Second Circuit Strikes a Blow Against Teachers' Speech Rights

I noticed that Education Week’s School Law Blog had posted about a case from the  U.S. Court of Appeals for the Second Circuit that marks yet another disturbing use of Garcetti v. Ceballos in relation to speech claims by educators (a copy of the case is also available at the site).  Previously, I wrote about a state court decision involving faculty speech and the Garcetti decision.  In Garcetti, the U.S. Supreme Court held that a public employee does not speak for purposes of the First Amendment when engaging in communications made pursuant to carrying out his or her official employment duties.

In this case, Weintraub v. Board of Education of the City of New York, a teacher alleged that administrators retaliated against him on the basis of making a union grievance.  The teacher claimed that he lodged the grievance after school officials failed to discipline a student who threw a book at him on two occasions.  The teacher, among his claims, stated that superiors retaliated against him for filing the grievance, such as giving him negative classroom evaluations.  There were other serious issues involving the teacher, including allegations of sexual misconduct and assaulting another teacher, so I’m certainly not weighing in on the particulars of this individual’s fitness to teach.

But from a First Amendment perspective, this decision represents another extension of Garcetti that makes little sense.  In his lawsuit, the teacher claimed that the school district violated his First Amendment rights by retaliating against him for the filing of the grievance.  Two judges on the panel determined, however, that the filing of the grievance was made pursuant to the teacher fulfilling his employment duties.

Pointing out that the Supreme Court and lower federal court decisions had not restricted the types of communications covered under Garcetti to “required” employment duties, the court determined that the filing of the grievance was made pursuant to the teacher’s official job duties.  According to the opinion, the teacher filed the grievance because of concern over maintaining classroom discipline, which meant it was an issue that was “part-and-parcel” of his employment duties.

Judge Guido Calabresi’s dissent in the case highlights how the majority opinion interpreted “pursuant to” much too loosely.  More generally, the way that a number of lower courts have applied Garcetti seems to validate concerns that it marked a decision that would unduly chill the speech rights of public employees, including educators. I am among those that has not voiced a favorable opinion of Garcetti, and this case indeed highlights the kinds of problems that were predicted to arise as a result of the decision.  One only hopes that the Supreme Court will sooner rather than later provide guidance that, at a minimum, reins in the meaning that lower courts may give to what kinds of communications satisfy the "pursuant to" language of Garcetti.

AAUP launches new journal focused on academic freedom

The American Association of University Professors (AAUP) has launched a new online publication, the AAUP Journal of Academic Freedom.  I spent some time perusing some of the articles in the inaugural edition.  Not surprisingly, as a journal sponsored by the AAUP, it provides scholarly articles supportive of academic freedom.  Given the often strident debates regarding academic freedom and the generally unfavorable view of faculty members held in some quarters, the new journal will not be viewed by some as making a meaningful contribution to scholarship or to public policy debates related to academic freedom.

As a professor, I admit a personal interest in academic freedom, and as a scholar who focuses on higher education issues, I also support the concept of academic freedom.  So, these views and concerns predisposed me to having some warm fuzzies for the journal.  And after looking at some of the articles, I have to say that I came away with a favorable impression.  The articles I sampled were well written and informative and reflected several disciplinary perspectives.  Even if you don’t happen to feel warm fuzzies for the AAUP or the concept of academic freedom generally, the articles are thought provoking and represent solid scholarship.  So, for those with an interest in academic freedom and faculty issues, I suggest keeping the journal in mind.  

Zakaria on Education

He really is very close to "on the same page" as me on education - I have posted earlier that I really liked his book as well. I can just tell that we think alike and approach the issues in similar ways, so it should be no surprise that I really liked his latest video in prepartion of for the State of the Union tonight on education. Enjoy:

Ethics Codes ... It's a concept, it's a law, it's a bird, it's a plane, it's ... Not that Important

Alabama doesn't know what do to with its teacher Code of Ethics. The Legislature doesn't like it, nor does the Unions. The State Board of Education created it and the Governor likes it, and thus today he vetoed a Legislative effort to block the Code of Ethics from entering regulation. 

These Ethics Codes for Educators are peculiar entities. Sometimes they are law, and sometimes they are not. Most states have a code of ethics in some form, but not all states choose to put them into regulation. If they are put in regulation, then they are law, meaning the contents are not really ethics anymore, they are mandates. 

In other fields, such as law and medicine, there is a greater distance between regulation and the ethical standards. The AMA produces the Code of Medical Ethics and the ABA produces the Model Rules of Professional Conduct. Some of this is replicated in state law, but not all of it. Of course, in education there is no AMA/ABA equivalent, so this kind of stuff gets promulgated by state entities instead. I would address business ethics, but then we all know that didn't work out so well. 

So, the question is how much does it matter legally who created the Ethics Code or where it sits? And, I think my answer is not all that much. Let me explain ...

First off, ethics codes tend to be very vague. In fact, that's the Alabama Education Association's chief criticism. But, vague language in law is frequent ... and frequently ignored. It can have negative implications, but they are usually sporadic. 

Second, read the Alabama Educator Code of Ethics - 90 percent of the things they say are wrong are already illegal anyway. So ... what's new?

Third, correspondingly, in my experience these Ethics Codes only really have teeth in extreme circumstances. As in, you lose your job anyway, and you lose your license. In situations where a regulating body is going to seriously consider revoking your license, the person has already probably screwed up their life substantially, including frequently criminal behavior. Knowing the kinds of cases that our local educator regulatory body prosecutes every year, they are usually only in unquestionably inappropriate circumstances that they take any real disciplinary action. Thus, whether the Ethics Code is in regulation or in policy or in guidance documents, it doesn't really matter all that much. 

Fourth, all of this is somewhat irrelevant anyway. These Ethics Codes are enacted as if they are Superman, come to solve all our ills. But, let's face it. A dumb teacher is a dumb teacher, whether or not there is an ethics code that tells them not to be dumb. Dumb teachers (those likely to do something highly unethical) are not going to read or worry about the Ethics Code anyway and smart teachers (those that do live their life ethically) didn't need it in the first place. Their greatest functions are ideological and CYA oriented. That Professional Standards Boards or Education Departments can SAY they have an ethics code is far more important than the likely impact on teacher behavior of handing out a pamphlet to pre-service teachers. 

So, I don't get all the hubbub over these Ethics Codes. Teachers, on the whole, are an extremely ethical group anyway (I've never heard of an educator ponzi scheme, for instance). So, I think it is a bit of a waste of political effort, especially right now in the face of Alabama's persistent mid-year budget cuts. I know we have to fight over something, but it really does seem unethical to fight over and Ethics Code, doesn't it? 

Budget Shifting ... Carefully

Here's a legal topic that is happening now that might not be getting a lot of attention - budget shifting. Particularly, schools shifting money from earmarked funds toward other priorities. There was a good example out of Ohio today where some IDEA funds were shifted toward general priorities. Ohio cleared a provision that blocked local special education funds from supporting other expenses and, thus, schools all over the state have shifted money originally earmarked for special education students toward other needs. 

This example from Ohio gets at a larger issue that's happening right now in schools were budgets are tight and administrators are getting "more creative" in moving money around. This is especially true because of the bifurcated school funding system whereby revenue enters the school in several different funding streams, each of which has restrictions on its spending. As those funds are protected differently by state legislatures, administrators are forced to move money around to compensate. For instance here in Kentucky the Legislature and Governor have done a good job protecting the SEEK fund (the general education fund), but have not protected transportation, professional development, extended-day services, etc. The kids still have to get to school, so administrators are forced to shift these funds. 

But the rub is that there are frequently pretty specific rules about how such money can be moved around and almost assuredly lots of administrators right now are violating a lot of these rules. Not only that, but as Ohio showed, entire states may also be taking actions that get them sued, if nothing else. 

So, keep an eye on it. School budgets are a black hole even for well practiced administrators, so it's hard for the general public to know what is happening. But, as information leaks out look for more lawsuits to ensue. 

New Tennessee Higher Education Bill Ties Funding to Graduation Rates. A Good Thing? Maybe . . .

The Tennessee Legislature has passed a new higher education bill with some interesting reforms.  Just as my home state of Kentucky is considering legislation that would make transfer from two- to four-year institutions easier, one part of the legislation in Tennessee aims to standardize transfer.  I found the most intriguing component of the new legislation, however, a change in funding for public colleges and universities.  Funding for institutions will now be tied, in part, to how well they do in terms of retaining and graduating students, as opposed to just the number of students enrolled. 

With this move, I think Tennessee has embarked on an approach with both promise and peril.  The promise is that the legislation might help nudge the state’s public institutions in a positive and meaningful manner to focus on issues related to student retention and graduation.  Of course the danger is that institutions’ concern with graduation rates will result in watered down academic standards in an effort to retain (appease) students.

The challenge for Tennessee public colleges and universities will be to focus on enhancing retention and graduation efforts in ways that align with sound educational practice and promote academic quality.  Given the difficult budgetary times in which we exist, however, this may not prove an easy task.  Doing things like making sure there are sufficient numbers of academic advisors for students and making improvements to student support services in general may well entail additional costs and also potentially cause friction by challenging entrenched institutional practices.  A path of lesser resistance might be for institutions to further cater to the “student as customer” concept that presents some serious challenges for higher education.  For instance, instructors may end up feeling increased pressure (especially non-tenured faculty or those working off the tenure track) to avoid failing students or to assign less challenging assignments in order to obtain favorable student evaluations.

I’m certainly not saying that such a situation will develop in Tennessee, and I am an advocate of efforts to improve the educational experiences of students, but a focus on output (graduation rates) does not automatically equate with improved educational outcomes.  It will be interesting and informative to observe how institutions in the state respond to this legislative initiative.

90 Lashes for a Cell Phone in Class + Prison - Literally

Sounds like a joke, doesn't it? 

It's not. 

And, it happened in a country we are closely allied with, Saudi Arabia. 

Why do we ... ? Oh, never mind I guess, I think we all already know the answers here.  

The upside though? One less county our students are going to have to compete with in the future. I guess they don't bother to stop and think about what happens when the oil runs out. 

h/t @stevejmoore    

"Rose at 20": Foreword

I just posted to SSRN my latest draft of the Foreword to the "Rose at 20" Special Feature issue forthcoming in the Kentucky Law Journal.  The issue, which includes three featured papers by distinguished school finance scholars Bill Thro, R. Craig Wood, and Bill Koski, will be out in Spring 2010 as Issue 4 of Volume 98 of the Journal.  Here is the abstract of the Foreword:

In this Foreword to the University of Kentucky’s “Rose at 20” Symposium, I seek to introduce the three featured articles, as well as to identify two major paradigm shifts in school finance litigation that grew out of the Kentucky Supreme Court’s decision in Rose v. Council for Better Education.

Although the Rose decision is primarily noted for the success of adequacy theory as a strategy for proving constitutional harm, less noticed doctrinal innovations in Rose lay in the court’s treatment of education rights and the remedies warranted for their violation. As to rights, the Kentucky court was the first to enforce the right to education as a positive or affirmative individual right. As to remediation, the Kentucky court ushered in the still-dominant judicial view of separation of powers as an independent limit on judicial review at the remedial stage of litigation. These two doctrinal changes distinguished Rose from the litigation that preceded it, and they remain relevant today.

You can download the latest full-text version here. 

"Cyber-bullying" Redux--The AALS Panel

I have posted in this space once before regarding the recent phenomenon of "cyber-bullying."  I have come to believe since then that tort-based law provides redress for most of what we generally term "cyber-bullying," and that much of what we use this term to describe is (and should be) outside the reach of school regulation. 

At the recently-concluded AALS conference, however, a panel of very distinguished scholars (including Lyrissa Lidsky, my torts professor from UF Law, whose name was inadvertently left off the official program) discussed the question whether students who engage in cyber-bullying, cyber-slamming (defamation), and/or cyber-stalking while in law school should be prohibited from sitting for the bar exam, due to an inherent lack of "character and fitness for the profession."  (No lawyer jokes in the comments, please--that's low-hanging fruit).  The panel also considered how, if at all, nefarious social networking conduct should be addressed, in light of First Amendment concerns. 

I found the discussion very illuminating.  Interestingly, the discussion turned very quickly from considering speech with an independent tortious or criminal character (threats, defamation, false light invasion of privacy, and stalking) to speech that does not violate a law, but is nevertheless racist, sexist, or incredibly boorish (the boorish example was one of a Florida lawyer suspended from practice for calling a presiding judge a "witch," if I remember correctly).  The former category (torts and crimes) seemed to garner agreement among the panelists that the bar should consider it as (non-dispositive) evidence of bad character and/or fitness, if it is properly and certainly established as the speech of the specific bar applicant.  I am not in favor of categorical rules that have the effect of limiting speech (even someone who shouts "fire" in a crowded theater could be making an honest mistake, after all).  Thus, I was pleased to see that none of the panelists appeared to favor automatic exclusion from the bar for any conduct that we decide to put under the nebulous label, "cyber-bullying." 

The latter category, however, garnered fewer conclusions and was left open at the end of the discussion.  Difficult questions were raised: Can a racist or sexist (as demonstrated by virulent online comments) nevertheless be a good lawyer?  Is "judgment" (defined as judging what one chooses to say publicly) part of "character and fitness"?    Can we trust character-and-fitness committees with such determinations?  Do character-and-fitness concerns trump First Amendment rights (including the right to be a racist, a sexist, or a boor)?  I do not have ready answers to these questions, but they illustrate how delicate the non-exam portion of admission to the bar can be, and how introducing a vague concept like "cyber-bullying" into the mix could prove much more difficult than it might seem. 

Guns at School - Should the Courts Get More Involved?

Kid goes hunting in the morning. Puts gun in truck. Drives truck to school. Authorities find it. Kid expelled. Lawsuit ensues. Community upset. 

This is a pattern that gets repeated several times a year, especially in rural America. The latest one getting national press, as Scott M. passes along, is just north of Sacramento in Willows, CA. Pretty much the same story with the additional twists of the student parking off campus and the NRA getting involved to represent the kid (a pretty bold political move, but one that will sit well with most of rural America). Here is the student, his mother (and Fox) making their case.

Let me start this by saying I did this when I was a kid ... on at least a few occasions. Not intentionally. Not maliciously. I just didn't think about it and even if I had, I wouldn't have known it was that wrong to do (this was before I decided I needed to do something with my life, and thus, pay attention). Hunting and guns were part of our community. I shot my first gun when I was probably around 7 or 8 and I got my own gun around 14 (an 870 Remington pump action, which has served me well over the years, by the way). Anyway, suffice to say that if our Superintendent had conducted similar drug dog searches on any given day, at least 5-10 of my fellow classmates would have been in trouble - so, he overlooked it, intentionally.

Okay, that was pre-Columbine. Pre-Paducah. Before all of that group and thus before zero-tolerance policies really took hold. It was also before drug-dogs really became a weapon, before metal-detectors were widespread, and before school-resource officers were all over the place. It has only been about 15-20 years ago, but a lot has changed in those years.

So, I'm conflicted.

The easy post for me to write here is anti-NRA and pro-expulsion for this student. Nice and tidy, one policy for the whole U.S. or at least the whole state, error on the side of caution, and let's call it a day.  On the other hand, it would be easy for me to argue that these urban-oriented policies are just another attack on rural America. To point out that kids used to leave their guns in the corner of the one-room schoolhouse. That this is very different than this. And, that kids like me who grew up with guns respected them more, and thus, I guess, wouldn't shoot people. A third easy argument is to argue for administrative discretion. That local administrators know the local needs and thus should set the local policy. If they don't, that is the whole point of school boards anyway, right?

All of these fail. What works in San Francisco doesn't necessarily work in Willows. 2010 is not 1910. And, I don't really know any serious educators that would totally trust school boards with this kind of decision.

So, I'm conflicted. But, I think rightly so because all of these arguments result in lives ruined. There are no good answers here. There are no clear lines and folks that argue there should be don't get the whole picture, in my view.

But, when there are no clear lines and no good answers, that's when our judicial system really steps up. It is these very tough issues where collective judicial action might navigate us though it in the least harmful way. So, I support the NRA lawsuit in so much as it causes us to consider these questions more deeply in each of these different contexts. To take 4-5 days and lay out the arguments and witnesses and experts. To consider it in California, in South Dakota, in Missouri, in Iowa, in Washington, in Pennsylvania, and everywhere else because 6 percent of students report carrying a weapon to school - a number not skewed by race, but a number historically higher, but dropping, for rural areas (although NCES needs to ask that question again).This kind of judicial intervention is going to cost us, of course. Judges are going to make some dumb decisions and we are going to spend a lot of tax-payer dollars that a strict zero-tolerance policy wouldn't require (although this law review makes a good case that we were spending them already anyway: 40 Tex. Tech L. Rev. 325). 

But, I think judges should be more critical of these policies. More demanding of legislatures. I support the law being more complex, because the issue is currently more complex than the law allows. We have to remember that we are still new at regulating student behavior in this way. When my grandpa went to school literally in the one room schoolhouse, guns were permitted. When my dad went to school, guns were common. When I went to school, guns were overlooked and when my brother went to school, guns were banned. We have changed a lot over the years, perhaps for better. But those changes are not clean breaks and our national clean-break, zero-tolerance policy has resulted in a lot of ridiculous outcomes.

So, while I think the NRA is probably going to lose this case (and rightly so under our current law), I support them bringing it, even if just to make a statement and to force us to consider the questions more deeply. 

Educators - Expect to be Recorded

A controversy has erupted in Mississippi over the recording of school board meetings. I've posted on this before at the behest of Wes Fryer, so I'll just refer you to that (although I should probably do an extended version for School Boards Journal or something). 

Bottom line: if the recording is not disruptive and the content of the meeting is not private, go for it and don't feel like you need to hide the camera. I don't know Mississippi law, but that is the most likely outcome in this case as well. 

This is 2010. Devices that can record video and audio are everywhere (this is my favorite) and, frankly, if you are a school board member you should expect to be recorded - even in rural Mississippi. In fact, there are a slew of school boards doing their own recording (why not save folks the trouble and help get your message out? Your students would probably love to do it for you!). 

If you are a teacher, you should expect to be recorded.

If you are a principal, you should expect to be recorded. 

If you are a professor, you should expect to be recorded. 

It's just the world we live in. Get used to it. 

Building the Technology Movement Into Law

Superb post by my CASTLE partner Scott McLeod over at Dangerously Irrelevant on:

Creating the new schooling paradigm: Educational technology policy priorities

Right now he is taking submissions for other policy/legal priorities for moving our school law into the 21st Century, as well as our schools. So, do me a favor and go over there and leave what you think should be one or a few policy priorities. We'll aggregate them and he'll post a second list soon. These policy priorities, though, will also factor into the core work of CASTLE moving forward (perhaps suggesting model legislation and whatnot) so we could use all the good ideas we could get at the moment.

Recent (and troubling) State Court Decision Involving Faculty Speech

This past month, a state court in Idaho dismissed the suit of Habib Sadid, a tenured professor at Idaho State University (ISU), who claimed that he was retaliated against for criticizing the actions of university officials.  Among his claims, Sadid argued that the university’s actions violated his First Amendment rights.  A copy of the decision can be found on the American Association of University Professors' (AAUP) website.

The case marks yet another decision in which a court has relied on Garcetti v. Ceballos, 547 U.S. 410 (2006), to hold that a professor had not engaged in speech protected by the First Amendment.  In Garcetti, the Supreme Court held that a public employee engaging in communication pursuant to carrying out his or official duties does not engage in speech for purposes of the First Amendment.  But, the Court left open the question of whether the decision applied to speech by faculty members.  Still, several courts have applied Garcetti to faculty speech with no reasoned consideration of the extent to which, if any, that the case should apply to such speech.  In Sadid’s case, for example, the court relied for persuasive authority on a federal district case, Hong v. Grant, 519 F. Supp. 2d 1158 (C.D. Cal. 2007), where the court also reflexively applied Garcetti. 

The interesting (and troubling) twist in Sadid’s case involves the court’s determination that he did not write newspapers articles critical of the university as a private citizen.  The court held that the “tone” of the letters was that of an employee, deeming it especially important that he identified himself as an ISU employee.

The case was another example of how several courts have used Garcetti in faculty speech cases with no consideration of the fact that the Supreme Court left the door open of whether the decision should even apply to faculty speech.  Even proponents who argue that First Amendment protection for academic freedom should, at most, accrue to institutions versus individual professors have not embraced the idea of applying Garcetti to faculty speech.  The case especially touched a nerve with me since I wrote a recent article on the issue of individual academic freedom under the First Amendment with a special focus on the Garcetti decision.  Feel free to check it out if you’re so inclined.  The article is:  A Confused Concern of the First Amendment: The Uncertain Status of Constitutional Protection for Individual Academic Freedom, 36 Journal of College and University Law 145.

Back from AALS

I just returned from the annual meeting of the Association of American Law Schools (the AALS) in New Orleans.  For those of you not familiar with the organization, it is the primary professional academic organization on the law side (like AERA for education).  The conference spans several days, during which time many papers are presented, many panels convene, and many hours are happy. 

The AALS also includes an Education Law section, which puts on a program at every meeting.  I was fortunate enough to be chosen for this year's program, and I presented a work in progess analyzing the provisions of the Louisiana Constitution relating to education in the context of the reforms now occurring in the Orleans Parish Schools.  The other presenters were Rob Garda of Loyola New Orleans Law, who gave a great overview and predictive analysis of the reforms viewed from the ground level in Orleans Parish, and Daniel Kiel of Memphis Law, who analyzed the current situation in Orleans from a federal equal protection perspective.  Stetson Law's Mark Bauer did a great job organizing the program, and we were proud to elect out new leader, Kristi Bowman, of Michigan State Law, at the conclusion of the presentations and discussion. 

This was my first time at the conference, and I will be back.  More to come on another panel that I attended as a spectator . . .

What if ...

What if education reporters were like sports reporters? After years of being lauded by the very same media, how many of our "performance enhancing" (not cheating on those tests, mind you) superintendents would be under collective fire until they held a tear-filled press conference?

Why Charter Schools Bother Me

This case really illustrates why charter schools fundamentally bother me. Here is a summary of it (I did this for the School Law Reporter, and since I am putting this one out for free, do me a favor and consider joining ELA):

Northern Kane Ed Corp v. Cambridge Lakes Educ Ass'n, 914. N.E.2d 1286 (Ill. App., 4th Dist., 2009). A teacher union’s ability to organize and represent the teachers of an Illinois charter school was at issue in this case. Reversing the Illinois Educational Labor Relations Board, the appellate court found that the charter school authorizing statute excluded the provisions giving bargaining rights to public school teachers. The court interpreted the statutory provision reading, “[a] charter school is exempt from all other state laws and regulations in the School Code” as including the provisions of the Education Labor Act, while the union argued that the Education Labor Act was a distinct law from the School Code. The Court did note that Illinois subsequently passed a separate law providing coverage of the Education Labor Act over charter schools, but that the law could not be applied ex post facto to the school district.  

So, a legislature, in this case Illinois, writes a law saying "exempt from all other state laws in the School Code" without really defining anything else.

Um ... then what?

Actually, I'll tell you what comes next ... a whole bunch of lawsuits like this one. And we're just at the tip of the iceberg on these charter school lawsuits. This is going to be an enormous mess legally.

Here are the questions, for instance: Did the legislature intend to give charter school teachers bargaining rights? Did it not? What's the legislative history say? Should we pull out some statutory interpretation rules? What does public policy prefer? Should judges be making these policy decisions in the first place? And, does it stop there? What about due process elements for teachers? What about tort immunity laws? What about workplace safety laws? What about, what about, what about ... it's sort of endless.

Basically, courts (largely ignorant when it comes to sound educational policy) are left to guess and fill in all the holes because a legislature got ahead of themselves in writing these charter laws. It has taken us a hundred years to fill in the details of school law in the United States (fifty times over, in fact). To try and just sweep that away in one fell swoop is irresponsible at best. Sure, that 100 years of law is an enormous bureaucratic hurdle and it hampers educational innovation. I get that. But, every single one of those laws (even crazy ones like this one, see section c) is there for a reason to protect some kid, some teacher, some parent, some administrator and the schools themselves. If you don't like those rules, change them. Tweak them. Reform them. But, don't just try and get rid of them... all ... at once. 

I get that everyone wants to blame the law. It's an easy and politically expedient target. I get it. But, the law is not the problem most of the time. The law is not what is holding our schools back. There is a lot of flexibility already built into the system. Certainly enough to make massive changes as a school leader and there is flexibility in our democratic system that we can change the laws when they get out of date. 

Charter schools are a quick fix, a cop out in some ways, and like any other quick fix they frequently cause more problems (and litigation) than just putting in the hard work to fix the law in the first place would have done. This case is just one small example of what is likely to continue to be a growing trend.

Body Scanners in Schools ... Tick, Tock

Photocredit: John&Julie CHow long until these new body scanners enter the school house?

It's probably inevitable that some school will do it sooner or later, so let me try to head this one off now.

First, ethically ... c'mon. Your fooling yourself if you think scanning millions of kids this way is worth it, even if you do catch a couple extra weapons entering the school.

Second, Britain found an issue with these body scanners and child pornography laws, as the images created by the scanners may be detailed enough to amount to a "graphic image" of the child. I haven't compared our laws, but I would expect similar issues.

Third, more fundamentally, consider this summer's Supreme Court case of Safford v. Redding.

We do mean, though, to make it clear that the T.L.O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.

Given that this full body scanner reveals quite a bit of a students "intimate parts," I think schools will have a very difficult time making the case that such a scan is legal. Remember, the bar here for schools is fairly high. The full body scanner cannot be considered a search at all for this to work in place of metal detectors. Metal detectors are not a search, per se, because metal detectors only examine the airspace around the student and students have no expectation of privacy in that airspace. But, I think it would be a difficult case to say these full body scanners function under a similar legal theory in schools (although I could see how the case would be made). In my opinion, the difference is not one of degree it is one of the expectation of privacy. No part of one's body is revealed when passing under a metal detector that wouldn't otherwise be revealed not passing through the metal detector. But, with the full body scanners, I think something additional, something not intended, is revealed. Thus, the legal theory that this is not a "search" doesn't really hold water and if it is a search, it must meet the reasonable suspicion legal test.

Now, how I could see these used is possibly in place of a strip search once reasonable suspicion has been established. Certainly, I think, it is less of an invasion of privacy to examine a student's body through a scanner than actually making the student physically remove his or her garments. So, that could be a legal foothold for these body scanners. But, even then, I would heavily warn against it. While it might be technically better than a physical strip search, the body scans are very close to strip searches anyway, which, after Redding, require some pretty high danger thresholds to meet. I think putting them in the schools would just encourage school authorities to use it against pretty clear discouragement from the Supreme Court.

I'm fairly confident that we'll have to deal with these in the relative near future if for no other reason than airports represent a fairly small market and schools represent an enormous market (and there are some pretty big players manufacturing these). But, unlike metal detectors, the legal justification for these is simply not as strong. So, we'll see, but schools would be well served to play a wait and see approach with these. Not only may the technology become less intrusive over time, but assuredly there is going to be a decent amount of litigation coming out of the transportation sector, so we should probably wait and see how that plays out first.

Putting it All Together - Education, Technology & Law

Finally this semester I get a chance to pull it all together in writing ... and I'm excited. 

It's been tough until now not only because I have been busy with lots of other important stuff, but also because it took a lot of time to learn how to frame the technology argument and embed it within a legal argument. Most folks natural inclination toward law is that it is typically conservative and frequently anti-innovation. And, the natural response to that is anti-law (and that's where I was for a while). But, while that is true in a lot of ways (example), it is not entirely accurate. Many laws may be written in a way that minimizes technology's impact, but underlying those laws are other laws that are in fact quite friendly to technology. And, at the bottom of our legal system, our Constitution is actually quite friendly toward technology, innovation, change, adaptation, etc. It's a document that has survived and prospered for 200+ years now, so I think it can probably handle these latest changes as well. It's just a matter of how we interpret those words in light of our new economy and societal situation. 

The idea is that you can hook up the legal literature (from judges, law professors, legislators, etc.) related to education with the emerging literature on twenty-first century learning and business. It's clear by now that this Internet thing is sort of important. And, that global awareness and competitiveness is essential. So, once you don't have convince people of that so much, then you are free to apply these ideas to the legal literature. In fact, that is where much of the debate is likely to turn in the near future. Once the ideas gain acceptance (and, granted we are not all the way there yet but the Big Fish are close), attention must turn to implementation within the existing legal structure. And, for that, we are going to need some help. And, there you have it. A writing niche for me. 

So, you'll probably be hearing a lot of that argument from me over the coming months and years. 

The California Higher Ed. Funding Amendment

I sort of like it. It makes the right kind of statement. Here is the official summary. And here is Gov. Schwarzenegger's rationale:

California universities are known around the world as the crown jewel of California’s education system. Until recent years, California’s priorities were clear: the state dedicated approximately 10 percent of its General Fund to higher education and just three percent on prisons. Today, California spends more than 10 percent on prisons and seven percent on higher education.

It was delivered today in his last state of the state address. Of course, Mark Yudof, the President of the University of California system, likes it and sent around this analysis, including this chart. 

The issue of prison spending to higher education funding was an interesting one to me, so I decided to check out what other states are spending. I found this excellent data from Pew which PBS put into a map (see page 15-16 & 31 in the Pew Report). Notice there is a discrepancy between what Pew says about California and what the Governor says, but I assume that is easily explained (if someone wants to do the research to prove either way, please let me know). But, I wanted to view the data differently though for all states, so below you can see the result. 

This is a heatmap of the ratio of $1 spent on higher education to prison spending. You can see the range is from some states like Minnesota spending around $0.20 on prisons for every dollar spent on higher education to Vermont, Michigan, Oregon and Connecticut which spend over a $1.00 on prisons for every higher education dollar (if you want to see the exact numbers, see page 16 and 31 of the report). 

But, as if that is not concerning enough, it is the growth in overall prison spending that might be the most concerning (p.15): 

In 1987, states collectively spent $33 billion of their general funds on higher education. By 2007, they were spending $72.88 billion, an increase of 121 percent. Adjusted to 2007 dollars, the increase was 21 percent. Over the same timeframe, inflation-adjusted corrections spending rose 127 percent, from $10.6 billion ($19.4 billion in 2007 dollars) to more than $44 billion. 

So, I sort of like California's idea here. Surely this will make legislator's jobs more difficult, but so be it. That's what constitutions are for and using the constitution in this manner strikes me as appropriate (although I know there will be some who disagree). All this "tough on crime" political speak has got us in a situation where to be hard on crime it requires legislators to be soft on schools. I applaud California's efforts to draw the line and hope more states look into their funding priorities in a similar manner.