to ask our children to pay this price for us. Let us fight over Social Security. Let us fight over healthcare. Let us fight over taxes. Let us fight over defense. Let us fight between ourselves. But, history tells us ... we won't. It is our children's burden to bear. God forgive us. 

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. 

Translating University Technology into Cold Hard Cash - A Good Idea?

The Post-Dispatch had a great story today on how universities are increasingly commercializing the technological developments of their researchers. They do so largely through patenting and licensing. This activity, especially in the medical world, can generate substantial amounts of money. According to the Association of University Technology Managers (with 3500 members), this specific licensing activity adds up to around 2 billion dollars each year.

Two billion may sound like a lot of money, but it is isn't, actually. It is just scratching the surface of what universities spend on research. This concept of university licensing of developed technologies is a relatively new one. Universities were first granted this power only 30 years ago and really only begun to use it in the last decade or so. In fact, from my experience with the patent office here at UK, my university is only really patenting (and thus seeking licensing fees) from the really big projects. A potential return analysis is conducted and if the return looks less than a few hundred thousand dollars or so (minimally), the university doesn't even bother with the patent.

What I am saying is, that 2 billion is only catching the upper end of the curve and missing nearly all of the long tail. For instance, I would venture that very, very few innovations from Colleges of Education are being patented, even though new commercial innovations are being generated. Those innovations are either privatized by the researcher (making private profit), or just released to the public for free. For example, (I'm not going to release details of the innovations we are working on at UK, as they are not yet market ready) this researcher at Indiana University's College of Ed. developed this product, but just turned it into a private corporation and pocketed the money.

So, what do we think of all this? Can the traditional service concept of universities co-exist with the concept of commercialization? The very kind of big picture, big impact innovations that could change a state like Kentucky are the ones being put behind the patent wall and only those with existing cash get to play. Seems a bit counter-intuitive. But, on the other hand, as Legislatures continue to reduce university funding, these types of revenue streams keep the innovations coming.

I'm very mixed on all of this, but these commercialization concepts are very rapidly invading my and other university researchers lives. And, my P-12 readers, your next.    

"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. 

Should State Boards of Education Issue Guidelines?

Today, the Virginia School Board is considering adopting a set of guidelines on teacher electronic communication. The "guidelines" cover everything from texting to online gaming ... basically, they say teachers can never talk to students using electronic communication. If they do, for an emergency or whatever, they need to report it to their supervisor the next day. 

Obviously, I am going to hate the merits of this set of guidelines. They are simplistically stupid - as in this is an attempt to apply simple rules to complex situations - in addition to just making me think the board members are a bit simple-minded.

But, outside of the merits, these sort of guideline prescriptions of model policy have always bothered me. State Boards are regulatory agencies tasked with passing administrative law extending legislatively created statutes. So, I don't see this in the job description.

It winds up being, of course, a policy back door. You can get schools to do what you want without having to go to the trouble or burden of passing regulations. And, then, just like the Federal government, you say that schools have a choice, even if it is a politically or financially unrealistic choice.

It's coercion, simple as that. Is that what we want from our democratic systems? Are both legislatures and schools so screwed up that state agencies are forced to intervene with coercive, legally-questionable model policies because neither can accomplish the correct outcome (questionable anyway) through traditional legal means?      

Louisiana's Constitution and Education Reform

I have posted before about education reform in New Orleans since Hurricane Katrina.  In my most recent entry, I mentioned two law review issues that focus on the education law issues in the New Orleans reforms.  I just posted my contribution to one of these issues on SSRN.  My contribution addresses the unique education provisions of the Louisiana Constitution from the perspective of those thinking about state constitutional design, using New Orleans in part as a mini-case study.  You can download the full-text draft free of charge here.  The abstract appears below:

State Constitutional Design and Education Reform: Process Specification in Louisiana

In this article, I examine the role of state constitutional design in shaping the challenges of educational reform and the enforcement of affirmative state constitutional duties. I begin with a brief discussion of state constitutional design in general, and I expand this discussion to include the specific drafting approaches used in promulgating state constitutional education duties. I continue from this point with a review of how these provisions have been used in school finance litigation – the principal vehicle for enforcing education rights in the states – and how they have been modified in response to such litigation.

Following this analysis, I engage in a limited case study of constitutional design in Louisiana. I begin by outlining the education provisions in Louisiana’s current state constitution. I review both the drafting strategies used in the initial education article, and the unsuccessful school finance litigation that gave rise to the most prominent recent changes to the education article. I conclude that Louisiana’s reformers have chosen a decidedly unique, process-oriented path in amending Louisiana’s education article, as compared with reformers in other states, who have attempted substance-based reforms to their states’ education provisions.

Based on this case study, I present both general and situational arguments in support of the specification of process-based limitations as a strategy appropriate for drafting or amending state constitutional education articles and other affirmative-duty provisions. I base the general argument on the unique features of state constitutions and state governments, which leave courts well-positioned for review of legislative processes in pursuing affirmative constitutional duties. I present the situational argument in light of the current funding realities in the New Orleans school system. I argue that the specific, process-based limitations in the Louisiana Constitution could prove very useful in the coming years as federal relief funding largely disappears, and Louisiana is left to fund the state’s schools based mostly on state-derived revenues. Based on these arguments, I conclude with the suggestion that those drafting and amending state constitutions containing affirmative legislative duties should consider specific, process-based limitations as a useful element of state constitutional design.

Value Added Evaluation Data and FOIA (State Versions, That Is)

Bruce Baker and Andy Rotherham brought my attention today to the issue of the public release of school data used in value-added teacher assessments (which are becoming popular, spurred by Race to the Top- Scott and my previous posts on the subject). This stems from a report out of New York today that the New York City Schools are set to release this value added data on 12,000 teachers ... tomorrow.

First, the basics. Public schools are public ... meaning taxpayer owned. Generally, then, the taxpayer owners (meaning the general public) have access to all the information produced and stored by these entities. In a democracy such a concept would make sense, right? Well, except when we are planning to bomb another country or when we are surveilling a criminal or when ... well, you get the idea, there are lots of exceptions. One other important point before we begin is that there is a federal Freedom of Information Act, but for this analysis we are concerned with state laws, as schools are state entities and school personnel are state employees. Here is a nice starting point for your state to get the basics.  

The exception at issue today is that of personnel information. They cover the gamut from very restrictive to very broad to non-existent. Let's start with Wyoming's quite broad protection against release of personnel records (Wyoming Statutes 16-4-201):

(iii) Personnel files except those files shall be available to the duly elected and appointed officials who supervise the work of the person in interest. Applications, performance ratings and scholastic achievement data shall be available only to the person in interest and to the duly elected and appointed officials who supervise his work.

Then there are some provisions in the middle. For instance, here's Delaware's relevant provision (Del. Code Ann. 29 - 10002): 

(1) Any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy; ...

Arkansas is another similar to Delaware. But, other states are more restrictive in their provisions. Take Georgia, for instance (50-18-72):

(5) Records that consist of confidential evaluations submitted to, or examinations prepared by, a governmental agency and prepared in connection with the appointment or hiring of a public officer or employee; and records consisting of material obtained in investigations related to the suspension, firing, or investigation of complaints against public officers or employees until ten days after the same has been presented to the agency or an officer for action or the investigation is otherwise concluded or terminated, provided that this paragraph shall not be interpreted to make such investigatory records privileged.

Other states, such as Illinois recently, considered adding such an exemption for public employees to their Open Records Acts. This story out of Illinois puts the number of states with some type of personnel evaluation exemption at around 35 - and without better data or time to investigate it myself, we'll go with that - meaning that perhaps 10-15 states may have no exemption at all for such records. 

Thus, even without considering the issue of value added data sets, in some states there is not even an opportunity to argue that such evaluation data is exempt. Therefore, before any teacher (or more likely union) argues that such data cannot be released they need to be familiar with their state's law governing open record exemptions.

Now, turning to the issue of whether raw value-added assessment data is exempt from public record laws let's consider a few different options.

Option 1: raw data contains information capable of linking to particular students = FERPA protects against release. But, putting FERPA aside ...

Option 2: raw data does not contain link to identifiable teachers (or students) = Grant open records request as no exemptions are likely to apply.

Option 3: raw data does contain link to identifiable teacher = probably release. Obviously this looks like the New York situation and the one Bruce and Andy were highlighting. However, the data is not an evaluation, it is simply raw data. That it affects an employee's future evaluation criteria is probably not relevant if the open records request is only for raw data. Obviously this is going to be the case most dependent on the statutory language. For instance Wyoming's inclusion of "scholastic achievement data" seems a good bet to open the door for exemption even of the raw data. Delaware's "relates to personal privacy" is a crack, but a small one and one I don't think most courts would extend such a amorphous concept to this extent. Georgia, Illinois and other states, though, would have no legal avenue available to block release. At best, the teacher or union might be capable of delaying the release. Given the fast-paced news cycles, though, and the lack of persistence among researchers, delaying the release even a few weeks might be good enough. 

Option 4: post-analysis, teacher-specific data leading to evaluation ratings = probably protect. This is where the easiest case is made to exempt the records, but still not in all states. If you are in a state with a personnel records protection provision, the evaluation analysis of the data is probably protected as I think most rational people consider job performance ratings to be personal in nature. This protection is not trivial, however, as working with the raw data is not a simple task and puts a much larger burden on journalists, researchers or other individuals requesting access. Obviously it is just much easier for them to publish the school's analysis and evaluation of the teacher. So, still not totally protected in this instance, but the easiest legal case to make as the statutes seem to imply, if not explicitly state, that such evaluations are protected. 

Option 5: I think it is possible to visualize a hybrid between Option 3 & 4 - or perhaps several (help me out Bruce as you know the data better than I do). The analysis of the value-added raw data would likely involve several steps, each of which would get us closer to protection as the data goes from unaggregated to aggregated to compared against previous years to compared against similar classes to graphed to assigned a rating code to translated to an evaluation statement. Where along that line of analysis protection begins ... well, that's the kind of question that takes decades of litigation. Each specific instance will be different, meaning there could be minimally 50 and potentially thousands of different scenarios possible as individual districts begin rolling out value-added systems.  

Okay, getting back on track then, this explains the New York story, for now anyway. New York has a mid-to-narrow exemption (see Section 87(2)) putting it somewhere between Delaware and Georgia (if I'm missing something, New York readers, let me know). Thus, as New York City's attorneys have concluded, the likely position is that the raw data should probably be released.

That's not the end of the story, though, for the union. Their next play, in the absence of a protective statute or regulation, is to attack the raw data as unreliable and thus (1) lacking a rational basis, (2) a violation of due process, (3) unconstitutionally vague, (4) discriminatory or some such effort. Remember, though, this is not an open records issue, it is attacking the facial validity of the entire value-added evaluation system (read the posts that Scott, Bruce, & myself wrote before). As Scott explained these efforts rarely win, but I kept the door slightly open if there is overwhelming evidence of statistical error. This is going to be an uphill battle, however, because the overriding public policy at play here dictates open government over privacy. That the rationale behind open government statutes is so clearly stated and privacy law is such a legal morass is not going to help this situation either.

Anyway, summarizing, I think the raw data is generally going to be made publicly open following FOIA requests. I think New York City is currently correct in their assessment that no exemption exists under New York's Freedom of Information Law. However, this is just my analysis after considering this issue for a single day and I want to caution against over reliance on my initial assumptions. A thorough analysis needs to be conducted of all 50 state policies, interpreting regulations, attorney general opinions, and previous case law. Further, data experts such as Bruce must assist the analysis with a complete understanding of each state's dataset and the possible links to both teachers and their evaluations within the datasets. Thus, there is still a lot of work left to be done. 

This is a legal frontier (another one of those enabled by technology) that most legislatures would not have contemplated as possible in enacting their open records laws. Thus, it is a great topic for us to debate further to inform future policy actions on open records personnel evaluation exemptions.

Year Round Discipline?

Why a we doing this? 

It's dumb and probably not authorized under law. 

Here's the situation. No other branch of government is going to stop a school from expanding their authority in this way. It is just less responsibility on the police, parks, etc. In fact, mayors and other elected officials I am sure love when schools on their own and without funding take on additional responsibility. 

But, the way the law works, once you start taking on additional responsibility, it is very difficult to get rid of it. For instance, several years back, I railed against schools taking on additional responsibility for regulating off-campus speech. But, down the road a bit now, patrolling Facebook and whatnot is now largely seen as a core duty of schools. There was no money for that ... it was just something that schools decided to do on their own (and no one stopped them). And then schools have the gall to talk about not having enough funding to do these things. 

So, again, I'm begging you schools to stay out of this stuff. If the Legislature wanted you to regulate in the summer, they would tell you to and they would pay for it. Otherwise, it is not your problem. I get the arguments that bad behavior might translate into the school year, but that is never going to go away no matter how much you try to regulate. 

Stop it.

Are Athletic Associations Forgetting About Learning?

The UK basketball issue seems resolved, thankfully for us. But, the incident has certainly caused me to question the role of the NCAA. Of course, I'm guessing folks in Tennessee, Florida, North Carolina, Michigan, Southern California, just to name a few high profile programs, are also wondering about such things. The Reggie Bush Heisman issue, the Conference realignment this summer, or any of the other seemingly weekly national news events surrounding the NCAA keep it at the forefront of the national consciousness. 

My main question with the NCAA is, can a billion dollar entity keep students first and money second (at best)? 

Wait, you didn't know about the money? The 6 billion dollar CBS deal? That March Madness generates more revenue than the NFL playoffs, Superbowl included? 

Did you know your state high school athletic association is likely a multi-million dollar enterprise itself? There is so much money that now high school athletic associations are instituting revenue-sharing plans to redistribute the left-over money. 

Why is all this money showing up in the ledgers of non-profits? How much money does it take to assure a level-playing field for the educational benefit of students? Surely less than a 1/2 a billion a year. And, if so, then why does the NCAA continue to receive tax-exempt status? 

Anyone that reads the blog knows my historical unease with, let's say, educationally-sponsored athletics. That winning frequently overtakes learning on the priority list highly concerns me not because winning is bad, but that it should not be public schools that compete in this fashion. We should be looking to maximize learning, not the scoreboard nor the bottom line, so do we use these athletic associations as proxies to do avoid the sticky issues of educational institutions putting learning down the priority list?

So, my question today, and I'm interested in all responses (I've always said I can be convinced otherwise on this), is whether at the college and/or high school athletic association level winning (as defined in $$$) has overtaken student welfare (as defined by learning) as the priority? Let me know. 

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. 

Can policies stop a mobile learning tsunami?

No. They can't. There is no legal floodwall even remotely big enough to stop this one.  

Yet, we keep trying ... and causing ourselves even more policy trouble in the effort because as we are trying to build the wall higher and stronger we are also trying to bail out the water already on the other side. 

Is it time to switch tactics yet? Is it time to go with the flow and help direct the waters in responsible directions? We legal types are the ones that need to let administrators know when it is appropriate to stop trying to plug the dam. That is our responsibility as their advisors. 

Meanwhile, the kids are waiting for us ...

For my non-legal readers ... don't be scared to send this kind of stuff to your principal or even to your school district attorney. Especially the lawyers need to start hearing this message. 

h/t Free Tech for Teachers + Wes Fryer's Speed of Creativity

-- By the way, in the vid. above, what kind of principal puts a picture of a bear behind their desk? Talk about the wrong message for kids ... this guy's got it all wrong. 

Picky, Picky, Picky ... Really?

So, guess you heard New Jersey missed out on Race to the Top because they didn't follow the directions properly? The Gothamist (a site I sort of like) has a good overview and the Star-Ledger has the actual reviews. Had New Jersey provided the right budget years, they may have received an additional 4+ points in their application. It turns out that they missed the last funded slot by ... 3 points - a potential 400 million dollar error. 

So, my question is why be so picky. Yes, it was a dumb (or ill-conceived) move by New Jersey's Department folks, but why punish the kids in New Jersey over a technicality? There is probably more to the story, but I think it is indicative of a larger point worth considering through this Race to the Top process.

The Fed. was just flat too picky. Normally, being picky and accountable is a good thing, so I hate to complain about it, but I do think in this instance the DOE was too rule-bound in granting the points to grant the awards.

The whole concept of awarding "points" for different components in a state plan struck me is childish. This is not a math test. Nor was this a research grant. There are no necessarily right or wrong answers in educational innovation. Even charters (which wound up doing us in here in Kentucky) have not been proven to be a right answer. So, when we here in Kentucky say we have a waivers system or other charter-like concepts ... there was no credit even though for all we know our answer was just as right as any other answer on this concept.

Lines have to be drawn somewhere and due process demands procedures be established, so I understand the argument for the process they established. But, nothing required them to be so picky in assigning the points. The pickiness wound up being a punishment for many children in the US. 

Update: Now, some speculation that one particular judge scored some proposals low and it may have impacted some states. For instance: 

Further review of KY RTTT scores today shows combination of 0 points on charter and low scoring judge impacted rank. Similar issue for COless than a minute ago via webTerry Holliday
kycommissioner

 

P.S. - Yes, some of this post is a result of sour-grapes ... I'll admit it. [Grumble, grumble] But, there is a legitimate point in there somewhere, I hope. 

Missing RttT: A Pep Talk Revisited

So, now that Kentucky has officially been shut-out of the Race-to-the-Top competition (very disappointing day) I think it is a good time to revisit a post that I wrote months ago now at the beginning of all this RttT madness. So, without any changes or additions here is exactly what I said months ago ... and the message I want to deliver again today: 

1. Don't forget we are living in extraordinary times when the cost of innovation has never been lower. It is easier to collaborate and disseminate now, than at any time in recorded history - meaning the price of the tools that you need to make change in your states is probably close to zero. The cost of the announcement above? Zero. Keep that in mind. 
2. Many of the changes we need in schools, don't cost a lot. It doesn't cost much to let teachers be more creative. It doesn't cost much to let students use their cell phones as learning tools. It doesn't cost much to get your classroom content in the kids home via Moodle. It doesn't cost much to personalize learning for kids. We think these things cost a lot and they do, but those costs are not monetary costs, they are time and effort costs. And, while I wish we could pay our teachers more too, most teachers are wonderful human beings who would put in that time and effort if our leaders help them in doing so.   
3. Make your own resources (money, time, & effort)! You need $500 for some new software? Ask your parents. Ask your local grocery store. Hell, ask us at universities! But, when you are asking them, don't just ask and walk away. Involve these people! Let them help run it. Let them talk to the kids. It's amazing how much people are willing to help if you involve them as collaborators (reference point #1). Oftentimes, they don't even want to put their name on it, they just want to feel like they are making a difference.    
4. Be a leader. I'm convinced the problem in most states is that there are truly not enough real leaders. The kind that understand where real value lies (which is almost always not in the bottom line). If your reading this blog, you know something about technology. That's probably at least 50% more than most of our educators out there. Start with that. Start by organizing a few fellow teachers or principals and talking about whether or not a blog could be useful in a classroom. And, let it roll from there. Step up to the plate people. We need you. And for the love of God, please don't be afraid to fail.     
5. Help your departments try again. I'm one of those wacky people out there that actually like state departments of education. I worked with them my whole career and those people are good people. But, they function in very tight political spaces. They are almost always overworked. Almost always overwhelmed. So, they need help. Not in terms of writing the document (although they always welcome edits), but they need ideas. They need projects. They need people that can step up and lead a state effort. They need people that can help get the signatures from all the districts in the state. And parents groups. And teacher groups. And business groups. That's just a heck of a lot of work, and they need help. So, want more money for your state? Go help get it yourself. 
6. Just do it. Just freaking go do it. Got an idea? Just do it. You don't need approval. You don't need authorization. You don't need money. You don't need a policy written (remember, that's coming from a lawyer). Find a way. There is always a way. Yes, maybe you have to sit in a board meeting and explain your plan. Yes, maybe some won't like it. Who cares? Who freaking cares? I tell people around here I don't care about tenure. They look at me funny and think I don't mean it. But, I do. I do not want to spend my life worrying about bureaucracy. I'm going to spend it doing what I love to do, whether or not that meshes with my institution matters little to me as there are a lot of institutions and not a lot of people who do what I do. If you are bringing value to the table, there will always be a demand for you. So, your focus should be on bringing value to the table, not on pleasing your institution. In other words, just freaking do it. The rest will take care of itself.   

So, that's it. That's my pep talk. It was a rough day for education in at least 1/2 the states today, but there is always opportunity in adversity. If it winds up that missing out on Race to the Top causes even a few of you in your state to finally decide to lay it totally on the line and go after the change you visualize, then the better result was missing it. It's not about the money, it's about the kids. And, with all the technology and tools in today's world, it's easier than ever to help them. 

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.  

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. 

Legal Issues with Test Score Based Teacher Evaluation: A Response to Bruce Baker

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.

Just how stupid ...

Reading a ton of cases this weekend (finishing up a Yearbook chapter that is overdue) and I am once again struck by a simple question ... as a teacher, just how stupid do you have to be to lose a lawsuit? And, I think, the answer is pretty damn stupid. It is amazing to me how many mildly stupid things the courts allow teachers to get away with. Between immunity statutes, the high Section 1983 bar, actual knowledge provisions for harassment, the lower search and seizure standard, etc., the simple fact is that the law is heavily construed in favor of the school and school employees. And, even then, in cases where it is the word of the teacher v. the word of the student ... typically the teacher wins. So, not only do you have to do something really dumb to even qualify as doing something illegal, but then there usually has to be a good deal of evidence to find for the student (as in, you can't even cover it up well). 

So, seriously, it takes a really stupid act followed by a really stupid cover up on the part of a teacher to even make it to court.

Yet, in case after case, I am shocked by the ignorance of some teachers. Now, the worst of the worst make it into caselaw, so I am seeing the worst teachers in the America over the past few days. But, literally in the last year there were about 2 dozen federal cases dealing just with teacher sexual abuse of students, teachers taking searches way too far, teachers letting a student who had passed out from dehydration lay on the football field while they held a team meeting, teachers hitting kids, paddling for missing shots in a basketball game, a teacher playing on his computer while a student is forcibly undressed in front of a crowd in the classroom. And, this is just a smattering because it is only what is reported, the actual number is far, far higher. 

So, seriously, what the hell is going on?   

I have always defended the American teacher, been kind to teachers' unions, and generally given the benefit of the doubt. I was a teacher, so I know how it goes sometimes. But, can we all agree there is some kind of systemic problem in the teaching system that these kinds of horridly idiotic incidents continue to occur year after year after year? Something is broken. Pedophiles must be being attracted to teaching. The teacher dismissal process must be encouraging misbehavior. Professional standards boards must be woefully inadequate. Colleges of Education must be totally missing the boat in screening these folks. Maybe all of these things, but, something, clearly, is wrong. 

We cannot continue to permit these flatly ignorant humans to enter the teaching force.  

This Space for Sale - Captive Audience Included

Today there is an AP story out about advertising on school buses to help schools make up budget deficits. 

Washington lawmakers considered the idea of school bus advertising this year, and the concept is also being tossed around in Ohio, New Jersey and Utah. About half a dozen states already allow bus advertising — including Colorado, Arizona, Florida, Minnesota, Tennessee and Texas.

I'll keep this simple - this is gross and we need to avoid it. The commercialization of schools has always been a slippery slope that we must be vigilant against. The captive, impressionable audience that schools offer is so tantalizing to capital driven business interests that if we give them an inch, they'll take a foot or more.

I don't blame the superintendents that have utilized this method to get more revenue, but state departments or legislatures that authorize this type of activity are highly suspect. Superintendents will always push the envelope of entrepreneurship - but state offices must be responsible for the bounds of acceptability and ensure that we are treating our impressionable youth with caution - lest capitalism commoditize our kids on the government's watch. 

So you missed RttT? A Pep Talk

So, just announced minutes ago were the finalists for Race to the Top (announced on Twitter by @EdPressSec). Here's Arne:

So, Kentucky (surprisingly I think) is in. I started writing this post 1/2 hour before the announcement thinking Kentucky would be out and I would need to sooth some feelings around here. But, while I am happy Kentucky is still in the running, I do still want to sooth the feelings of folks in the other states that applied and missed. So, here we go:  

1. Don't forget we are living in extraordinary times when the cost of innovation has never been lower. It is easier to collaborate and disseminate now, than at any time in recorded history - meaning the price of the tools that you need to make change in your states is probably close to zero. The cost of the announcement above? Zero. Keep that in mind. 
2. Many of the changes we need in schools, don't cost a lot. It doesn't cost much to let teachers be more creative. It doesn't cost much to let students use their cell phones as learning tools. It doesn't cost much to get your classroom content in the kids home via Moodle. It doesn't cost much to personalize learning for kids. We think these things cost a lot and they do, but those costs are not monetary costs, they are time and effort costs. And, while I wish we could pay our teachers more too, most teachers are wonderful human beings who would put in that time and effort if our leaders help them in doing so.   
3. Make your own resources (money, time, & effort)! You need $500 for some new software? Ask your parents. Ask your local grocery store. Hell, ask us at universities! But, when you are asking them, don't just ask and walk away. Involve these people! Let them help run it. Let them talk to the kids. It's amazing how much people are willing to help if you involve them as collaborators (reference point #1). Oftentimes, they don't even want to put their name on it, they just want to feel like they are making a difference.    
4. Be a leader. I'm convinced the problem in most states is that there are truly not enough real leaders. The kind that understand where real value lies (which is almost always not in the bottom line). If your reading this blog, you know something about technology. That's probably at least 50% more than most of our educators out there. Start with that. Start by organizing a few fellow teachers or principals and talking about whether or not a blog could be useful in a classroom. And, let it roll from there. Step up to the plate people. We need you. And for the love of God, please don't be afraid to fail.     
5. Help your departments try again. I'm one of those wacky people out there that actually like state departments of education. I worked with them my whole career and those people are good people. But, they function in very tight political spaces. They are almost always overworked. Almost always overwhelmed. So, they need help. Not in terms of writing the document (although they always welcome edits), but they need ideas. They need projects. They need people that can step up and lead a state effort. They need people that can help get the signatures from all the districts in the state. And parents groups. And teacher groups. And business groups. That's just a heck of a lot of work, and they need help. So, want more money for your state? Go help get it yourself. 
6. Just do it. Just freaking go do it. Got an idea? Just do it. You don't need approval. You don't need authorization. You don't need money. You don't need a policy written (remember, that's coming from a lawyer). Find a way. There is always a way. Yes, maybe you have to sit in a board meeting and explain your plan. Yes, maybe some won't like it. Who cares? Who freaking cares? I tell people around here I don't care about tenure. They look at me funny and think I don't mean it. But, I do. I do not want to spend my life worrying about bureaucracy. I'm going to spend it doing what I love to do, whether or not that meshes with my institution matters little to me as there are a lot of institutions and not a lot of people who do what I do. If you are bringing value to the table, there will always be a demand for you. So, your focus should be on bringing value to the table, not on pleasing your institution. In other words, just freaking do it. The rest will take care of itself.   

So, that's it. That's my pep talk. It was a rough day for education in at least 1/2 the states today, but there is always opportunity in adversity. If it winds up that missing out on Race to the Top causes even a few of you in your state to finally decide to lay it totally on the line and go after the change you visualize, then the better result was missing it. It's not about the money, it's about the kids. And, with all the technology and tools in today's world, it's easier than ever to help them.