Should an Educational Leader's Testimonial Speech be Protected?

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

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

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

Open Records & Academic Freedom in the Chronicle

The Edjurist's dear friends (Neal, Jeff & Karen) have a fascinating op ed. in the Chronicle of Higher Education today on the controversial request for university professor email and other documents by a conservative advocacy organization. 

Some thoughts of theirs: 

The problem with the unfolding episode in North Carolina isn’t the desire to challenge Nichol’s views and assertions. The problem is using an open-records request as a strategy to suppress debate. A law intended to add transparency and openness to government operations has been used to harass and silence.

Be sure to check out more thoughts from Neal, Jeff, Karen & their team at our sister blog, HigherEducationLaw.org. 

Ed. Law Scholar Assumes Deanship of Harvard Graduate School of Education

James Ryan officially began his duties as the new Dean of the Harvard Graduate School of Education a few days ago. You can see the release naming him the new Dean here. His podcast upon starting the job is here. 

I am really excited to see his promotion and wish him the best of luck (frankly I am sort of happy to see HGSE finally employ a full-time law scholar). He is just the next in a long line of education law scholars assuming very high level leadership positions within the field of education in the United States ... and I think that is a very positive thing for all of us. Hopefully James will provide leadership not only to HGSE but to education colleges broadly who frequently look to Harvard for precedence. 

The Consequences of Overpaying University Presidents

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

Back in Black (and Orange)

I have been off the blogging field for several months now while traveling to South Africa, and then working as a visiting professor at Mercer University School of Law (school colors: orange and black).  I am happy to be back now, particularly at this exciting time for the blog in light of our new partnership with ELA.  In the coming weeks, I have many thoughts to share comparing the legal frameworks under which academic employees and students do their work in different countries, and in different sorts of institutions within this country. 

To start, I want to engage a premise that I heard repeated more than a few times at the recent ELA annual conference.  The premise is that the United States "needs" for-profit higher educational institutions in order to fulfill the policy goals we have adopted as a nation.  These policy goals vary depending on who states the foregoing premise, but they seem to boil down most often to getting as many people through college and out the other side as possible, and presumably doing so for as little money as possible.

My question is, am I accurately stating the premise that I heard stated at ELA?  I have to confess that this premise seems to me to be implausible on its face, given the well-recognized tendency of for-profit higher educational institutions to provide less service (measured in terms of completion rates, employment outcomes, and student loan default rates) for greater cost than public and non-profit private institutions.  Am I missing something?  Should we be enabling this sector of the higher education world? If so, why? 

Coaches Thanking God for Victories

It is one of my favorite times of year. My vita has SIU, IU and UK featured prominently ... all good basketball schools (at least SIU was). Anyway, it has been awesome enjoying March at these places. 

After their win v. VCU, Coach Tom Crean of IU was interviewed by CBS. The first thing he mentioned in the interview was,

“We pray before every game, and one of the biggest things is God gives us the tools and the courage but it is our responsibility  to do the work.”

Struck me as a bit odd, but certainly not out of the ordinary. In fact, I eagerly googled his comments for this post thinking there would be some debate, but found no controversy at all. It is so normal we do not even notice anymore, I think. 

But, here is IU's representative, who gets paid a lot, on the biggest stage starting with "We pray before every game." Are we okay with this? Indiana University (an awesome school, might I add) is public and has 40,000 students, a fair number of which I'm guessing are not that into prayer toward this particular "God." Heck, I'm an alumnus and I'm not sure I'm totally okay with it. 

From a legal perspective, I certainly do not like this. I know it would be a difficult situation to challenge, but if challenged, I would worry about the Establishment Clause implications. And, it is very hard to make a Free Exercise claim on the other side of this. 

So, thoughts? Is this worth trying to tamp down? 

*P.S. - And, don't even go there. No, I am not doing this because UK plays IU this week and they beat us once already this year. Crean was just the one I happened to catch (because I was watching the game as an IU fan). 

Gambling on Education - Collectively Doubling Down on our Great American Bet

When I was in my first semester of my first year of law school, the professor I disliked the most (since retired, thankfully) said something that has always stuck with me deeply: "There are 2 investments that always pay off: Land and Education." To first year law students, law professors are like Gods. Especially one so willing to squeeze as he held our legal lives in his hand. 

Obviously, with not only this in mind, I invested heavily in education to the tune of two doctorates, a masters, and around $80,000 in debt (the only reason it is that low is that I did community college and public schools). Later, when I get a chance, I plan to try the other half of his formula. So, keep in mind that not only did I personally invest heavily in higher education, I have seen the promised good returns at least so far.  

But, at some point, even the safest "investment" becomes a gamble. I think education is crossing that border. New data from the Wall Street Journal and Federal Reserve today show that while America has tightened our belts in every aspect of spending, we as a group are continuing to individually double down on education.  

As an educator, and a direct beneficiary of America's (particularly Kentucky's) higher education habit, I am somewhat honored that America continues to put their trust in us to bring them worthy returns. But, at the same time, I am also cautious of an individual betting too heavily on this investment and bearing all of this risk. 

America's great national bet has always been on our people. We have invested and put our trust in our people and we have shown good returns time and again. In particular, we have bet on our youth. If we pour resources into our youth, generation after generation will reward the investment. I know I am personally planning to pay off every cent invested in me twice over or more - and I am building that same responsible passion into my children. Thus, it is on this gamble, that we have built not only a strong middle class, but a strong country - generation after generation. 

From an economic standpoint, there is nothing more productive than an educated and motivated population. If anything, we need to continue to push more higher education (and better P-12 education) out to the general public (and I'm fine with demanding better returns, also). But, at some point, we have to question just how much debt Paul Q. Public can sustain and still return profit on his or her investment not only for himself, but for us generally.

Therefore, I think we need to be asking ourselves quickly whether or not it is economically sensible to continue to pass the vast majority of that cost into future debt payments from the very students we are entrusting with building our future. 

I am more and more convinced that as a nation, we must bear more of this cost. I still want each person (at least each middle and working class person) to have to pay back debt. There is something motivating about that prospect and makes me work later nights than I otherwise would have. But, for many people the "investment" is appearing more and more as a personal gamble - and rightly so. It is closing off access to higher education to many in society who simply cannot fathom taking on a hundred grand in debt when they come from a family that lives on thirty thousand a year hourly wages. Not only is their potential productivity reduced, but their understanding of the great American gamble on all of our people is also reduced.  

As this debt "super committee" is considering all the options, I hope many of them were told the same investment story as my law professor bestowed on me. Adding new taxes should certainly be on the table, but those taxes should not go toward highways or space shuttles or even more crazy lab research at higher education institutions (no offense to my colleagues). We just need as a country to reinvest in our future - our young people - as generations before us have done. We need to make sure that our young people understand that this is a country where you can gamble big on learning - as long as you are willing to reinvest your knowledge and skills back into our collective group over your lifetime.

We are passing off our economic mistakes onto our youth, not just figuratively through national debt debates, but extremely directly and personally (look again at the chart above). We need to stop it, quickly. Our's can not be the generation that loses sight of the gamble that got us to where we are today. My law professor may have been a jerk (and believe me he was), but he passed down the knowledge of the generation before him: land and education. Let's not lose sight of that. 

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

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

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

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

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

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

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

New Title IX Guidance

The DOE has released new Title IX guidance. Here is the official DOE Page.

Just from a quick scan, the thing that stands out to me is the focus on the language "sexual violence" instead of "sexual harassment."

 Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. In order to assist recipients, which include school districts, colleges, and universities (hereinafter “schools” or “recipients”) in meeting these obligations, this letter explains that the requirements of Title IX pertaining to sexual harassment also cover sexual  violence, and lays out the specific Title IX requirements applicable to sexual violence.  Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. In order to assist recipients, which include school districts, colleges, anduniversities (hereinafter “schools” or “recipients”) in meeting these obligations, this letter1explains that the requirements of Title IX pertaining to sexual harassment also cover sexual violence, and lays out the specific Title IX requirements applicable to sexual violence.

I'm not sure the purpose of this, whether this was just meant to cover a small component of Title IX, or to try to redirect the broader discussion (hopefully just the former). Either way, I don't really like the move. Title IX is much broader than just what comes to mind when we hear the term "sexual violence." Additionally, I think more clarification is needed on the harassment part than on the violence part. I feel practitioners are pretty good at distinguishing and punishing violence, but not so good at distinguishing and punishing harassment. There is far too much sexual violence, don't get me wrong, so focusing on that is a worthwhile endeavor and much of the guidance seems aimed at prevention procedures. But, I hope this is not going to take the spotlight away from the harassment and bullying components of Title IX - which still need a lot of clarification. 

Thanks to Jason Block (who you will be hearing a lot more from over the next couple years) for the tip. 

You can see some of our comments on the last DOE guidance on bullying here - plus, why I love ELA.

Tuition Increase Outrage? Or not.

Why is there not more public outrage at some of the tuition increases going on this year? Arizona announced today a proposed 22 percent increase. My friend Jon Becker told me on twitter that VCU has that beat - and that the governor is now punishing them for it. Even lesser universities are raising tuition substantially. Here at UK our increases have been more modest, but we are still outpacing inflation by a wide margin. The recent book DIY-U apparently documents it well and has better numbers. 

Anyway, where are the Congressional Investigations? Where are the attorney generals? Where are the public hearings? Where are the protests on the University steps? Where are the documentary films? Where are the YouTube videos? In short, where is the outrage? 

Are we so accustomed to these dramatic tuition increases that no one even bothers to complain anymore? 

It just makes me so sad to see us as a society passing on nearly all of the debt of running our higher educational system onto the future backs of our students - who will spend half their life just trying to get out from underneath 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.    

CA Supreme Uphold In-State Tuition for Undocumented Students

The California Supreme Court bucked the general anti-immigrant trend of recent months by upholding the state's policy of providing in-state college tuition at California colleges and universities for undocumented students who spent their final three years of high school in a California high school.  The San Francisco Chronicle's article is here; LA Times here.

The issue has been generating a fair amount of discussion lately.  In 1982, the US Supreme Court ruled in Plyler v. Doe that states could not exclude undocumented children from public primary and secondary schools; the obvious next question was whether states could exclude such students from public higher education.  The California case answers a secondary question - can a state (that, like California, has chosen to allow enrollment of undocumented students) charge only in-state tuiition to undocumented students living in the state, albeit illegally?  The California Supreme Court says yes; the plaintiffs - a group of citizens living outside of California (who therefore do not receive in-state tuition) - vow to appeal to the U.S. Supreme Court.  There are interesting questions of federalism, similar to those raised by Arizona's recent immigration legislation, but from an educational perspective, the arguments from both sides are similar to those raised in Plyler.  The most significant difference is that Plyler involved a wholesale denial of education, whereas this case is about how much people have to pay for education - a distinction which may have constitutional significance.

Look for more on this topic to come up at the AALS annual meeting in San Francisco in January - the Education Law section's program (co-sponsored by section on Immigration Law) is on the topic "Immigration and Higher Education."

Public Attacks - Usually a Bad Idea

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

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

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

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

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. 

Sports is losing money for universities ... why are we doing it?

Another report out today confirmed what most of us already know, college athletics is a money pit. An NCAA study done by (Lexington's own, yeah!) Transylvania University found that only 14 of the 120 FBS schools make money and those are typically the programs with the largest and most well-heeled football programs. The rest must be subsidized by other university budgets (potential academic dollars) in varying amounts. For FBS schools that must compete in power conferences but do not have strong athletic programs, the price can be very steep.

Of course, this report comes on the heels of several others that also make me question the feasibility of continuing down our current path in college athletics. Take, for instance, this report out a couple months ago on the growing disparity in atheltic and academic spending. The following chart tells a pretty stark story. And, that's not to even mention the recent seismic shifts in the major college athletic conferences all in the pursuit of an extra couple million dollars. And, before you go thinking I am anti-UK basketball or anything, UK athletics donates millions each year to our academic budget and on top of that I am a huge Wildcats fan. 

Source: Chronicle of Higher Education

But, even so, why do colleges, especially those in non-power conferences, even bother with athletics? There are a myriad of legal issues that ensue once a college chooses to participate in athletics from NCAA or NAIA compliance, to Title IX compliance, to injury liability issues, to insurance issues, to managing booster clubs to handling fundraising, to contracts with sponsors, and managing all this money ... and don't even get me started on my feelings about coaches. In other words, the potential legal liability from athletics is huge. 

So, seriously, why? Yes, I understand there is some prestige that comes with the sporting scene. I recognize that sports marketing can translate into future students. I get the argument to serve the whole student, not just their brains. I absolutely love being in rural Kentucky and seeing the UK flags in the yards. I can see some of the benefits. 

But, all that aside, I don't see the case for it considering everything, including the economics of higher education. Why are we taking what little money we have from academics at most universities and pouring it into athletics ... only to see the vast majority of those teams lose year after year. What is the return on that investment and could we not generate a larger return putting that into academics? I'm not trying to be a sports hater here (I have been accused of it in the past), I would just like some feedback on what I consider a very serious question. Unless someone can convince me otherwise, there is simply no reason whatsoever for schools like my beloved SIU to be playing sports (but, Go Salukis anyway?). 

Rubber ... meet Road: Leadership Day 2010

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

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

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

Lessons Learned  

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

Big Challenges Ahead:

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

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

The Quick Death of Paper Academic Journals?

Received word today that we are considering cutting subscriptions of around 50 education journals. Since Kentucky is still in a relatively moderate financial position, I have to imagine that if we are cutting library budgets, most other states are as well. How will most paper journals cope with this massive drop in support from public libraries? Well, they might have to cut their print editions, even though they have historically tied the print edition to the electronic edition. This article sums it up nicely:

Once given an either-or choice of print or digital, ACS subscribers made their preference clear. "We saw the purchasing market, starting with the institutional libraries, canceling print to such an extent that, when we got through the last renewal season, it was obvious that many of our journals have fallen below the threshold where you could practically consider printing them as a logical choice, much less an economic choice," Nordin said. "Some journals are printed twice a week, they're hundreds of pages, they include four-color graphics. The economics of print no longer worked."

Could the death be a quick one? I think it is possible that the vast majority of academic journals in 5-10 years will be electronic only. Because governmental budgets are typically behind the broader economy, the downturn in the economy over the past few years has only manifested itself substantially in this fiscal year and for the next few. With these budget cuts, I think paper journals are going to suffer especially badly. They are expensive to purchase and they are expensive to bind. They are also expensive to store taking up space that could be devoted to other things, like computer workstations. They are just cost prohibitive in this economic environment and I think the real possibility exists that once we start rolling down this hill, the decline could be quick. Without those institutional subscriptions to subsidize the printing costs, journals may be forced to quickly respond by going to electronic publication only. 

What does this mean? I don't know. Maybe not all that much. When is the last time you went to the library and sorted through the stacks to find a print edition of a journal?  

Michigan education summit

I attended the Education Town Hall meeting sponsored by the Center for Michigan this morning. It was very interesting. There were three panels of speakers to discuss the main issues facing Pre-K Education, K-12 Education, and Higher Education in Michigan. The panelists were asked to focus on three big-picture questions: performance, funding and affordability, and innovation. Not surprisingly, all three panels thought that the state needs to make education funding a priority and direct more, not less, funds into it.

The Pre-K panel (Jack Kresnak & Judy Samelson) touted an investment in this segment of education as having a high return on investment. When the audience had a chance to vote, they agreed by saying that if they could only invest in one sector of education, the money would go here. Michigan currently does not have universal public pre-k education.

The tenor of the K-12 panel (Mike Flanagan, David Hecker, Christine Johns, Tim Melton, & Dan Quisenberry) was much more contentious with Michigan's Superintendent of Public Instruction Mike Flanagan encouraging schools to Reduce, Reform, and Reimagine, Representative Tim Melton saying that Michigan's schools need to face the hard reality that our state has lost a lot of jobs and therefore a lot of income, David Hecker advocating for paying for quality teachers and the need to negotiate any changes in teacher contracts, and other speakers pushing the need to train students to participate in the global economy by teaching 21st century skills.

The Higher Education panel (Marilyn Schlack, Nikki Searle, Lou Anna K. Simon, & Cynthia Wilbanks) didn't have a coherent theme. The University of Michigan's representative made the argument that research institutions play a crucial role in innovation and creativity, vital aspects of the economic development of our state. Michigan State University's president discussed its Shaping the Future initiative that has been cutting costs and increasing the effectiveness of the university. The student representative from Grand Valley State University made a plea for more money for higher educational institutions in light of the plight of students trying to make ends meet with high tuition costs.

What struck me the most about this series of panels was the divergent views on how serious Michigan's economic situation is and how it will affect our public education system. Some speakers, most notably Rep. Tim Melton and President Lou Anna Simon, are actively engaged in re-working the system to grapple with Michigan's harsh economic reality. The figures that were given during the event said that we have lost 1 million jobs in the state and that we've fallen from in the top 10 in per capita income to 38th. Other speakers, the ones asking for more money without seriously considering how to use the current funds more effectively, seemed stuck in the past, hoping that somehow more money for education will materialize as it always has. Although that would be nice, I don't think that is going to happen. So, when asked what structural changes should be made to Michigan's education system, the audience said that teachers' health care and pension costs should be addressed (i.e. cut) first. I think this is a difficult choice but one that is going to have to be seriously considered in Michigan.

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.