Twitter Thing Not Going Away

The U.S. Department of Education announced today on their own twitter feed that they will make an announcement on Race to the Top on their press secretary's twitter feed next week. That's right, multiple twitter feeds with different streams of information are flowing out of most organizations of import nowadays, especially educational organizations. And, because it is interactive, you can ask them questions and get replies, like my friend Bud Hunt did re: Race to the Top. 

What's that? Not on Twitter? Still getting your news the old way? You've not built a Web 2.0 personal learning network?

That's cool. Your reluctance to embrace these new technologies ensures I get to know the news first and I get to have more conversations with more people in the education world. You see, Twitter is a professional hangout these days. Twitter, especially Twitter, is not a teenager melodrama hub. It's a place where real people in the education world are sharing real information with other real people. In fact, while law embraced blogging in a big way that education generally did not, to me it appears that education is embracing twitter in a way that the law is not.   

So, luckily for you, I'm in a sharing mood. Here's my Twitter Primer for Professors. For you ed law types out there, start with following @ELAOffice, @legalclips, @jimgerl, @canyonsdave, @mcleod, @jonbecker, @BrianJasonFord, @schoolfunding, @richhag, @schlfinance101, @EdEquality, etc. (don't forget me), and go from there.       

I really hope that you'll join me because it becomes more useful for all of us when more of us are sharing, but if you do not, it's your loss because this thing, and lots more tools like it, are only getting bigger and more ingrained in our society every day. And, those of us tapped into those fresh information streams have a serious competitive advantage in an information industry.  

ELA Proposal Deadline 2010 - Last Reminder

Photocredit: poyangThis is just the final reminder to submit your proposals for the Education Law Association Conference this weekend as they are due Monday. I talked with The Edjurist's own Kevin Brady today, the outstanding program chair for this year, and he said he was pleased with the submissions so far. He said he was especially pleased with the number of law professors submitting as well as the number of higher education law proposals, including quite a few from attorneys. That's due to a lot of effort on Kevin's part, AALS's Education Law Section, Cate Smith, Rob Garda, and others, but I also think we here at the blog, especially Scott Bauries, had something to do with that.

Vancouver looks amazing and I can't wait to get there. Talking with Brad Colwell, ELA's President this year, he said they were building time into the conference during the day to enjoy the city, which I can't wait to experience. So, package deal here, boost the vita, fun with friends and a amazing city to visit. 

Last thing, subscribe to ELA's Facebook Group and Twitter Feed. 

Free - Thoughts

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

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

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

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

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

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

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

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

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

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

ELA Proposal Deadline 2010

The Education Law Association's annual conference for 2010 is in Vancouver -- that's right, Olympic-central at the moment. Anyway, if you want to go and get it paid for by your university, district or firm, you probably need to submit a proposal (guidelines) and the deadline for that is March 1.  The awesome thing about ELA is that they don't require long proposals - so, submit several. ELA will choose only one, but given that the conference is in Vancouver, the economy is down, and the intimate group that ELA always has been, you have a very good chance at success. I hope to see you there (preferably also in the Vancouver bars after the sessions!). 

Online Terms of Use Agreements and Teacher Liability

A couple weeks ago I presented virtually at EduCon 2.2 in Philadelphia (although I was in snowy Lexington). Jon Becker created the session called Stump the Lawyers. 

Anyway, they stumped us (sort of, I sheepishly admit, although certainly we being lawyers we had something to say, even if it didn't relate).

The question is what are the legal ramifications of this scenario (here is how Jeremy Brueck wrote it in his notes):

A teacher wants to do an activity with her 5th graders. The activity requires the use of online software, which either runs online or is a download. To access the program, the user has to agree to a "terms of use" agreement. Like many of these, it contains an age provision (typically 13) (here is a typical example: Blogger). The teacher proceeds anyway to (1) either create an account for the students or (2) encourages the students to check the "I agree to the terms of service" button anyway - or other variations on that same theme. Anyway, the point is that a 12 year old or younger student is using a website with a terms of service agreement that requires them to be 13 or older. Something bad then happens; either (1) the students violate the terms of service or (2) some type of injury occurs (think sexting) and the parents sue everyone. 

I had written up a long list of possible ramifications (and spent more than an hour doing so), but the legal components of each of these are so hazy that I think I would be doing everyone a disservice by making guesses without more research - so I pasted it in a Google Doc that I'll try to work up into some kind of article if I ever get time.

First, this gets into some very complicated areas of contract law, of which I am very much a novice. There are issues of infancy, misrepresentation (both intentional and negligent), coercion, and others. Depending on how it fell out, there could be 10 or more claims just on this contract issue. So, let's not go there. I will make the point that students have been held to clickwrap agreements (my concerns with that case) and that I don't think there would be much difference for teachers who have misrepresented. So, let's not go there for now.  Also, I think there are possible issues of identity theft/fraud, Acceptable Use Agreement issues, and possibly others. 

More to the point is the issue of what happens to the school and/or the teacher. Who can possibly sue each and what might happen? Both the school and the teacher are likely to be sued both by the software company and by the parents if there is that type of injury. In fact, there might even be a case of the school suing the teacher. Depending on what exactly happened, fraud might be involved which is clearly outside the scope of a teacher's employment and thus not covered by immunity statutes. So, personal liability for the teacher here is not out of the question. Also, the school is probably going to be open to liability for the acts of its teacher (of which they might try to recover against the teacher later). I don't see the likelihood of big damages awards here, but one can always be surprised. Also, I think the most likely scenario is that the contract is voidable by the software company, meaning that they will mostly likely just lock you out in the future. So, I don't see a ton of legal risk here, although clearly the law is against the school and teacher. 

So, bottom line here is that the teacher is likely to be fired and the school is likely to settle if, in the unlikely event, someone actually has suffered a substantial injury. 

What does this mean for teachers out there wanting to use these online tools?  ... Are you feeling lucky?

Yeah, probably not going to get caught. Even if you do, there is probably not going to be much in the way of damages. So, it's like running to stoplight at 2 in the morning. Know that it is wrong; know that you might get caught and lose your job; then, make your decision. 

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

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

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

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

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

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

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

State Agencies and the Space for Change

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

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

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

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

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

"National" Standards and the Art of Cat Herding

“Standardizing” anything without a forceful mandate is like herding cats. 

In the “national standards” movement, this appears to be what is being attempted.  The entities developing the standards have been hard at work over the past year, and they have recently released drafts of the standards for Language Arts and Math.  As I predicted months ago, the first questions out of the mouths of the state school board officers who have signed on with their intention, in principle, to adopt the standards is, “To what extent do we have to adopt them.”  The answer?  “Lock, stock, and barrel.”  So far, so good.  We can’t call them “standards” if they are not “standardized.”  But I do not see them remaining that way once the cats get loose. 

First, if you read the Education Week article linked above, you can get a sense that the state school board officers (at least out West) have already discerned that the wholesale adoption of standards promulgated outside the state is going to be . . . difficult to sell locally.  We have a strong tradition of local control of education in this country (or at least we think we do), and external mandates are always viewed as inherently suspect. 

The DOE's solution?  Take away the mandate—make it “optional” to adopt the standards.  In theory, we do this all the time in education.  You see, Congress has no constitutional authority to directly legislate in the area of education—the word does not appear anywhere in the Constitution, and Congress may only legislate in areas where the Constitution specifically grants it authority to do so.  However, the Constitution does grant Congress the power to tax and spend to  ". . . provide for the General Welfare of the United States.”  The Supreme Court has interpreted this provision to allow Congress to offer the states money, and attach conditions to such money—what we refer to as “conditional spending.”  By using conditional spending, Congress can induce states to “contract” with it to adopt certain policies that Congress could not directly enact.  Conditional spending, for example, is the constitutional foundation for NCLB and the larger ESEA that it amended, along with IDEA, FERPA, the Civil Rights Act of 1964, etc. 

Most importantly, because conditional spending amounts to a “contract” between a state and the federal government, if a state fails to perform its end of the “bargain,” a remedy readily presents itself—the federal government may simply claw back the funds (like rescission of a normal private party contract).  Because each state theoretically has a “choice” as to whether to accept the funds (and the conditions) in the first place, this arrangement does not offend federalism, so the theory goes.  This all sounds logical in the abstract, but in the real world, it’s complete nonsense.  If a typical state were really to reject federal funds in education, it would be reducing its education funding statewide by an average of seven percent—no state has done this in modern times.  Thus, conditional spending legislation is a powerful tool—the functional equivalent of direct legislation—and it is quite useful where Congress would like to mandate and standardize a practice nationwide (like educating disabled kids, for instance). 

However, we are emphatically not using this tried-and-true process for adoption of the “national” standards.  States are essentially free to choose to adopt them or not, and they will lose no existing funding if they refuse (although they may lose a few points in the “race to the top” competition).  If the state officers already have significant reservations after seeing only a draft, and if the official position on adoption is an inflexible “all or nothing,” though, then I predict that we will get either limited compliance or “lip service” compliance, and states will go back to their varied approaches pretty quickly.  I fail to see what will be “standard” about that. 

It is a familiar axiom that the only way to herd cats is to move their food.  In conditional spending—money is food.  We should probably move it if we really want “national standards.”

Cases about Kids

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

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

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

Mixed Early Results from Innovative Assignment/Integration Plan

In 2007, the Supreme Court declared the Jefferson County (Louisville) Public Schools’ student assignment policy – a plan that required an African American student enrollment of between 15 and 50 % in all non-magnet schools – to be unconstitutional (PICS v. Seattle School District).  The guidelines had initially been devised so that the district would comply with the mandate from Brown v. Board of Education to eliminate the vestiges of racial segregation in schooling, but by the time of the Court’s decision they were no longer court-mandated.  Rather, the district embraced the goal of diversity by maintaining the strict racial guidelines after having been freed from court supervision.  

The Court struck down this voluntary diversity plan as inconsistent with Brown itself.  Justice Anthony Kennedy, the crucial fifth vote for striking down the plan, wrote a partial concurrence that dared a district to come up with a plan for diversity that used race in a more limited way that would not offend Justice Kennedy – errr, the Constitution. 

JCPS took the bait and, drawing from a similar plan in Berkeley that was upheld in California state court last year, adopted a more nuanced student assignment plan that it hoped would maintain the diversity the district (and its parents, according to surveys) sought. 

In short, the new plan labels neighborhoods throughout the district as either Area A or Area B.  Neighborhoods labeled Area A would be those where:

(a) median income is below the county average;

(b) median adult educational attainment is below the county average;

AND

(c) the percentage of non-white students is above the county average. 

If any of these three criteria were not met, then the neighborhood would be labeled Area B.

Each school is then required to have enrollment between 15 and 50% of students from Area A.  The goal is to avoid high concentrations of students from lower socioeconomic, lower educated, and higher minority neighborhoods and to provide all students with more diverse schools.  Leaving aside the constitutional questions raised by the new plan (which I take a stab at answering here) and some debate about the strategic wisdom of pursuing integration (which I explicitly am not weighing in on), the big question is whether it will successfully maintain diversity in the JCPS schools.

The early results are mixed.  According to a January report from the district, only 42 of the district’s 90 elementary schools fall between the 15-50% Area A range.  The first explanation for this result is that students in grades 2-6 were grandfathered in – meaning no student would be forced to leave her current school to satisfy the new diversity guidelines.  While reasonable, this does not help explain why even just considering the 1^st grade (unaffected by the grandfathering), only 43 schools are within the range.  Some schools are close to the range, but others have very high concentrations (above 80%) on either end of the spectrum.  The district’s spin is that most schools are at least moving in the right direction.

On one hand, it is encouraging that so many JCPS elementary schools (nearly half) already have a significant mix of students from differing socioeconomic, educational, and demographic backgrounds.  However, the difficulty in even this district – one where there is both extraordinary public support for school diversity and demographics making meaningful diversity possible – of avoiding the isolation of high-risk students known to make effective education more difficult should give pause to advocates for integration as the primary tool for educational improvement.

It is, of course, far too early to judge the success of the new JCPS plan.  At the very least, the district is thinking outside the box to provide its students and its community with diverse schools and to provide a tool to other districts interested in and capable of achieving similar diversity in a constitutional way.  Stay tuned.