Picky, Picky, Picky ... Really?

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

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

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

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

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

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

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

 

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

Missing RttT: A Pep Talk Revisited

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

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

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

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?). 

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

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

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

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

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

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

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

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

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

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

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

Starting School

So, everyone is starting up school again this year. Lots of fresh faces in new places. Good luck to everyone this year. I'm excited about the possibilities, even in our economic state of depression (pun intended?) . 

I'm particularly excited about some of our ed. law colleagues in new positions, so if you know of someone in our field that is starting somewhere new, make sure you send a little note to wish them well. We want to make sure everyone feels welcome and stays committed to improving our education system for our kids. 

In a programming note, you can count on a lot more action here at the blog. I have some new graduate students starting and one of the tasks I am going to request of them is to help generate content that I or others can post on the blog. They might even be doing a bit of their own posting, over time. 

Good to be back, everyone. I've missed interacting with you over the past few months, so let's get it going again. 

Rubber ... meet Road: Leadership Day 2010

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

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

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

Lessons Learned  

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

Big Challenges Ahead:

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

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

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

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

Educational Law Information Online - A Presentation to KSBA

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

Major Sites for Ed. Law Information

CSBA Summer 2010

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

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

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

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

Primary Sources

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

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

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

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

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

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

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

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

Blogs

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

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

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

• Spec. Ed. Law Blogs

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

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

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

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

Law v. Lore in Teacher Tenure

Perry Zirkel filled in for Valerie Strauss at the Washington Post blog, The Answer Sheet, a couple days ago and wrote a provocative post about the law v. lore in teacher tenure. Perry (who I love is jumping on blogging - what a perfect medium for him) makes some great points that the law of teacher tenure is not as ironclad against dismissing teachers as most educators assume. I teach this to my future administrators all the time. Perry also makes a good point that litigation resulting from dismissal cases frequently goes the district's way. Certainly, as is almost always the case, the law is geared to support the school in these cases. So, as is always the case with Perry, he makes some great points and actually points to data to back it up. 

But, I have 2 small issues with how Perry frames this issue and a different recommendation as to how to achieve the desired result. 

First, I think Perry himself also inflates what tenure actually is legally.  As a legal matter, it is simply a contractual automatic renewal provision - and nothing more. For me, tenure is even less than what Perry described, as the due process that is associated with the tenure system is, really, in addition to and distinct from this simple contractual provision. Thus, even Perry in his post I think unnecessarily inflated what tenure really is as a legal matter. 

But, second, whether it is law or lore or something else ... the existing, practical, everyday policy of teacher tenure is construed as some type of block against dismissing teachers. Educators that have practiced, and certainly those in union districts, know the power and reverence the word tenure conjures in most educators. If the law is that substantially different from the everyday policy, then can't we say there is some type of problem with the law? I would argue that the law is not what is written but what is implemented and it is the lore of tenure that is currently the law in schools.

I, too, personally sort of like the black-letter law behind teacher tenure and I think if it were properly implemented as written and understood by lawyers we would have a very different dismissal system in schools. But this law has been around for a long time and if we don't have a proper understanding of it now, how can we assume that there will be a better application in the future?

Thus, for me, perhaps the best solution is just to simply delete the word "tenure" from the process and change nothing else - including the written law - thus supplanting the lore back with the actual law. If the law is simply a contractual automatic renewal provision, why can't we say a teacher has achieved automatic renewal instead of using the word tenure? All the mental baggage is then gone and dismissal is viewed, properly, as the distinct process that it truly, legally, is. That would allow us to move on to debating the real issue, perhaps, that is the due process provided to teachers by states and union contracts. Slightly adding or subtracting to those due process procedures is a much easier, and more politically palatable, option for reform than attacking the legal lore of teacher tenure. 

98...99...? - Will you join ELA's Facebook Page?

ELA's facebook page is at 99 members as I write this. We want to blow past the century mark, so please consider clicking on the follow button (don't worry, ELA doesn't pepper your wall with posts everyday). And, while you are there, be sure to check out Cate's latest video announcing details about the Vancouver conference. You might even be so bold as to share something yourself (we like hearing updates from our ed. law friends or the latest ed. law news). 

Plus, if you are going to Vancouver, you might want to consider signing up for the pre-conference 4 hour session that Susan Clark and I will be doing on technology based legal issues with students and teachers. I will be talking about how technology is changing the practice and rules of teaching while Susan is going to address lots of legal issues related to student technology usage, for better and worse. 

Anyway, just a little update ... now back to regularly scheduled programming. 

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

Bruce Baker, a professor at Rutgers and one of the best educational statisticians in the country, wrote a fascinating post today about potential legal issues arising from the movement to base teacher evaluations on gains on student assessments. This post is based on that one, so please go read it first if you plan to continue ... 

Being a fellow blogger in the CASTLE blogging network, he asked for my feedback, so I wrote this in reply: 

Bruce, 

You are exactly on point. Both are legitimate legal problems, with the disparate impact being more of the slam dunk in my opinion. The disparate impact numbers would be off the charts and states would have a very difficult time establishing that it is a neutral policy. You start tying that in with school finance stats and other characteristics like age of school buildings and the picture is going to get very dark, very fast (no pun intended). This would have to be a disparate impact case, though, not a disparate treatment case (http://bit.ly/GpQJp) and since it is disparate impact, a class would likely be formed -- i.e. someone would need to invest money on the front end of this case to organize it - thus, the NAACP or some kind of organization like that would probably get involved. 

The Due Process argument would be a harder (and much less profile) case, but it could be brought individually ... so we might start seeing a whole lot more of these. Your identified problems in the statistics I think are great, but you are one of the best statistical minds in the education field. Your average joe-blow lawyer would have a really tough time making that case. And, as long as these cases stayed at the district court level, that case would have to be made over and over and over again by lawyers in each distinct community within each distinct state. If those cases rose to the level of the Circuit courts or the Supreme Court, that would save lawyers some work, but it would still be a costly case to put together and perhaps not worth it to the teachers. Anyway, I think you are right on with the legal analysis, but I think a lot of things in the US don't make statistical sense, but the legal system is just not competent enough to always tease that out.

Another legal problem this would create is that if teacher evals were 50 or 51 percent based on test score improvements ... it would make it even more difficult legally to get rid of bad teachers whose student test scores happened to go up. You can put a bad teacher in front of an AP class, and those kids are still going to excel on the test. If that bad teacher has a bad personality, treats parents badly, or any other negative qualitative component for which she would otherwise be dismissed or non-renewed, the test score based evaluation just gave that teacher a silver bullet in court. Probably like your law person there at Rutgers, I teach my principals to not give a reason to pre-tenure teachers when RIFing, because if you give a reason, then you have to defend it in court. These polices not only give a reason, but they give a reason that is largely outside of the principal's control. Even if it winds up that courts still think that 40% negative qualitative evaluation is enough to still RIF or dismiss a teacher, the number of lawsuits is likely to go up dramatically.       

Generally, all this is what happens when you start forcing statistics in the legal system - which is not built for that at all. The legal system is a very qualitatively oriented system, making decisions mostly based on evidence obtained through interviews and the like. The jury, even, is a qualitative system that collectively makes a decision based on all the evidence presented. Statistics throw a wrench in all that because people react differently to numbers. They think numbers don't lie (although, of course, we know that they can and do). That's why generally, I don't love policies that seek to make decisions based solely on numbers - these kinds of things are the result.

Just how stupid ...

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

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

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

So, seriously, what the hell is going on?   

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

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

The Kagan Nomination ... Discuss

Thought I would open up some space for discussion in the comments amongst us educational law types on the nomination of Elena Kagan to the Supreme Court. Since she doesn't have a prior judicial record, it's hard to argue the merits from past cases, so please free form it and just give initial opinions or analysis. There are lots of bios out there right now, but I enjoyed this one. 

Here's my initial reaction having read about 4 new stories in no particular order (so, large grain of salt necessary). 

• Another East-Coaster ... grumble says the midwesterner. 
• More Harvard ... grumble says the public school employee. 
• Something about her smoking the occasional cigar tells me she doesn't take herself too seriously. 
• Seems pragmatic, which I like, but I do understand the argument from progressives that Democrats appoint pragmatists while Republicans appoint ideologues. 
• She's got Larry Lessig's stamp of approval (on Maddow too), which you know is going to appeal to me. 
• Any question who is the party of women these days? Bush = 2 White Guys. Obama = 2 Women.
• The too academic issue does bother me a little (this coming from an academic). I think it is less a hindrance on the Supreme Court than others, but still there is quite a bit of daily grind in the job of being a judge that she doesn't have experience with.  
• I'm okay with the don't ask, don't tell stance as Dean of Harvard. It's not that big of a deal. Not like a lot of Harvard kids are enlisting with Uncle Sam anyway. 

Overall, I'm okay with this pick. Luke-warm let's call it. My issue is always qualifications, qualifications, qualifications. The Supreme Court is supremely important and it is not a place that we should be playing politics. So, yes, I would have liked to see more of a judicial record, but, on the other hand, I think she has clearly worked hard and risen admirably in the legal profession to arguably one of the top jobs outside of being a Supreme Court judge ... the Dean of Harvard Law. That kind of job you just don't get by accident, so it does give me some faith in her abilities both as a lawyer and as a practical administrator. Of course, on a Supreme Court increasingly dominated by ideologues, we'll have to see how those traits serve her. My guess is not all that well when Justice Scalia launches into one of his famous rants. If I had to guess, I think she will be a consistent liberal, but one that does not take as much of the spotlight. It's a hard task to replace Justice Stevens, but then Justice Stevens had decades to hone his positions and public image. Being only 50, she will have the same opportunity. I think confirmation sails through relatively easily (the women's vote is something I think the Republicans need to pay much attention to here) and by fall we have Justice Kagan on the bench.  

But, that's just my take ... what's yours? And, let's feel free to have fun with this and engage one another. 

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?

Babies and Update

Okay, been a while since I wrote here. Sorry. But, I have a good excuse (or at least some excuse, probably not a good one). 

MY WIFE AND I HAD TWINS!!! I'm so proud of them and they are just fabulous little kids. They are small (they were pretty early), and they will spend a while in the hospital. I don't want to link to it because I don't really want Google moving it up page rankings, but if you want to see pictures of them, check out bathon dot posterous dot com. 

Okay, other news (sorry, it's been pretty wild lately). Kentucky and UK were selected as a CCSSO National Education Innovation Lab. For now, I am the point person on that effort. We'll see what happens, but I am pretty excited about the recognition that we have been building something positive here at UK and that Kentucky is a state where collaboration makes a lot of really interesting things possible. Talking to superintendents lately, I'm very stoked about some specific initiatives that could help change schooling in Kentucky. I can't release much more than that at the moment, but there is a lot boiling underneath the surface.  

As always, I keep cranking out the episodes of Lab Gab, our new show at UK on educational innovation. Here is the latest:

Also, I presented this argument to a group of faculty here at UK on Wednesday regarding policy change because of technology. Tomorrow, Saturday, I am keynoting a conference here where I will attempt to answer the question that I ended with in this presentation.

Remember, you can subscribe to that content as well. Lab Gab can be subscribed to here. And my lectures and legal work can be subscribed to here. Hopefully within the next month or so, I'll have my stuff more readily available at the Kentucky iTunesU store so that you can subscribe on mobile devices.

Also, just some site issues - spammers have figured out how to break down squarespace's defense, apparently, so I have closed the forum for now. Instead, if you would like to discuss something on education law, let me point you to the ELA facebook page. That is becoming a good place for that kind of discussion. So, if you are not a member of that facebook group, then join. Also, the comment spam is also getting quite annoying, so I am considering the implementation of a solution there called Disqus. The problem with disqus is that it will eliminate a lot of the old comments and it also uses a different kind of sign in, wherein you can sign in through your facebook or twitter accounts. Anyway, I wanted to throw that out there for feedback before I implemented. If anyone has a reason that I shouldn't try implementation, let me know.    

Finally, sorry for the absence. We got some great activities going on here at The Edjurist and we have record levels of readership, so I want to keep my commitment to keep fresh content coming all the time. 

Lab Gab: My New Show

Well, amongst friends back here at the blog, I'm happy to release my new show, Lab Gab. Okay, yes, dorky title but seriously, got a better idea? (And, seriously, I actually am a dork.) It's hard coming up with the name of shows. At least it is more original than what I did here at the blog, EdjuristTV. 

Anyway, as some of you know, I have been devoting a lot of time lately to a new project here at the COE called P20. Actually, it's called the Kentucky P20 Innovation Lab: A Partnership for Next Generation Learning. You can read more about it here. I think my official title is the Director of the Technology Leadership Lab, but I can't be sure yet. Chances are pretty high this is going to get me fired (anyone need a school law guy with tech skills, keep me in mind!) but it's fun, I think it can help, and we only live once so I'm doing it. Hopefully the twins will be at least a couple years old before the whole thing officially fails and they run me out of Kentucky on a rail, so moving won't be so hard on them and they'll never know the shame their daddy had in the Commonwealth. (Kidding, of course, you Kentucky folks -- don't be so serious!). 

So, as part of P20 we are working with the Kentucky Department of Education on developing a new learning platform using the iTunes U format. Lot's of universities have developed this kind of platform, but P12 is just starting to get into it and Kentucky will be a leader on this front. But, the new platform is going to need a content stream and I had been thinking of starting a new show lately anyway, so I thought I would take advantage of this fortuitous happenstance. I did include a legal component (called "Let's get Legal with It"

So, without further ado .... I present Episode 1 of Lab Gab. 

Risking even further embarrassment, I'd be interested in your thoughts. Good, bad, otherwise. It'll be a weekly thing, so you'll have to endure more of it at least until I generate a substantial audience of it's own.

If you are really weird and happen to like it, you can subscribe to the show via iTunes, miro, channels, or just simple old rss (show page) or rss (Lab Gab blog and comments).  

Aren't we living in fun times? When a professor can thoroughly embarrass himself to the whole world so cheaply?

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?  

This Space for Sale - Captive Audience Included

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

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

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

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

Edjurist TV: 2009 Student Expression Cases

It's been a while since I have posted an episode of Edjurist TV, so I was happy to get back behind the camera. Today, I recap the 2009 student expression cases in the United States that I reviewed for the 2010 Yearbook of Education Law, available at ELA. You can see the archive of EdjuristTV episodes, or always get my latest delivered automatically via iTunes. 

The cases cited in this video:

Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740 [251 Ed. Law Rep. 551] (5th Cir. 2009).

Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502 [248 Ed. Law Rep. 579] (5th Cir. 2009).

A.M. v. Cash, 585 F.3d 214 [250 Ed. Law Rep. 56] (5th Cir. 2009). 

B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734 [241 Ed. Law Rep. 41] (8th Cir. 2009).

Zamecnik v. Indian Prairie Sch. Dist. #204 Bd. of Educ., 619 F.Supp.2d 517 [246 Ed. Law  Rep. 80] (N.D. Ill. 2007). 

Corales v. Bennett, 567 F.3d 554 [244 Ed. Law Rep. 1045] (9th Cir. 2009). 

Brown v. Cabell County Bd. of Educ., 605 F.Supp.2d 788 [ 244 Ed. Law Rep. 47] (S.D. W.V., 2009).

Barnett v. Tipton County Bd. of Educ., 601 F.Supp.2d 980 [243 Ed. Law Rep. 269] ((W.D. Tenn. 2009).

Doninger v. Niehoff, 594 F.Supp.2d 211 [241 Ed. Law Rep. 686] (D. Conn. 2009).

Dempsey v. Alston, 966 A.2d 1 [242 Ed. Law Rep. 256] (N.J. App. 2009). 

Miller v. Penn Manor Sch. Dist., 588 F.Supp.2d 606 [240 Ed. Law Rep. 218] (E.D. Penn. 2008). 

So you missed RttT? A Pep Talk

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

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

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

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