Call for Papers--AALS Education Law Section

The Education Law Section of the Association of American Law Schools has distributed the following Call for Papers for the upcoming Annual Meeting in San Fransisco.  Note that selection comes with publication in the Michigan State Law Review.  Here's the Call:

Call for Papers Announcement

The AALS Education Law Section will hold a program during the AALS 2011 Annual Meeting in San Francisco, California on Immigration and Higher Education.  The panel description is as follows:

Many students attend U.S. colleges and universities who are not U.S. citizens, and many of those students become faculty in the U.S.—especially in the STEM disciplines. The citizenship of these individuals gives rise to numerous legal issues. This panel will address several of these issues both in the U.S. and abroad, including: whether undocumented students in the U.S. should pay in-state or out-of-state tuition as disputed in current litigation in California and Kansas; how universites in the EU operate in terms of out-of-country tuition; and also the licensing of professionals across national borders.

The section invites interested scholars to submit proposals for papers to be included in a symposium to be published in the Michigan State Law Review during spring/summer 2011. One or more papers also may be selected for presentation during the program at the Annual Meeting.

Submissions should be sent via e-mail to Professor Emily Gold Waldman at ewaldman@law.pace.edu by October 15, 2010. Members of the Section’s executive committee will review the submissions and applicants will be notified of the committee’s decision by November 15, 2010.

Eligibility:

Faculty members of AALS member and fee-paid law schools are eligible to submit papers. Foreign, visiting and adjunct faculty members, graduate students, and fellows are not eligible to submit.

Registration Fee and Expenses:

Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.

Time and Date of Panel:

AALS Education Law Section

Immigration and Higher Education

Friday, January 7, 2011, 10:30 a.m. – 12:15 p.m.

2011 AALS Annual Meeting

San Francisco, California

I presented at this conference last year, and it was a great experience.  I encourage all of our law professor readers to send in a paper!  Hat tip to Kristi Bowman, President of the Education Law Section.  

"The Storm" Turns Five

Most people in the Gulf Coast region do not call Hurricane Katrina by its name.  They call it "The Storm."  Perhaps this is because, especially in Mississippi and Louisiana, The Storm so fundamentally changed daily life that it is unnecessary to say which storm one refers to.  Perhaps it is a snub to the Hurricane gods, like turning one's back on a bad memory.  Whatever the reason, The Storm turned five today, and it is worth marking that milestone here on a blog dedicated to education law issues. 

The Storm is of particular interest here at Edjurist because of its profound effects on public schooling policy, especially in New Orleans.  In the past five years, the city schools in New Orleans have become what has often been called a "laboratory of experimentation," a term that Justice Brandeis used to refer to the states in general in defending his ideal of federalism.  New Orleans is now divided into traditional public schools, state-takeover public schools, and several different kinds of charter schools.  Around fifty percent of the schools in New Orleans are presently charters.  This situation is unprecedented in public education, and it is both excting and, in some ways, scary.  From the region, we hear both success stories and worrisome reports of neglect and discrimination--particularly in relation to disabled students. 

With the idea of education law and school reform in New Orleans in mind, I want to call the attention of our readers to two feature law review issues that focus on school reform in New Orleans since The Storm.  One is already published as Issue 2 of Volume 11 of the Loyola Journal of Public Interest Law.  The other will be published as the January 2011 issue of the Journal of Law and Education.  The papers in these volumes reveal a good deal of unknown or under-discussed information about the post-Katrina reforms in the area and their local and national implications, and they are worth a read for anyone interested in large-scale reform efforts. 

The Battle for Detroit Public Schools

One of the most interesting education law issues going on in Michigan is the battle between Robert Bobb, the Detroit Public Schools' (DPS) state-appointed emergency financial manageer and DPS's Board of Education. Multiple lawsuits have been filed.

It illustrates the tension between state authority over education and our tradition of locally controlled schools.  The DPS Board filed a civil suit last summer against Mr. Bobb alleging he exceeded his authority as emergency financial manager because he proposed changes to academics.

Mr. Bobb won the first round of the Board's lawsuit against his plan for the district which made sweeping academic changes when the Court of Appeals reversed a lower court ruling against him.  Read the story here: http://www.mlive.com/news/detroit/index.ssf/2010/05/robert_bobb_wins_round_but_det.html

The case continues in the circuit court, though, and Mr. Bobb and the eleven member board have been ordered to attend hearings related to the lawsuit.  Read the story here: http://www.mlive.com/news/detroit/index.ssf/2010/06/robert_bobb_v_detroit_board_of.html

In the latest development, Robert Bobb will soon be making a recommendation to the Michigan Legislature that DPS have a permanent Inspector General, Auditor General, and Chief Financial Officer to combat years of financial mismanagement, waste, and corruption.  He wants these officials to have the authority to act independently of the local school board.  Read the story here: http://www.mlive.com/news/detroit/index.ssf/2010/0/robert_bobb_preparing_proposal.html The battle continues ....

"The processes and procedures for student elections are under review."

MSNBC reported today that the Nettleson School District in Mississippi recently sent around a memo to its middle school students regarding their opportunity to run for class office.  This memo listed each office available in each grade, and then further specified the racial requirements for each office!!!  Even more astonishing than the actual policy of class office segregation by race (if it is possible to be more astonishing) is the school district's tepid, bureaucratic response to the revelation that it continues to practice Jim Crow education by explicit edict.  The title of this post is the meat of the district's response, but I encourage readers to read the whole thing here. 

Unless this is some elaborate hoax, then we have serious problems in this part of Mississippi.  In my education law classes, I routinely remind my students that, just because the Supreme Court has held that a particular action is unconstitutional, one should not expect that the action is never performed in any school district in the country.  But when I say this, I am generally referring to school-directed prayer, NOT de jure racial segregation.  Truly depressing. 

Class Resources

So, within the past couple days I have received a couple requests from folks about ideas for their school law courses and I have been helping my TA gear up for teaching pre-service teachers about the law. During this time, I was reminded what a good resource the blog is for subject-specific content. I've been building the blog archive now for around a 1/2 a decade, so there are a lot of stories, videos, images, etc. that might be useful in your courses (they certainly are in mine) for generating interest and discussions on these legal topics. I think we school law profs. need to keep in mind that the law is boring to most people and that we really need to liven it up for maximum learning.  

The best way to find these is to use my category archive (under the blog menu above) or the search tool on the right. In fact, since I frequently mention where the event occurred, one good search strategy might be to search for your state and see what comes up. There are over 700 posts in the archive ... I promise there is something you can use in your course if you do a little searching. 

Some archived stuff I have used recently in my courses include:

1. This crazy church/state cross burning teacher from Ohio (use with religion).
2. The continuing insanity of duct-taping students to chairs or putting kids in cages (use with torts). 
3. Pink dyed hair and student speech (use with student expression). 
4. A Kentucky pat-down over $5 and search review (use with search & seizure). 
5. Great This American Life clip on video cameras in schools (use with search & seizure).
6. For those early-childhood folks - if you want to gross them out (use with teacher/student discipline). 
7. If you want to scare teachers away from abusing students (use with harassment). 

Anyway, that's just a taste of what lies waiting for you in the archives - just a heads up. Have a good weekend everyone. 

Can policies stop a mobile learning tsunami?

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

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

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

Meanwhile, the kids are waiting for us ...

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

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

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

Picky, Picky, Picky ... Really?

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

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

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

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

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

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

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

 

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

Missing RttT: A Pep Talk Revisited

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

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

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

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. 

Michigan Supreme Court sides with teacher safety in student assault cases

On July 31, 2010 the Michigan Supreme Court in Lansing Schools Education Association v. Lansing Board of Education addressed an important safety issue for educators.  Michigan law requires that students who physically assault an educator be expelled.   In the lawsuit, four teachers, along with the local, state, and national education association alleged that in several instances students who physically assaulted teachers were suspended but not expelled.  The plaintiffs were seeking a writ of mandamus to compel the Lansing School Board to expel the students.  The defendant Lansing Board of Education won the lawsuit at the Court of Appeals level, where plaintiffs were found to lack standing to pursue this claim.  In a decision last this week, the Michigan Supreme Court reversed, saying that plaintiffs did indeed have standing.

This decision overturned an earlier Supreme Court decision, Lee/Cleveland Cliffs, that had adopted the federal view of standing and its case-or-controversy doctrine.  The court explained that it was returning to Michigan’s historical view on standing that is a limited, prudential approach.  This approach was one that gave courts discretion and granted standing to individuals who had a special interest in the case, not an interest in common with every other citizen in the state, in order to ensure sincere and vigorous advocacy. Thus, the court reasoned in this case that teachers have a special interest in enforcing the expulsion law MCL 380.1311a(1), that will be detrimentally affected in a manner different from the citizenry at large if the statute is not enforced.  In order words, since these teachers were injured by students they, and the labor organizations that represent them, have a unique interest in making sure that the students were actually expelled (not just suspended).  This is especially true in light of the fact that the law was passed to make schools a safer, more effective working environment for teachers.

Under Michigan’s new approach, a litigant has standing whenever there is a legal cause of action.  Where a cause of action isn’t provided by law, the court may determine that a litigant has standing if that party has a special injury or right or substantial interest that will be detrimentally affected in a manner different than the citizenry at large or if the statute conveys standing.

This case interests me because in one of the first school law classes I taught, one of my students, a high school teacher, was assaulted and injured by a student as she attempted to break up a fight.  The whole class was shocked by the lack of recourse she had.  The student immediately left the district, so the school board took no action against the student and the teacher did not press criminal charges.  For teachers who are assaulted by students, this decision will be a welcome relief. 

Interestingly, earlier in my career I served as an Assistant Attorney General for the State of Michigan representing the State in various matters, including purchasing.  We had numerous disappointed bidders, i.e. companies who were unsuccessful in their attempts to secure contracts with the State, attempt to sue to enforce statutes that required the State to follow certain bidding procedures.  The courts in those cases routinely ruled that these bidders lacked standing.  The bidders’ arguments were essentially the same as the educators in these cases—we have a special interest in pursuing these claims so you should let us.  Under the reasoning of the Lansing Schools Education Association case, these bidders may be able to be granted standing to pursue these claims.  I do not think that would be a good thing because most of the claims that were brought by the disappointed bidders were based more on their disgruntled status than any significant variance from the law.  Of course, public school teachers are public servants and the law in this situation is more straightforward than the state bidding procedures, so educators are more likely to bring a lawsuit to enforce the expulsion law in a manner that would benefit the public as a whole rather than attempt to pursue a personal vendetta against a student.