My Concern for the Future of Public Education

I love public education. I am honored to have worked as a teacher and an administrator in public schools for 15 years in two different states. I am an unabashed proponent of public education and I genuinely believe that public education provides most (I wish I could write all) students with the opportunity to reach their potential.

It is with that backdrop that I wish to recount the following experience I had a couple of weeks ago in a course I teach to aspiring educational leaders. The curriculum of the course provides students the opportunity to explore external influences on the governance of public education and one of the assignments requires students to work in small groups to develop a mutually beneficial partnership between a school and an outside agency. One of the partnership proposals called for a union between an elementary school and a series of museums within a particular town. The net result of this partnership would produce greater exposure for the local museums and provide the students with the opportunity to study, in depth, various historical figures. The students would even dress up as the historical figures and create a living museum experience one evening (much like the movie Night at the Museum).

As a former US history teacher, I loved this idea. In fact, I have actually seen the school that my own children attend do this very activity and I have witnessed, first hand, the benefits it had on them. My children will never forget about Temple Grandin and Walt Disney because they got to be these historical characters for a night. So, I was genuinely surprised when, at the end of the presentation on this innovative idea to help history come alive for elementary students, the first two questions that other students asked were:

How many standards will be covered in this activity?

You are going to dedicate four months to this activity and you will only be able to cover how many standards?

I was shocked by these questions and I left this class genuinely concerned for the future of public education. Since this is a legal blog, I will now attempt to articulate my concerns and link those concerns to existing statutes. Why am I concerned for public education? My fear is that accountability and assessment, both essential components of public education, have succeeded in limiting the scope of creativity within educators. I have the privilege to work with an amazing group of aspiring educators each year – literally the best of the best. And, yet, these questions were asked by students in one of the more impressive cohorts I have ever worked with to date. Why? Are these students opposed to creative ideas? No. Instead, they have worked in a system of education that has become too focused on checklist or quantifiable items (how many teacher are highly qualified or how many standards will be addressed by a particular lesson) and have, possibly, lost sight of sound educational practices.

I am not advocating for a return to a time when teachers taught whatever they felt like with no regard to standards. Instead, I am trying to raise a voice of caution against statutes, such as No Child Left Behind, that rely exclusively on measureable outcomes. My fear is that an overreliance on measureable outcomes leads to different forms of corruption, including what I witnessed in my class. These amazing educators in my class do not care more about standards than authentic learning experiences for all children. Rather, they are a part of a system that has become too focused on measurements and, as a result, the system is beginning to lose sight of the ultimate goal – to help a child discover the joy of learning. In addition, those within the system are personifying the values of the system – that is what I think I witnessed.

Standards, accountability, and assessment all have a vital role in public education, but an “advanced” or “proficient” score on a standardized test is not the end goal for public education.

Wonderful NOVA Documentary on the Dover Intelligent Design Trial

I have used this in my church/state teaching now for years, but this is the first time I saw the entire 2 hour special in a single YouTube video (YouTube recently changed its rule to allow uploading of content over 15 min. in duration). I use the very first part, the teaser trailer, to set up a vivid church/state & instructional issues discussion that always goes well. 

Hugging and Other Crimes Against Humanity

This story got a lot of play today where a middle school student was suspended for a mutual hug of his best friend, a female classmate. Here was the rationale: 

“We cannot make an opinion or judgment call on whether a hug is appropriate or not. It’s very difficult to police that on campus,” Christine Davis, the  public information officer for Brevard County Public Schools, told ABC News.

Davis said the school puts policies and procedures in place to help keep the students  focused on learning.

Really? If you can't make a call between an appropriate hug and an inappropriate hug you should be fired. It tells me that you don't know kids and that you don't know their lives. Is it harder to make all those judgment calls? Sure. But, that's what you get paid to do, so stop shirking your responsiblity through made-up policies (no law requires anything like this). 

Want to know why our school systems can't produce the passionate, dedicated, emotionally committed leaders of the next century ... it's because we feel we have to sanitize our schools and students away from such crimes against humanity as hugs between friends.  

When (it's probably not an if) these questionable school leaders lose their jobs ... "no hug for you." 

Race to Nowhere

For those folks that live relatively close to Lexington, tonight the P20 Innovation Lab is hosting a free screening of the new movie Race to Nowhere. More details on the showing are here. You can view a trailer here. I'll be moderating a panel discussion after the movie. My friend Ellen Usher (a rising superstar in the learning motivation ranks) is organizing the screening and also participating in the panel. Joining the panel are Wayne Lewis, John Thelin, & Huajing Xiu Maske. 

I've viewed the movie already, but you'll have to come to the screening to get my (and my friends) thoughts. I'll update this post later with details. I'm looking forward to this one. 

Sixth Circuit Applies Garcetti to Classroom Speech

Today, the Sixth Circuit issued an opinion in Evans-Marshall v. Board of Education applying Garcetti v. Ceballos to exempt the curricular and classroom speech of a non-renewed teacher from First Amendment protection.  I'll have more to say about the decision later, but on a first read, my initial impressions are that:

1.  The case ultimately presents a pretty straighforward application of the Garcetti holding, finding that classroom teaching and expressive curricular choices, as expression "pursuant to the official duties" of a teacher, is unprotected. 

AND

2.  The case should allow for a more definite (as opposed to hypothetical) inquiry as to whether the Garcetti rule makes sense, and whether it deserves to be rethought in the context of academic speech. 

The Sixth Circuit's slip opinion is here. 

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

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

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

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

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

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

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

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

School of One - How does it work legally?

As we start to consider a lot of different models of education, one that is getting a lot of play is the NYC School of One initiative. I have had superintendents bring it up to me and it is getting attention in the blogosphere. Here is their overview video:

Program Overview from NYCDOE Teacher Development on Vimeo.

So, lawyers, what stood out to you? For me, it was this phrase "Individualized Learning Platform."

So, when I was teaching fresh out of undergrad I remember talking to one of the senior special education teachers in my building. We were talking about various issues and at some point I mentioned that I liked the IEP concept in special education and thought one day it will probably become the norm across all of education (remember, I was young and naive - okay, I still sort of am). Anyway, I was not prepared for the scolding that ensued. I got a 10 minute lecture on why that would be a horrible idea, that we would all be swimming in paperwork, that it would be utter chaos. So, I sort of dropped the idea. She made some good points and I was already swimming in paperwork just teaching under Title I, so I sort of resolved to agree with her for the time being. Then in law school, as I worked with the State of Illinois on special education issues, I remember thinking how impossible it would be to implement this for all children. We were barely, and I mean barely, keeping an handle on the special education system as it was, it would have literally shut the system down to add 10 times more students to that kind of system.

So, all this talk about the School of One has sort of brought me back to this issue, especially when they use language like an "Individualized Learning Platform." I want to be able to consider the idea and I want to like it, just like I wanted to like it fresh out of college. But, having now seen the stacks of paperwork and hours of due process for some students, I just can't wrap my head around how implementation of such a system would be possible, realistically. From the video they say technology is helping to bridge the gap, but what I saw was a gaping chasm, is technology really going to bridge that? Even if it does and we have electronic student records and we don't do IEP meetings and whatnot, how are we legally going to deal with a separate curriculum for each kid? I don't even know if it is physically possible, let alone practicable. 

So, help me out here. How are we going to do this? Or can we?

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?  

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    

Copyright and Lesson Plans - A Rejoinder from Tom H.

Tom Hoffman at TuttleSVC, a longtime friend of the blog, has taken the copyright post on teachers selling lesson plans to the logical next level of whether this information is even capable of being copyrighted at all. It is a good post and I encourage you to continue our ongoing conversation on this issue over there. There is such good conversation on this issue, and so many implications, it looks like I am going to be forced to write an article on this one.

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. 

Vamos a Cuba Case Denied Cert.

Good, I think. It was too political and would have made for bad precedent. Plus, it is just not that complex of a case. A school board has the right to prohibit a book as long as they follow procedures and do not discriminate. In this case, the factual accuracy of the book was questioned and (rightly or wrongly) the school board decided to follow their procedures to prohibit it from their school. Unless you can prove discrimination ... that's that. There is no First Amendment issue.

If you disagree with this denial of cert. by the Supreme Court or the current structure of the legal argument, don't get mad at the court - focus your attention on state legislatures that give school boards such broad authority to ban books.

Mark Walsh has more as always.

Teachers Selling Lesson Plans - What Legal Issues?

The big story making rounds over the weekend was the N. Y. Times story on teachers across the country selling their lesson plans online to make themselves a profit. Lots of local papers ran it in their Sunday edition, including my local paper. 

So, why not? I've weighed it over the weekend and I can't come up with a really good reason to legally ban it, not to mention I don't think there is any existing legal issues. I am no intellectual property guru, but a teacher's lesson plan is his or her own intellectual property, meaning they would hold the copyright (if they sought one). As the copyright owner, they are free to sell it in the same way they are free to give it.  Update: See the comments below - my readers think this is "work for hire" and the property of the school district. I'm not so sure, but until I complete my own research, I suggest that their opinion is the one to be relied upon. 

And, I think schools should stay out of it. They may try to take a cut (and I think there is a reasonable argument they should get a cut), but they should just forget about it. There is just not enough money there to pay a lawyer to handle all the intellectual property issues and negotiate prices. 

Maybe I am crazy, and feel free to tell me that I am, but I think this is an area where the market, aided by the Internet, could actually be a good thing for schools. 

Catching Up

Well, ELA was awesome, but I was mostly MIA on the Net. So, it's time to catch up a little. 

First, more stupid zero-tolerance fallout. A girl brought empty gun shells to show science teacher ... and suspended. This is not as bad as some others, but these kind of stories continue weekly these days. At some point the embarrassment factor must kick in. h/t S.M.

Great report from Fordham law on state data system privacy elements and the Washington Post coverage (EdWeek too). I can't disagree with the authors legally, but I do think their natural inclination to protect, protect, protect is the wrong inclination and is going to slow down important research that could improve schools. The solution here is just to let public universities store the data warehouses. We are public institutions within the public trust, but it connects data and researchers more closely. I would like to see more universities getting into this business. 

Bryan Jason Ford (@BryanJasonFord) on the implications of the Supreme Court's denial of cert. in Stancourt v. Worthington City Sch. Dist.. This is pretty good if you are a special ed. person or interested in the Supreme Court approval process. 

Integrating Web 2.0 Technology into School Law Courses

At the Education Law Association conference this past week, I presented on Integrating Web 2.0 Technology into School Law Courses. Sometimes when I present on this subject I just lay out the tools, but this time I decided to try a different tact.

So, you should know that I borrowed Lawrence Lessig's presentation style, lots of Michael Wesch's data, and Scott McLeod's ideas, amongst others, ... and combined them into this presentation. Also, this is the handout that I gave out in the session on how I use YouTube, wikis, podcasts and blogs in my own teaching. Also, this is the Center for which I am an associate director.

My sources are embedded in this page.

This video is available at blip, and vimeo.

Keeping the Definition of Biometric Records Under Control

I was just getting around to reading an article (see middle of page 5) out of Iowa that Scott M. clued me into regarding the new Family Education Rights and Privacy Act (FERPA) regulations that came out late last year. Michelle at the Connecticut Ed. Law Blog posted some of the major changes, but one change in particular is of interest regarding biometric records. In particular I think Scott and I are concerned about the following interpretation from Matt Carver, the Director of Legal Services for the School Administrators of Iowa. 

...Now, unless an eligible student or parent has given approval, staff
should not turn over documents during records requests that have
student handwriting on them, even if names are redacted. Likewise,
if someone requests a copy of a podcast made in a speech class, you
should not pass on that recording without permission from eligible
students or parents if the recording includes student voices...

Okay, first, here are the applicable provisions: 

Personally Identifiable Information
    The term includes, but is not limited to--
    (a) The student's name;
    (b) The name of the student's parent or other family members;
    (c) The address of the student or student's family;
    (d) A personal identifier, such as the student's social security 
number, student number, or biometric record;
    (e) Other indirect identifiers, such as the student's date of 
birth, place of birth, and mother's maiden name;
    (f) Other information that, alone or in combination, is linked or 
linkable to a specific student that would allow a reasonable person in 
the school community, who does not have personal knowledge of the 
relevant circumstances, to identify the student with reasonable 
certainty; or
    (g) Information requested by a person who the educational agency or 
institution reasonably believes knows the identity of the student to 
whom the education record relates.

And here is the definition of biometric record: 

Biometric record, as used in the definition of personally identifiable information, means a record of one or more measurable biological or behavioral characteristics that can be used for automated recognition of an individual. Examples include fingerprints; retina and iris patterns; voiceprints; DNA sequence; facial characteristics; and handwriting.

Okay, so one possible interpretation of these provisions is that no student data should ever leave the classroom ... never, ever, ever! No essays in the hallway, no pictures on the website, no filming of sporting events or school plays or graduations, just generally no records whatsoever, because most of those records are going to contain some biometric record (you could even argue that the student fingerprints on papers circulated in class could violate this provision - and consider how much would contain DNA). Heck, to be safe, you should probably never record or copy anything from your classroom.

Alright, I hear you; that is an extreme interpretation and one that I don't think even Matt in Iowa is suggesting, but it is the logical extension of his argument because if we come at this with the notion that anything that could possibly lead to an identification of a student by an NSA scientist is illegal ... then, well, everything is pretty much illegal because those guys are wicked smart and have lots of really cool tools. 

So, in my view, the more reasonable interpretation of this provision is the school actually releasing a real voiceprint, which apparently has a definition in security circles. This would make sense within the context of the other items in the list (a little noscitur a sociis for you legal beagles). Also, the inclusion of the clause "used for automated recognition" here is vital because it is not the people the definition is so concerned about as it is the machines and machines need systematic, replicable patterns in pre-determined formats. Thus, a machine is not just going to pull a voice in a podcast and automatically link that to a student - and I think the same goes for handwriting and pictures. So, my interpretation of this provision, at least tentatively until I can do some more research, is that biometic records sort of means what you think it would in it's plain meaning - a systematically and scientifically generated student record meant to identify a student by machines. I think the science-fictiony idea that comes to mind is what the DOE meant, not the broad, all encompassing possible definition. So, let's keep our interpretation of this provision under control until we are explicitly told otherwise by the Courts, Congress or the DOE.   

Bottomline, FERPA cannot be interpreted as building a total and complete wall between the school and the community. We would have really bad schools if that happened and very disengaged students. This is a good example of where the lawyers can't get in the way of the learning. Podcasting is a fabulous learning tool. Digital storytelling, amazing. I love Voicethread, as do thousands of educators around the country. Sharing is an important part of learning and the ability to share has increased exponentially in the past couple decades. Some students right here in Kentucky are sharing with students in Brazil everyday, for instance. FERPA cannot be extended to prohibit all of this sharing.   

Anyway, I hope to return to this subject in the relatively near future, but welcome any thoughts, comments or experiences from your schools or universities about how this is being implemented. 

Filtering = Banning ... or Not?

Ira Socol makes a great point on his blog today, that filtering websites equates to banning books. I agree with the general concept, but I want to try to make a distinction (no idea if I'll succeed).

Photocredit: DML East BranchFirst, here's the downside of that comparison ... school boards legally have nearly limitless power when it comes to banning books (which is why a PR campaign like Banned Books Week is all that is left). A few legal standards (may) apply to banning books: (1) if they have procedures they must follow the procedures, (2) the banning must not be viewpoint discriminatory or violate a constitutional right, and (3) there should be a legitimate pedagogical reason. I say (may) apply because the Supreme Court has not ruled in this area since 1982 and the courts have sort of done their own thing for a while. For instance, courts have been using (3) above from the Hazelwood case, even though Hazelwood came after Pico. Anyway, while these standards may apply, they almost always don't as courts generally rule for schools in any challenges to the school curriculum generally and to banning books specifically.

But, let's say that someone brings a case similar to Pico (hopefully without the procedural nonsense that Pico had) but instead of being about books, it is about Internet filtering in schools. Using Ira's example, let's say it is about banning Wikipedia. In order for the outcome to be different, the Justices would have to be able to distinguish between banning books and filtering the Internet. In effect, in order to get a different outcome we need to be able to articulate the differences. This is important because advocates of stopping the broad filtering of the Internet in schools, such as Ira, may still have legal avenues open to them and they may not be limited to solely PR campaigns.

So, let's try to legally distinguish the two.

(1) The intakes are different. A point made by the Courts is that because schools have the power to decide which books are bought, they should also have the power to decide which books are banned. Well the Internet doesn't work that way and the school doesn't "buy" anything, nor does it make intake decisions. Everything is potentially taken in as soon as they flip on the power switch.

(2) The library v. classroom distinction doesn't hold. The Courts have made a distinction between books in the classroom and books in the library ... seeming to give a little more flexibility to schools in banning library books than classroom books (and sometimes the other way around too). Again, the Internet is both a library and a classroom all the time. It is like a library in that there is a wealth of information, but it is also like a classroom because much of the curriculum is either directly on the Internet or tangentially on the Internet. So, let's throw this distinction out the window.

(3) Hazelwood shouldn't apply. It's not super clear that it should apply to banning books anyway, but the reasoning behind applying Hazelwood is that a book in the school may bear the imprimatur of the school (it is approved by the school because it is in the school). I think that is a stretch anyway, but to say that the school endorses a website because a student pulls it up on the school computer is more than a stretch. Thus, the curricular part of Hazelwood shouldn't apply (I wouldn't complain if it is still used to keep the First Amendment out of this). 

(4) Vague and Overbroad takes on a whole new meaning. Courts strike down laws as unconstitutional when they are deemed vague and overbroad. Now, lest you get too excited about your local jay-walking ordinance, this argument very seldomly succeeds. It really wasn't a useful argument in the banning books scenario because a specific book was being banned from a specific place. But, because filtering works differently (broad, sweeping blocking) the opportunity for a vague and overbroad argument seems reasonable. This is strengthened when one considers that the Supreme Court has already used this doctrine to strike down mulutiple filtering laws (see COPA + Reno v. ACLU). While these have been Congressional statutes, I am not sure a similar concept couldn't work in local schools as well.

(5) There already are procedures and clarity on what must be banned. Whereas with banning books there is a lack of statutory procedure for boards to follow, with electronic materials CIPA requires both filtering and procedures for making those decisions. Thus, there is much less discretion at the school board level. In fact, CIPA contains specific language about what may be blocked (anything that is "obscene, child pornography, or harmful to minors.") And while "harmful to minors" may seem amazingly vague and all encompassing, the essential purpose of the courts is to provide meaning to such meaningless terms (even "harmful to minors" is defined, thanks @budtheteacher). In effect, courts will determine themselves perfectly capable of determining what is "harmful to minors" if a website ban is challenged (i.e. - is Wikipedia really harmful to minors? - a judge may well say "no"). Anyway, the point here is that the absence of statutory law in relation to book banning gives school boards much more legal flexibility in the courts, and I don't think such flexibility is warranted in relation to Internet filters because there is a greater legislative framework. (Odd that CIPA may wind up being a helpful thing in this scenario.)

Anyway, that's a start in distinguishing banning books from Internet filtering. While I whole-heartedly agree with Ira's broad point, I think legally it makes a lot of sense to treat these two cases very differently ... which can only be good for those folks who seek to limit the school board's filtering power. Thus, I don't think the legal avenues are closed yet to specific, local challenges to school filtering decisions.

"National" Standards--First Draft

The Common Core Standards Initiative has released its first draft of the proposed "national" (NOT "federal") standards for language arts and math.  The draft standards are here, and the CCSI has requested that interested parties provide comments on the draft.  I will have more to say on this later, but if you are interested, feel free to reveiw my other posts on the topic. 

Defining "Civil Rights" for Curriculum Purposes

Mississippi is looking like they will make "civil rights" an essential part of the curriculum from kindergarten to 12th grade. The civil rights curriculum will be a part of the social studies course, but will be independently tested. 

This is a good idea, but "civil rights" should be defined broadly. Civil rights certainly means the struggles of the African American movement and that should be an essential part of any curriculum, but civil rights also means lots more. Bottom line, civil rights refers to the interaction of the individual with the state. And, as such, civil rights refers to individual freedoms, restrictions, agreements, arguments and how the government incorporates all of these into policy that impact the everyday reality of Americans, and/or, the good folks from Mississippi.  

In short, the proponents of civil rights education in Mississippi are really on a very close page to the proponents of civics education, like Justices O'Connor and Souter. These movements could team up to spread the idea of civics and civil rights more prominently around the country.  

"National" Standards--Part III

Okay, now it seems that we MAY get a "national" assessment to go along with our "national" standards.  According to this article in Education Week, it appears that the Department of Education has "set aside" up to $350 million dollars that is apparently earmarked to assist the states in developing "common assessments" (though talk is indeed cheap in this context).  No information yet as to how these "common assessments" will be developed, but the process for developing the standards themselves might shed some light.

Under the process as currently conceived, the National Governors Association and the Council for Chief State School Officers are jointly coordinating the effort, but they have named several other parties to do the initial drafting, including the College Board, Achieve, Inc., and ACT, two of which are actually testing companies, as mentioned in my prior post.  Once the initial drafting is done, the standards will be critiqued by a panel of designated experts, including representatives from academia, state school leadership, and the national professional organizations for both math (NCTM) and language arts (NCTE).  There is also a new website allowing one to follow the process. 

That's the good news.  The bad news (if you are into centralization of education policy) is that four states have already stated that they will not adopt the standards (see here--subscription required).  This is before any content of the standards is known.  Once the content of the standards comes out, it seems likely to me that several other states will have problems with one or more portions of the standards, either due to over- or under-inclusiveness.  You know the old joke that a camel is a horse built by committee?  Standards are never promulgated in any other way.  It is the states' prerogative whether or not to adopt the standards, and nothing except a "memorandum of understanding" prevents any state from opting out after seeing the standards. 

It seems that the same will be true for any "common assessment" developed in this manner.  Do we really think that states performing poorly on any common assessment will not find a way to get out of it?  Which brings me back to my original point, which is that a set of standards that is not binding through a requirement in positive law that states abide by them, or through pegging state supplementary funding to results on a common assessment, is merely a set of suggestions, not standards. 

If we are really serious about this, isn't it time to start thinking about getting Congress involved?  That is, if it is a good idea to have common national standards and a common national test, it seems that federal law is the best way to accomplish it.  No person who supports "national" standards could possibly object on "local control" grounds to federal standards.  The process could even occur in much the same way (with the NGA and the CCSSA, as federal designees, spearheading and the already named experts developing and critiquing the standards). 

However, the end result, once passed into law, would not be a set of suggestions, but a set of actual standards--the binding kind.  The kind we actually have to meet.  These would be federal standards, AND national standards.  If backed up by a rigorous federal test (mandatory NAEP anyone?), we could then make meaningful comparisons of state outcomes, and we might even save the states a lot of money that would otherwise go to test development.  To me, this would be a vast improvement over the extremely expensive (and yet underfunded), confusing, and frustrating half-measures of NCLB.