Would Teachers Read the Law If It Was Available?

Listened to a great podcast from the Berkman Center on open access law. Specifically, it was an interview with Carl Malamud, of public.resource.org fame, on his and other efforts to open up the law. They have a series of upcoming discussions at the nation's top law schools to work on this issue and he will be addressing Congress on the issue in the near future. 

Anyway, one of the main points Carl gave for people opposing open access efforts on the part of the government is that the public won't read the law anyway, and so it is not worth the cost to the government to put it out there. Better to let private companies (West, Lexis) pick up that cost and then charge a fee only to those people that really need access and thus are willing to pay (collectively over 10 billion dollars annually). Now, technologists like me usually scoff at such suggestions, but in this case I want to pause to give it a bit more thought, and specifically, to see whether you think teachers would use the law (statutes, cases, regulations, board policies, handbooks, 100% of everything) if it were available? And, if they were to read it, how would they use it? 

I personally have very mixed feelings on this having taught teachers and principals how to use the law for the past few years, but I am much more interested in your thoughts. 

Free - Thoughts

So, finished up "Free: The Future of a Radical Price" this weekend. First, it is free in audio, if your like me and increasing addicted to your iPod for learning, try it out. The book was published in 2009 by Hyperion, and Chris Anderson (the editor of Wired Magazine) is the author. 

So many thoughts coming out of this one. To save the suspense, I'll go ahead and rate it 4.8 out of 5. The minor deduction was for the early chapters, which I felt were a bit dry and didn't really hook me in. But, after it got rolling, it really was fabulous and certainly, certainly worth your time. 

Now, like after I finish any book, a plethora of ideas are floating around in my head, so let me try to get a few of them down on ... well, in bits anyway. 

1. Free as a business model: It only works if there is something else with which to make money. But, if there is something else with which to make money, free as a business model almost certainly must be included in any planning. Something these days, should always be free. 

2. Understanding Atoms, Bits, Information, Knowledge and Neurons. There are some critical points in this book related to these topics. Atoms are physical things. Bits are not, mostly. To make an atom there is a cost involved. To make a bit (like this blog post), there really isn't one worth measuring. Information mostly does not need atoms, especially when you take away the paper. In this way, the information contained in bits on the Internet is not all that different than information contained in electrical impulses in neurons. What is different between those two is typically how that information is put together in a way which we may call knowledge. 

The instinctual price of information is zero, or free. Thus, as bits continue to make the production and storage of information easier, the price will continue to fall until it is to small to measure, which we'll consider free. The instinctual price of knowledge, though, might be different or it might not. And, that has some pretty important ramifications when you are in a knowledge industry. 

3. Higher education's business model is wrong. As those of you in Kentucky know, I have been spending a lot of time thinking about the higher education, specifically the college of education, business model lately as we build the Kentucky P20 Innovation Lab. Anyway, even before reading this book I was convinced the business model was wrong, but now I am more certain of why it is wrong. Higher education is pricing what it should be giving away for free: undergraduate education. Higher education's business model is to maintain relationships with some number of students for about 4-6 years. During that time, the University extracts the highest tuition possible and then pats the student on the butt and gives them their piece of paper. Relationship = over (besides maybe rooting for the basketball team). This is a bad business model. Universities would profit much more if they found a way to maintain the relationship with the student throughout their life, building in a pricing structure for the continuous information exchange the University offers. If this were the pricing model, undergraduate education should be free. It is the entry point at which you start the relationship, thus you want the highest number and best quality of relationships possible - free accomplishes that task, especially when everyone else is raising tuition. This initially free pricing structure works better from a number of angles, not the least of which is that the student pays when they have ability to pay, reducing the initial debt load on students and permitting universities to charge higher prices over time. Anyway, there are more points to it, but stop and think about it (let me know your disagreements, if you would please). 

4. Universities are the most well positioned entity to thrive in this economy: As if the previous point didn't cause you to question my sanity, this one will push you even further. I am not going to belabor this explaining all of the details of my thoughts here (this is again something better served in an article when and if I get time), but again this book reinforced an idea I was already quite set on. Universities are unique in that they are governmental, but also entrepreneurial. They can make, and hold, money. They can hold billion dollar endowments and make interest off of them. They can set up corporations. They can run hospitals. They can run golf courses and they can run basketball teams. And sell merchandise for all of it (and even do some advertising within it). All that, though, is just icing. The main point is that they are in the information business and, in a lot of ways, are the world's greatest content producers (yes, even greater than Hollywood and Newspapers now-a-days). Being a respected content producer (like most Research I Universities are) puts them in a very valuable position in an information economy. Also, although Universities are beholden the almighty dollar, they are less so than business. I get paid less than my peers in the legal world, because I value the return on reputation more. Increase my reputation, and you will increase my satisfaction in my position, with or without a raise. In that way, we are not so closely tied to money directly, as I don't value my work by the number on my monthly checks. In an information economy, though, while money may be scarce, reputation is abundant. This blog increases my reputation in both the law and education fields, and thus I publish it for free (even taking a not insubstantial loss on my part in hosting and software fees). This type of transaction, multiplied millions and millions of times, puts universities in a prime position to capitalize - that is, if they can muster a sufficient business model (see previous point).  

5. The future of schools may lie in Universities' ability to understand free: Because of their content production nature, their ability to pay global experts affordable salaries, their ability to be entrepreneurial, their ability to subvert some regulations, their ability to partner with K-12 and other capabilities inherent to both government and business, the future of our schools may be dependent on the University's ability to participate in a meaningful, but cost efficient way. Cost efficient may mean free, or it may mean cheap, but either way it must mean less than what business would charge if given the same task. Undercutting private business is not something that Universities have historically done well, but it is something they have every natural advantage to do if they get out of the industrial model of higher education, and into something a little bit more suitable for the information age. If and when they do, they will be juggernauts because they will control a lot of very high quality content. How they manage to release that content will be key. They need to be able to release it for nearly free, but they also need to find a side business that is profitable. Perhaps a freemium model of some sort. But, if they do figure it out, they can push an enormous amount of high quality content to our K12 students for little cost, this can both strengthen the transitions between high school and college, but more importantly it can free up a lot of teacher time that can be reallocated to personalized learning and activities in local classrooms. 

Anyway, those are just some initial thoughts, but ones I wanted to share. It was a great book. I listened to much of it twice and I can't wait to listen to it again (why not, it's free). 

Ed Schools: Officially Part of the "Problem" Narrative?

Reading my latest edition of Time Magazine this week, there was a story on school turnarounds and the likely components of NCLB. The article was really neither good or bad, but this struck me: 

Of course, the education establishment (i.e., the teachers' unions and ed schools) likes to remind critics that children are not cogs and what works for companies may not necessarily work for schools.

How flippant, that combo of teachers' unions and ed schools. Are we to be demonized the same way as teachers' unions historically have been? Are we now officially part of the "problem" narrative in the media and amongst politicians? I have been noticing an uptick in the blame associated with ed. schools lately and this seems to be just the latest evidence in our eroding respect. 

This is unfortunate. Education schools can be natural allies for change in education, but attacking them in the way teachers' unions have been historically attacked is likely to have an entrenching effect. If you call them the enemy of change ... they might actually become the enemy of change. And even though there are a ton of problems in education schools (anyone that works with me knows how frustrated I can get with some of our arcane rules), folks like me are trying our best to change ourselves at the same time that we help change our schools. I literally lose sleep at night trying to work through all these issues. 

Now, as in the article, are we naturally skeptic of the corporatization of education ... of course. There is no data that shows that Arne Duncan's corporate turnaround efforts in Chicago worked ... and, yes, we actually care about the data. The last administration demanded that we be scientific in our efforts and only commit to changes that show positive outcomes in data ... and we went partially down that path, but now we are being attacked as impediments to rapid, data-deficient change.

I also get that we are somewhat defenseless, and thus easy targets. So, we are going to take some of the heat, rightly so, for the issues in our education system. But, taking heat and being typecast are two totally different things. I'm fine taking heat and working toward change, but I am not fine with being typecast as the evil empire of education.   

State Agencies and the Space for Change

Had the pleasure of filling in this morning at a meeting of the Council on Postsecondary Education in Frankfort. They had invited Curt Bonk down from IU to come talk to the Board and in a follow-up meeting with higher ed. faculty in the state. It was informative and I found myself taking a lot of notes (which is a sure sign that I'm learning something because I usually don't). 

What struck me though as CPE folks were talking, and inviting University folks to chat as well, is that state administrative agencies, such as CPE, are going to quickly be ahead of our universities in the mentality needed to meet the demands of the digital, global age. For instance, Dr. Bonk brought up Open Access Journals, and I suggested this is an area where CPE could become involved by recommending to universities that scholars publish their works in locations where the people of Kentucky can access them (i.e. not your traditional, academic publishing house journals that are only purchased by university libraries). The people of Kentucky paid for that work, they might as well be able to read it, right? Well, CPE seemed on board, the University reps ... not so much. And, therein lies a very difficult problem when the very people the state relies on for change and new ideas, are the ones that are innately resistant to that change. 

This level of innate resistance in universities, especially public universities, has been brought about by years and years of traditions, bureaucracy, and ethics. This innate resistance stops university folks from even considering the arguments in the first place. On the open access issue, for instance, I would challenge anyone to consider the arguments for and against with an open mind and conclude that traditional paper journals were the superior publishing outlet. But, it is not that university folks are stubborn in holding to the wrong side of the argument ... it's that they don't even consider the argument as an argument in the first place. 

Collectively, this is why we need state actors to force us to at least consider the arguments. Consider online teaching. Consider tenure and promotion changes. Consider integrating with K-12. Consider lifelong PD relationships. Consider it all, frankly. Nothing should be off the table in an environment where universities are struggling to survive anyway. And so, while it is necessary for grassroots movements to push universities from the bottom up, we also are going to need a good deal of top down momentum. The fact CPE would even consider bringing in Curt Bonk is encouraging. CPE gathering faculty together is another encouraging sign. So, I'm hopeful. But, I hope they also see the space they are creating within that environment and very carefully consider which voices are included - because the space created by those conversations has a direct correlate with those voices. 

After all, I was at that meeting by accident. I was just filling in for someone else. Had the composition of that room been different, without strong voices creating the space for change, I'm afraid a very different conversation would have ensued. 

Cases about Kids

Colin Firth, who frequently plays a Lawyer on TV, with a "little author of great thoughts." I like them better. Just a small thought, but one that occurred to me tonight as I was reading complex cases about motions to amend, pension system statutory interpretation, student loan interest accrual, the Bankruptcy Code, etc.

Don't get me wrong they are just as important (ok, maybe not the student loan cases) but they are so impersonal, dry and tasteless. Understanding the nuances of the state Administrative Review Act is vitally important to a lawyer's core business model, much more so than understanding student speech. And, that's unfortunate, I think.

It's little wonder that many of us lawyers come to personally reflect the cases we spend our time reading ... impersonal, dry and tasteless. I think it would do us a great service as educational lawyers to make sure that we devote an equal amount of time reading cases about kids.  

Ethics Codes ... It's a concept, it's a law, it's a bird, it's a plane, it's ... Not that Important

Alabama doesn't know what do to with its teacher Code of Ethics. The Legislature doesn't like it, nor does the Unions. The State Board of Education created it and the Governor likes it, and thus today he vetoed a Legislative effort to block the Code of Ethics from entering regulation. 

These Ethics Codes for Educators are peculiar entities. Sometimes they are law, and sometimes they are not. Most states have a code of ethics in some form, but not all states choose to put them into regulation. If they are put in regulation, then they are law, meaning the contents are not really ethics anymore, they are mandates. 

In other fields, such as law and medicine, there is a greater distance between regulation and the ethical standards. The AMA produces the Code of Medical Ethics and the ABA produces the Model Rules of Professional Conduct. Some of this is replicated in state law, but not all of it. Of course, in education there is no AMA/ABA equivalent, so this kind of stuff gets promulgated by state entities instead. I would address business ethics, but then we all know that didn't work out so well. 

So, the question is how much does it matter legally who created the Ethics Code or where it sits? And, I think my answer is not all that much. Let me explain ...

First off, ethics codes tend to be very vague. In fact, that's the Alabama Education Association's chief criticism. But, vague language in law is frequent ... and frequently ignored. It can have negative implications, but they are usually sporadic. 

Second, read the Alabama Educator Code of Ethics - 90 percent of the things they say are wrong are already illegal anyway. So ... what's new?

Third, correspondingly, in my experience these Ethics Codes only really have teeth in extreme circumstances. As in, you lose your job anyway, and you lose your license. In situations where a regulating body is going to seriously consider revoking your license, the person has already probably screwed up their life substantially, including frequently criminal behavior. Knowing the kinds of cases that our local educator regulatory body prosecutes every year, they are usually only in unquestionably inappropriate circumstances that they take any real disciplinary action. Thus, whether the Ethics Code is in regulation or in policy or in guidance documents, it doesn't really matter all that much. 

Fourth, all of this is somewhat irrelevant anyway. These Ethics Codes are enacted as if they are Superman, come to solve all our ills. But, let's face it. A dumb teacher is a dumb teacher, whether or not there is an ethics code that tells them not to be dumb. Dumb teachers (those likely to do something highly unethical) are not going to read or worry about the Ethics Code anyway and smart teachers (those that do live their life ethically) didn't need it in the first place. Their greatest functions are ideological and CYA oriented. That Professional Standards Boards or Education Departments can SAY they have an ethics code is far more important than the likely impact on teacher behavior of handing out a pamphlet to pre-service teachers. 

So, I don't get all the hubbub over these Ethics Codes. Teachers, on the whole, are an extremely ethical group anyway (I've never heard of an educator ponzi scheme, for instance). So, I think it is a bit of a waste of political effort, especially right now in the face of Alabama's persistent mid-year budget cuts. I know we have to fight over something, but it really does seem unethical to fight over and Ethics Code, doesn't it? 

Budget Shifting ... Carefully

Here's a legal topic that is happening now that might not be getting a lot of attention - budget shifting. Particularly, schools shifting money from earmarked funds toward other priorities. There was a good example out of Ohio today where some IDEA funds were shifted toward general priorities. Ohio cleared a provision that blocked local special education funds from supporting other expenses and, thus, schools all over the state have shifted money originally earmarked for special education students toward other needs. 

This example from Ohio gets at a larger issue that's happening right now in schools were budgets are tight and administrators are getting "more creative" in moving money around. This is especially true because of the bifurcated school funding system whereby revenue enters the school in several different funding streams, each of which has restrictions on its spending. As those funds are protected differently by state legislatures, administrators are forced to move money around to compensate. For instance here in Kentucky the Legislature and Governor have done a good job protecting the SEEK fund (the general education fund), but have not protected transportation, professional development, extended-day services, etc. The kids still have to get to school, so administrators are forced to shift these funds. 

But the rub is that there are frequently pretty specific rules about how such money can be moved around and almost assuredly lots of administrators right now are violating a lot of these rules. Not only that, but as Ohio showed, entire states may also be taking actions that get them sued, if nothing else. 

So, keep an eye on it. School budgets are a black hole even for well practiced administrators, so it's hard for the general public to know what is happening. But, as information leaks out look for more lawsuits to ensue. 

90 Lashes for a Cell Phone in Class + Prison - Literally

Sounds like a joke, doesn't it? 

It's not. 

And, it happened in a country we are closely allied with, Saudi Arabia. 

Why do we ... ? Oh, never mind I guess, I think we all already know the answers here.  

The upside though? One less county our students are going to have to compete with in the future. I guess they don't bother to stop and think about what happens when the oil runs out. 

h/t @stevejmoore    

Educators - Expect to be Recorded

A controversy has erupted in Mississippi over the recording of school board meetings. I've posted on this before at the behest of Wes Fryer, so I'll just refer you to that (although I should probably do an extended version for School Boards Journal or something). 

Bottom line: if the recording is not disruptive and the content of the meeting is not private, go for it and don't feel like you need to hide the camera. I don't know Mississippi law, but that is the most likely outcome in this case as well. 

This is 2010. Devices that can record video and audio are everywhere (this is my favorite) and, frankly, if you are a school board member you should expect to be recorded - even in rural Mississippi. In fact, there are a slew of school boards doing their own recording (why not save folks the trouble and help get your message out? Your students would probably love to do it for you!). 

If you are a teacher, you should expect to be recorded.

If you are a principal, you should expect to be recorded. 

If you are a professor, you should expect to be recorded. 

It's just the world we live in. Get used to it. 

What if ...

What if education reporters were like sports reporters? After years of being lauded by the very same media, how many of our "performance enhancing" (not cheating on those tests, mind you) superintendents would be under collective fire until they held a tear-filled press conference?

Why Charter Schools Bother Me

This case really illustrates why charter schools fundamentally bother me. Here is a summary of it (I did this for the School Law Reporter, and since I am putting this one out for free, do me a favor and consider joining ELA):

Northern Kane Ed Corp v. Cambridge Lakes Educ Ass'n, 914. N.E.2d 1286 (Ill. App., 4th Dist., 2009). A teacher union’s ability to organize and represent the teachers of an Illinois charter school was at issue in this case. Reversing the Illinois Educational Labor Relations Board, the appellate court found that the charter school authorizing statute excluded the provisions giving bargaining rights to public school teachers. The court interpreted the statutory provision reading, “[a] charter school is exempt from all other state laws and regulations in the School Code” as including the provisions of the Education Labor Act, while the union argued that the Education Labor Act was a distinct law from the School Code. The Court did note that Illinois subsequently passed a separate law providing coverage of the Education Labor Act over charter schools, but that the law could not be applied ex post facto to the school district.  

So, a legislature, in this case Illinois, writes a law saying "exempt from all other state laws in the School Code" without really defining anything else.

Um ... then what?

Actually, I'll tell you what comes next ... a whole bunch of lawsuits like this one. And we're just at the tip of the iceberg on these charter school lawsuits. This is going to be an enormous mess legally.

Here are the questions, for instance: Did the legislature intend to give charter school teachers bargaining rights? Did it not? What's the legislative history say? Should we pull out some statutory interpretation rules? What does public policy prefer? Should judges be making these policy decisions in the first place? And, does it stop there? What about due process elements for teachers? What about tort immunity laws? What about workplace safety laws? What about, what about, what about ... it's sort of endless.

Basically, courts (largely ignorant when it comes to sound educational policy) are left to guess and fill in all the holes because a legislature got ahead of themselves in writing these charter laws. It has taken us a hundred years to fill in the details of school law in the United States (fifty times over, in fact). To try and just sweep that away in one fell swoop is irresponsible at best. Sure, that 100 years of law is an enormous bureaucratic hurdle and it hampers educational innovation. I get that. But, every single one of those laws (even crazy ones like this one, see section c) is there for a reason to protect some kid, some teacher, some parent, some administrator and the schools themselves. If you don't like those rules, change them. Tweak them. Reform them. But, don't just try and get rid of them... all ... at once. 

I get that everyone wants to blame the law. It's an easy and politically expedient target. I get it. But, the law is not the problem most of the time. The law is not what is holding our schools back. There is a lot of flexibility already built into the system. Certainly enough to make massive changes as a school leader and there is flexibility in our democratic system that we can change the laws when they get out of date. 

Charter schools are a quick fix, a cop out in some ways, and like any other quick fix they frequently cause more problems (and litigation) than just putting in the hard work to fix the law in the first place would have done. This case is just one small example of what is likely to continue to be a growing trend.

Rose at 20 - The Symposium

This is the third and final installment in the Rose series from the Rose at 20 event we held in cooperation with the University of Kentucky (ed & law) and the Education Law Association. The prior two installments are here (the players) and here (the Governor).

In this installment, we have the symposium that constituted the second half of the program. This component was more nationally focused about the future of education finance, having reflected on the twenty years of school finance adequacy cases post Rose (the first half of the program was more local focused). The speakers we invited for the second half of the program were Craig Wood of the University of Florida, William Thro of Christopher Newport University, and William Koski of Stanford University Law School. These three will be publishing their papers in a special issue of the Kentucky Law Journal set to arrive next year (I'll announce when it is ready and I'm happy to report all the papers are in!). Finally, the symposium was moderated by Kern Alexander, who not only is a school finance scholar himself, but was also a central player in the Rose litigation (and his ideas impacted all subsequent litigation). Thanks to all of those scholars for participating.

Anyway, on with the show:

Rose at 20: Kentucky Law Journal Symposium from UK College of Education on Vimeo.

If you want any more information about Rose or the Rose at 20 event, please contact us here at UK and we'll be happy to accommodate. 

Edjurist TV: Episode 7 - Education Law in South Africa, A Conversation with Rika Jobert and Jean Van Rooyen

Had the marvelous opportunity a couple weeks ago to sit down and chat with Professors Rika Jobert and Jean Van Rooyen, of the University of Pretoria's Department of Education Management and Policy Studies. We chatted about educational law, leadership issues, finance issues, preparation issues, etc. It was a great time and our department enjoyed hosting them in Lexington before they went on to Louisville for the ELA conference. Below is the interview and the relevant links:

Interuniversity Centre for Education Law, Education Leadership and Education Policy
Rika's Book: The Law of Education in South Africa (and a new one out as well).
Jean's Book: People Leadership in Education
South Africa Constitution

School IT Departments ... Concerns

As I am working here in KY to modify our schools for the information economy, increasingly I am becoming concerned that school IT departments might be more of the problem than the solution. I know that is heresy (especially given my large IT based readership), but I am starting to really have some concerns. Reading Wes Fryer's excellent post yesterday caused me to want to articulate those concerns.

First, power from the administration is being increasingly delegated to the IT department - because administrators don't understand (or won't bother to learn) the necessary technical information to make what amount to essentially administrative decisions. These IT departments may not view themselves as leaders. They may not take the more legally risky move that has the potential for more educational benefit (think blocking stuff), whereas I have coached my principals to make those moves where ethics outweigh the law. 

Second, the IT departments I have seen are generally not "big picture" departments. They are more concerned about their line items in the budget than the overall budget picture. We can't sacrifice special education funding for a new computer lab - so stop asking. You are not helping the principal or superintendent by requesting outrageous investments. 

Third, they are insulated - and I think intentionally so. They become little fiefdoms - a bit like Oz in the Wizard of Oz. Don't ask me how the network operates ... just respect me because it does operate ... and for the love of God, please don't pull back the curtain.

Fourth, they start to look down/criticize slow adopting teachers. This in turn breeds resentment and then stubbornness. There is just not nearly enough patience. Yes, I know you want to talk about Twitter and personal learning networks, but teachers generally are just beginning to understand blogging. Generally, they are too far ahead.

Fifth, they are geographically isolated. The school I taught in had the IT department in a little corner office off the far end of the library. Unless you knew where to look, you would have never found it. What kind of statement is that? On one hand, we want all the wires in the school to run to it, on the other we don't actually want to see it.

Sixth, they are not professional enough. They dress in jeans, are not clean shaven, don't come to meetings, spend their time on twitter instead of talking face-to-face, etc. And, when you are not professional, you are not part of the larger conversation.

Of course, I think this all adds up to a concern I have more broadly over their attitude. Returning to Wes' post, it is the best intentions gone awry. Generally, I do not question that school IT departments are doing what they think is best for the students and the school. Also, I generally do not question that school IT departments are legitimately trying to be cutting edge and trying to advance their school through technology. They legitimately have the best of intentions - but those good intentions are not translating to systemic reforms. There is plenty of blame to go around and I don't want to assign it all to IT folks, but their insular and "better-than-you" attitudes, their lack of patience and professionalism, their constant pushing toward new technology, it just doesn't translate well. And, while I do think school IT departments are advancing the ball, I think they are advancing it just enough so that everyone else can write off their technological responsibilities. Scott McLeod had a great point yesterday as well, and I invite you to join in the conversation that is currently going on over there in the comments. But, this comic does sum it up pretty well.

Dilbert.com via Dangerously IrrelevantThat's my fundamental concern here. IT Departments, through with the best of intentions, have become a cop out. Schools are not really serious about large scale, systemic, technology-based reforms; they are just serious enough to let someone else worry about it for them, though. And, as long as IT departments continue to be that responsibility write-off, I don't think we can ever get to systemic changes to reorient our schools to the new economy. 

Liveblogging ELA - Cyber Charters

Okay, the best session of the conference so far (for me at least) was 2 presentations on cyber charter schools. It has me so stoked that I sort of want to write my own article about it. But, let me review their work first.

Brady, Umpstead & Eckes presented on the legal issues that might arise from Cyber-Charters. They think there are about 100,000 students in cyber-charters right now in about 25 states with authorizing statutes. For the most part, they identified both a lack of research on these "schools" and a lack of guiding statutes and regulations - but tried to use the existing legal structure to outline what they think should be the legal boundaries. This is an article well worth reading when it comes out. 

Belinda Cambre took a more local view of cyber-charters in New Orleans as they responded to Hurricane Katrina. They are expanding greatly and have 3 more applications under consideration in Louisiana right now. But Belinda too noted the lack of oversight and the lack of clarity regarding how such schools must operate. Synchronous for asynchronous requirements, for instance, are not clarified at all. Nor are how such schools supposed to interact with existing brick and mortar schools and/or homeschooling. 

Bottom line here are that we are legally flying blind on regulation of these cyber-charters. It is sort of a perfect storm of lower regulatory rigor on charters and lack of understanding of virtual - resulting in almost no oversight. Belinda even cited a school in Maine that, for a fee, will read your transcript and grant a diploma that is accepted at many universities. Clearly, we have not considered that kind of interaction of schools in one state granting diplomas to students in another state without the student ever visiting Maine. 

The REALLY CRAZY thing here is that this kind of interaction between schools and students basically blows up the entire model of public education in the United States linked to boundaries. Money is generated by boundaries. Students are assigned to schools based on boundaries. Teachers are certified based on boundaries. But, these boundaries are not necessary anymore and, while tech. folks like Scott M. have been preaching the possibility of this, this cyber-charter concept is the first potentially truly boundary breaking implementation of this. So, the boundaries are falling, but the law has almost no legal structure built to compensate for this change. 

Anyway, before today these concepts to me were mostly abstract. Anyone that understands the Internet could conceptualize such possibilities, but such concepts were mostly left to imaginary implementation. No more. Cyber-charters are pushing ahead and filling the possible space because they are literally almost operating in a legal vacuum.

Just an outstanding presentation, and, I think, a good example of why organizations like ELA are so important. Young researchers like these can get the legal mechanism moving, hopefully soon, to assure that schools are in touch with our democratic structures as expressed in law. Schools simply left to pure market mechanisms are dangerously out of touch with the American system. We can democratically handle this transition in schooling, but we are going to need a whole lot more presentations like this one. Bravo.  

Catching Up With Cases

Also, thanks to the Rose timedrain, I have been lax in putting out some important cases that have come down lately. So, let's get them out. 

First, last Friday Pontiac v. Spellings en banc came out of the 6th Circuit. Mark's got the details. It came down in a split decision, meaning the dismissal was affirmed. But, WOW, how close was that? We came 1 6th Circuit judge short of a Supreme Court case directly on NCLB - who knows, with the split decision, maybe the Supreme Court will think about taking it (although I doubt it because they probably collectively like the current result - although surely Scalia and Thomas will push for it). Anyway, this is an important case and I look forward to getting more details out about it soon. Gina, who I discussed this case with earlier in Edjurist TV, will be at ELA and we are planning to discuss the outcome. 

Also, the Colorado Supreme Court saved a school finance suit and sent it to trial in Lobato v. State. Here are some details and here is a analysis from Joshua Dunn at Education Next. This is not a victory for the plaintiff's, but it at least signals that the Supreme Court is interested in having this case heard on the merits. So, we'll see where that goes. 

Rose at 20 - Invite and Thank You's

I want to formally invite all my readers to come to Rose at 20: The Past and Future of School Finance Litigation (don't worry it's free!). Next Wednesday, we are having a little get together in the evening at the Brown Hotel in Louisville, KY to commemorate the 20th Anniversary of the Rose v. Council for Better Education lawsuit that lead to the overhaul of the Kentucky school finance system in the Kentucky Education Reform Act. The event is being held in conjunction with the annual meeting of the Education Law Association. Please click on either of the images for the full flyer.

Click for BrochureThe local participants include the Governor of Kentucky, Steve Beshear, the President of the University of Kentucky, Lee Todd, the Dean of the UK College of Education Mary John O'Hair, the Dean of the College of Law, David Brennen, Judge Ray Corns, and Debra Dawahare, who represented the vicitorious plaintiffs. Debra still works at Wyatt, Tarrant & Combs, who are also sponsoring the event - and, I can't thank them enough for their support! 

As part of the evening as well will be a Kentucky Law Journal Symposium on the impact of the Rose case nationally and the future of school finance litigation. Kern Alexander will moderate the symposium in which Craig Wood, Bill Thro, and William Koski will participate and publish papers in a special issue of the Kentucky Law Journal (look for it next Spring and I'll post when it comes out). 

It will be an absolutely lovely evening of remembrance and I want to thank Scott Bauries, my blogging partner here, for helping to coordinate the event from the law school side. I also want to think Neal Hutchens for being willing to come on board with this event, Dana Daughtee for editing the special issue of KLJ, and Lesley Stout for making KLJ a part of this. I also want to thank the staffs of the two Colleges including Mary Ann Vimont, Judy Griffin, Brad Duncan, and the folks at UK PR. I also want to thank Richard Day of EKU, Wayne Young of KASA and everyone else that helped me gather information about the case.

Also, I want to tell my readers how pleased I was to work with the Education Law Association and how comforting I found Cate Smith's leadership. I think that organization will be in good hands moving forward and if you are a reader of this blog, I do encourage you to consider membership in that organization (and tell them I sent you because I get a discount!).

But, seriously, a lot of people had to work together to pull off an event like this and I was especially pleased with how everything came together.

So, please come out and have a lovely evening.

AASA Legislative Update on YouTube

Slowly, but ever so surely, the upper echelon of education is wading into Web 2.0 - and, rest assured I'll be here to report what I find that's related to educational law. It's about time, I say. It's nice that these people are finally talking to me in a format that I can understand. 

Today, AASA's Legislative Update by Bruce Hunter, their chief policy advocate, at the AASA YouTube channel. The latest episode talks ESEA, Common Core, and the impact of the health care legislation on kids and schools. Great stuff. 

Enhanced Attorney's Fees in Civil Rights Cases & NSBA's Public Stance

Mark Walsh, doing his usual outstanding job, had a great post today on the Supreme Court oral argument in a case involving enhanced attorney's fees. Mark does such a great job with the facts and the Justice's positions at oral argument, I won't repeat them here. The case is Perdue v. Kenny and, broadly, civil rights lawyers were awarded an extra 4 million in "enhanced fees" (on top of the 6 million in typically permissible fees) for doing such an outstanding job on a foster system case against the Georgia Department of Human Resources. And, I'll just tell you now I don't like that award either and judging from Mark's reporting, I sort of expect it to be struck down. Fine.

What does concern me, though, is NSBA's amicus brief supporting the state of Georgia. In short, I think it was a little distasteful on their part. They make three principal arguments: (1) enhanced fees hurt students by taking money away, (2) enhanced fees reduce the likelihood of settlements, and (3) enhanced fees will discourage voluntary changes on the part of schools. None of their arguments are that bad, but neither are their arguments that good. I can feel, a little, NSBA stretching to make their case in the brief (especially the quasi-complaining about tight budgets). In fact, I don't think the arguments were good enough for NSBA to get involved in this.

Civil rights are a hot political issue and it is one you don't want to be on the other side of unless there is a really good reason. At least in my opinion, there wasn't one in this case. For instance, next week at ELA I am helping to coordinate a remembrance of the Rose v. Council for Better Education school finance case out of Kentucky where lawyers for school districts substantially advanced civil rights for students in Kentucky. In that case, one could make a good argument that the lawyers for the school board should have received "enhanced fees" for the educational benefit they brought to poor, rural Kentucky children. So, NSBA's members have been on the other side of this equation in the past for one. 

But, generally, on occassion I question how far NSBA's attorneys are willing to go. And, this is one of those occassions. Don't get me wrong, I love the work that NSBA does and it frequently directly benefits me, and they should absolutely be outstanding advocates for their members. But, sometimes discretion is the better part of valor and it is good to not be seen as openly trying to diminish student and civil rights. Even though I agree with them that enhanced fees are probably not a good idea, making such a public statement in that forum I think was a little distasteful.

A Quiet Year at the Court on Education?

Mark Walsh, who watches education at the Supreme Court closer than anyone, has noted that there are no education cases currently on the docket for the Supreme Court's fall term (although there are some tangentially related cases he does a good job of explaining).

I think this is a good thing, relatively. We have had a pretty busy past few years and there have been some substantial legal changes affecting schools on teacher speech, student speech, student searches, various elements of special education, English-language learners, and other areas like employment law. It has just been solidly busy (not overly busy) the last few years so I think it is refreshing to have a slower year mixed in. Of, course, feel free to disagree ...