Data Security

If the U.S. Government (and basically every other government combined) can't stop the release of some of our most closely guarded state secrets in this era of the Internet ... how are schools ever going to comply with FERPA? It's one thing to protect a physical piece of paper ... it's another entirely to protect 0's and 1's floating in space. 

Just asking. 

Another Pledge of Allegiance Case

Over at the Constitutional Law Prof Blog, Professor Steven Schwinn reports on a recent First Circuit decision upholding a New Hampshire law that requires teachers to lead their classes in the Pledge of Allegiance (with a silent opt-out right for the students) against challenges based on both the Establishment Clause and the Free Exercise Clause.  The decision is very interesting, in part because the plaintiffs are represented by Michael Newdow, who was the plaintiff in the last Pledge of Allegiance case to reach the Supreme Court (Elk Grove v. Newdow).  The difference between this case and Newdow is that if this case reaches the Supreme Court, the Court will have to decide the merits, as there is no standing-based backdoor through which the Court can escape. 

Site Updates

Just a few site updates to tell you about. Nothing major. 

1. Cleaned up the Blog Roll. 
2. Changed the "Job Board" to "Job Advice" (not enough time to check them anymore). 
3. Cleaned up the Editors list a bit - thinking about adding a few more. 
4. I've scaled down the Open Courseware pages. 
5. I've pulled back the "Find Information" section of the site for now. I hope to within the next year announce a replacement that we are working on with the Education Law Association.

That's it. Mostly, my days are consumed with running large scale projects, large writing projects, managing a new crop of graduate assistants, and various other things that take an assistant professor's time. Thus, I can't devote the time to all the different features of the site that I used to be able to (back when no one knew who I was :). 

I'm pleased with the development of the additional editors to the blog and think the best thing to do in the near term is really focus on the quality that they are bringing to you on a daily basis. That's the core asset of this blog and, for the time being, that is what we want to promote. 

As always, let me know your thoughts. 

CA Supreme Uphold In-State Tuition for Undocumented Students

The California Supreme Court bucked the general anti-immigrant trend of recent months by upholding the state's policy of providing in-state college tuition at California colleges and universities for undocumented students who spent their final three years of high school in a California high school.  The San Francisco Chronicle's article is here; LA Times here.

The issue has been generating a fair amount of discussion lately.  In 1982, the US Supreme Court ruled in Plyler v. Doe that states could not exclude undocumented children from public primary and secondary schools; the obvious next question was whether states could exclude such students from public higher education.  The California case answers a secondary question - can a state (that, like California, has chosen to allow enrollment of undocumented students) charge only in-state tuiition to undocumented students living in the state, albeit illegally?  The California Supreme Court says yes; the plaintiffs - a group of citizens living outside of California (who therefore do not receive in-state tuition) - vow to appeal to the U.S. Supreme Court.  There are interesting questions of federalism, similar to those raised by Arizona's recent immigration legislation, but from an educational perspective, the arguments from both sides are similar to those raised in Plyler.  The most significant difference is that Plyler involved a wholesale denial of education, whereas this case is about how much people have to pay for education - a distinction which may have constitutional significance.

Look for more on this topic to come up at the AALS annual meeting in San Francisco in January - the Education Law section's program (co-sponsored by section on Immigration Law) is on the topic "Immigration and Higher Education."

Emerging Themes from the Office of Civil Rights

I'm also sitting in the ELA general session with Russlyn Ali.  I agree that the information and the exchange of ideas in the room has addressed many important issues in education policy.

Here are a couple of hot topics:

Racial segregation in schools.  OCR is concerned about the comparabiility of resources between districts, especially in light of the fact that many racially isolated districts aren't providing key resources to students.  They are working to develop tools for schools that want to voluntarily integrate.  Secretary Ali commented that she believed diversity is a compelling interest and that integration in diverse environments is good for everyone.  She then cited research that kids from racial and ethnic groups generally do better in integrated schools than in racially isolated schools.  Questions from the audience asked about the benefits of neighborhood schools and about the negative effects of racially isolated housing patterns.  Secretary Ali said OCR is working with other federal agencies to address some of these issues.

Strong teachers.  The OCR is working to transform the idea of what makes a great teacher.  It is more than just credentials and a college degree.   The goal is to define strong teachers using student achievement as a factor.  Secretary Ali acknowledge that there were real contractual issues around this issue and that teacher collective baragining agreements would have to be examined in order to make this kind of change.  When a superintedent from the audience asked a question about incorporating a well-rounded approach to measuring student achievement, the Secretary said that OCR would support local districts in coming up with new measures that better capture the whole student experience.  We need a picture of student growth that measures the whole development of the child and tools that have multiple measures.  It is the OCR's position that the locality is the best place to decide what makes a strong teacher a strong teacher.  But the Secretary did call for the wall separating teacher and student data be removed and to make the tests much better, such as improving their focus on critical thinking.

Title IX.  Secretary Ali mentioned that access to STEM courses for girls could be protected by Title IX like athletics.  I haven't heard a lot about this issue, so this is something to look into.

There was a lot more then this, but these are only the highlights.  I agree with Justin that if you are interested in these issues, consider joining ELA and coming to next year's conference in Chicago.  In the meantime you can follow education law and policy issues in this blog and on the ELA website.

Why I Love ELA and Why You Should Join

Just in the third general session with Russlynn Ali, Assistant Secretary in charge of the Office of Civil Rights. As she opened it up for questions, a lawyer with a very large and important (and fun to hang out with) education law firm asked a question about OCR enforcement policies, as several districts that he is working with are concerned about OCR's new stance on bullying (as am I). Next question was from a professor about a district in his area that has an NAACP investigation ongoing. The NAACP lawyer then took the mike and pushed OCR on the other side for greater enforcement.

Get what is going on here? ELA is a backchannel for the nation's education system. It is in rooms like the one that I am in right now where the nation's future education policy is determined and litigated.

That's why I love ELA ... and if that interests you ... then consider joining us next year in Chicago.

Louisiana's Constitution and Education Reform

I have posted before about education reform in New Orleans since Hurricane Katrina.  In my most recent entry, I mentioned two law review issues that focus on the education law issues in the New Orleans reforms.  I just posted my contribution to one of these issues on SSRN.  My contribution addresses the unique education provisions of the Louisiana Constitution from the perspective of those thinking about state constitutional design, using New Orleans in part as a mini-case study.  You can download the full-text draft free of charge here.  The abstract appears below:

State Constitutional Design and Education Reform: Process Specification in Louisiana

In this article, I examine the role of state constitutional design in shaping the challenges of educational reform and the enforcement of affirmative state constitutional duties. I begin with a brief discussion of state constitutional design in general, and I expand this discussion to include the specific drafting approaches used in promulgating state constitutional education duties. I continue from this point with a review of how these provisions have been used in school finance litigation – the principal vehicle for enforcing education rights in the states – and how they have been modified in response to such litigation.

Following this analysis, I engage in a limited case study of constitutional design in Louisiana. I begin by outlining the education provisions in Louisiana’s current state constitution. I review both the drafting strategies used in the initial education article, and the unsuccessful school finance litigation that gave rise to the most prominent recent changes to the education article. I conclude that Louisiana’s reformers have chosen a decidedly unique, process-oriented path in amending Louisiana’s education article, as compared with reformers in other states, who have attempted substance-based reforms to their states’ education provisions.

Based on this case study, I present both general and situational arguments in support of the specification of process-based limitations as a strategy appropriate for drafting or amending state constitutional education articles and other affirmative-duty provisions. I base the general argument on the unique features of state constitutions and state governments, which leave courts well-positioned for review of legislative processes in pursuing affirmative constitutional duties. I present the situational argument in light of the current funding realities in the New Orleans school system. I argue that the specific, process-based limitations in the Louisiana Constitution could prove very useful in the coming years as federal relief funding largely disappears, and Louisiana is left to fund the state’s schools based mostly on state-derived revenues. Based on these arguments, I conclude with the suggestion that those drafting and amending state constitutions containing affirmative legislative duties should consider specific, process-based limitations as a useful element of state constitutional design.

Technology's Value at ELA - A New Challenge

This year, I think it is time to take stock of the emergence of technology as a specialty topic of education law. And, I'm happy to report, that our group of legal scholars is recognizing the importance of addressing how technology is driving legal challenges. Not only are there more sessions at ELA addressing technological challenges, but the attendance at those sessions is increasingly very high. The session I attended this morning was standing room only with about40 people listening in. 

ELA Technology Presentations 2004-2010To get a sense of the rise of the rise of this specialty topic, I took a quick look at the past seven ELA conferences and counted all the sessions addressing technology. The results are in the chart. As you can see, there is a very positive trend toward more presentations addressing these issues. That makes me so happy. The nation's legal scholars are recognizing the importance of this digital transition.

But, let me present the next challenge to our nation's legal scholars. While the quantity of the presentations (and papers) are going up, the content seems to be stuck on just a few legal topics. In particular, the issues of student speech and cyberbullying seem to be the dominate areas of research for our scholars (including myself). This is understandable as these areas have established caselaw (in the case of expression) or similar statutes across many states (in the case of bullying). These laws serve as a ready research base from which scholars can write up their methodology sections. Fair enough. These are important topics and I love that scholars are considering them at ever deepening levels. I just sat in a session on Cyberbullying that really got at some of the root issues, which I really enjoyed.

But, of course, I want to push a bit further. While student expression and cyberbullying are relevant topics, neither expand the law all the much. Expression law is largely unchanged for 20 years and all those new anti-bullying statutes (including cyber-bullying statutes) don't really do all that much. But, on the other hand, there are many technology driven legal issues that are fundamentally challenging how schools operate - for nearly every child in America. For instance, how schools contract with providers like Google and Apple and others, is fundamentally changing educational contract law. And, in those places where it is not changing, students in those states and districts are falling dangerously behind their peers in other places. This type of legal issue is the critical legal issues that must be addressed in near real time - rather than on the decade-long caselaw development cycle or the multi-year statute development cycle. 

How do we address this type of challenge? How do we get yearly presentations at ELA that are 6 months ahead of the school and state policy cycle? This is our challenge. This is ELA's challenge. Technology is driving policy development and deployment faster and faster. In order to properly serve our children, schools must keep pace. Policies must be changed. But if we as a scholarly community cannot keep pace or speak to these issues, we leave school and state officials without a scholarly base on which to draw. We have failed in our duty to be at their side, or at least in their file folders, through these extremely difficult issues. 

Education Technology Law Preconference - Notes

Well, the education technology law preconference session seemed to proceed decently. We covered the hours with a healthy discussion amongst administrators, lawyers and professors and several very difficult legal issues made more difficult by technology. This post just serves as a collection of notes that we talked about during the preconference. 

The powerpoint. (ppt) (pdf) - (these are big files)

Some News Stories We Cited: Charlotte Facebook Issues | Murmer's Butt Art | BullyPolice | 

Some Cases we Used:
Klump v. Nazareth | Doninger v. Neihoff | Requa v. Kent Sch. Dist. | Doe v. Conventry Sch. Bd. | Garcetti v. Ceballos | Price v. NYC Bd. of Educ. (cell phone ban case)

Other Stuff: 
Creative Commons | Foursquare | Twitter | My Twitter Feed | the Example Twitter Feed (Nordeer) |  ELA's Twitter Feed | 

Thanks to all that attended. If you have other questions or want links to other things, just let me know. 

Education Law Association 2010: Vancouver

This is just the first of probably a few posts from Vancouver and the annual meeting of the Education Law Association. Our own Kevin Brady (who promises he will post more post-tenure) was the program chair this year and I think he has done a marvelous job on the program in a tough economy and coastal (read pricy) location. The general session speakers include Stuart Biegel, Robert O'Neil, Russlynn Ali with the Office of Civil Rights, and our good friend Tom Hutton will give the Supreme Court update. An impressive (and left coast leaning) lineup. 

I'll be there personally from tonight (Tuesday) until Saturday ... when the redeye awaits back to Cincy. Tomorrow (Wednesday) I am presenting a 4 hour (ahh!) preconference on educational technology law (which I am still prepping). Otherwise, I have a few meetings here and there, but for the most part I am scott free (no pun intended Bauries :) for the rest of the conference. So, if you are going, find me and let's chat a little. Since it is such an intimate conference, I like to think I know (at least know of) most of the folks that are there. So, if I don't know you ... I want to. Please, say hi. 

Let's have a great conference everyone! 

Private School Tax Credits in Arizona

The Supreme Court held oral argument today in Arizona Christian School Tuition Organization v. Winn, a case challenging Arizona's law which allows an individual taxpayer a dollar-for-dollar tax credit for donating to a state-approved K-12 private school "scholarship" organization.  Based on this recap of the argument, this law could be struck down based on the subtle distinction between a tax credit and a tax deduction.  For those of you unfamiliar with the distinction, the latter reduces the amount of your income used to compute your tax bill, while the former actually reduces your ultimate tax bill itself after it has already been computed.  If you have a choice between the two and all other factors are equal, take the credit over the deduction every day and twice on Sunday!  The gist of the plaintiffs' argument is that the Arizona credit amounts to the forgiveness of a debt to the state, and this is the equivalent of an expenditure made by the state (which is true in all other contexts that involve balance sheets). 

Justices Kagan and Kennedy appeared to be following the same intuitions about the case, as both were very concerned that, by forgiving, dollar-for-dollar, the tax obligations of donees to scholarship organizations that discriminate based on religion, the state could do through intermediaries what it could not do legally itself (i.e., fund religious discrimination).  The Chief Justice even seemed a bit sympathetic to that line of thinking.  This may end up a 6-3 decision striking the law down.

On the other hand, there is also an issue of "taxpayer standing" in the case, so the Court may punt, as it did in the Pledge of Allegiance case a few years back.  Watch this one closely. 

UPDATE: I forgot my manners: Hat tip to my good friend Cory Andrews for information on the case. 

NLRB looks ready to revisit issue of collective bargaining by graduate teaching and research assistants

The National Labor Relations Board looks set to revisit a 2004 ruling that prohibited graduate student research and teaching assistants at private colleges and universities from engaging in collective bargaining activities protected under the National Labor Relations Act (NLRA).  The 2004 ruling (which actually overturned another NLRB decision) determined that graduate students do not constitute employees for purposes of the NLRA.  I plan to have more to say on this later.  For now, let's just say that I'm glad the NLRB is taking up the issue again.  Any new stance by the NLRB will only apply to graduate teaching and research assistants at private colleges and universities, as the NLRA leaves the issue of collective bargaining for public employees (including those in public higher education) to regulation under state law.

Public Attacks - Usually a Bad Idea

Over the weekend, a furor arose in our little ed. leadership community over an article by Fenwick English listing the names of the The 10 Most Wanted Enemies of American Public Education’s School Leadership. One of the named individuals, Rick Hess, called them out on it - and rightly so. It was a bad move. 

Over the past several years, UCEA has sought to better engage the policy arena - thinking that by doing so we can increase the quality of leadership preparation, the leaders they produce, and thus our schools. This is a valid and noble goal as the quality of some preparation programs is highly suspect. 

But, UCEA must walk a fine line when it comes to advocacy of positions or criticism of others. Being a member of UCEA now for many years, it is absolutely no secret that it has a position - a highly liberal one. But, UCEA is a institutional membership organization, not an individual membership organization. Meaning, my university and most other research universities around the country are the real members, not the professors. And, I would imagine, there is a substantial divide between the positions of institutions and the positions of ed. leadership professors. How many university presidents would create such an enemies list? 

If we (and I am still very supportive of UCEA) are going to enter the advocacy arena in a bigger way, it must be done with class - even if the opposition lacks it in your opinion. We fancy ourselves as scholars and believe in the power of ideas, let us permit those ideas to be our positions. 

Thoughts Prompted by Recent Chronicle of Higher Education Commentary on Academic Freedom

As someone whose research interests center on speech issues in higher education, I read with interest a recent commentary by Joan DelFattore in the Chronicle of Higher Education entitled "To Protect Academic Freedom, Look Beyond the First Amendment."  I recommend the commentary, and the author makes several good points regarding current debates over First Amendment protection for academic freedom.  For instance, and significantly, even if the Supreme Court ultimately decides that professorial speech receives some degree of constitutional protection, then any such constitutional safeguards for faculty speech will not be equivalent to professionally grounded protections for academic freedom, such as those provided through tenure.  As the commentary notes as well, problems arise in evaluating the quality or competency of faculty speech in relation to academic freedom concerns (though as dicussed below, I'm not sure the problem is as severe as the author suggests). 

                                                                   

However, the author’s positions regarding First Amendment protection for academic freedom are questionable on several fronts.  In general, the Garcetti v. Ceballos decision, which is discussed in the article, has been criticized for creating a bright line rule for public employee speech in general.  Under Garcetti, a public employee is not entitled to First Amendment protection for speech made pursuant to carrying out his or her professional employment duties.  Thus, the decision is worrisome in the creation of a standard that denies any hope of First Amendment protection to public employees in many circumstances.  The Garcetti decision, however, explicitly left open whether it applies to faculty speech.  For a discussion of Garcetti's application at the P-12 level, see Scott Bauries' recent posting and the accompanying comments.

 

I think that one problem with the commentary is not taking a broader view of Garcetti as a poor decision generally, one that I hope future Supreme Court decisions might carve out reasonable exceptions to in relation to public employees overall (including P-12 teachers) and not just for higher education faculty members.  I suggest, in contravention to the logic of the majority in Garcetti, that a place should exist for the possibility of First Amendment protection for speech by public employees in special circumstances.  Accordingly, I think the author is somewhat off the mark by only focusing on Garcetti in relation to faculty members and not considering  the decision in a somewhat broader context and the fact that Garcetti represented a poor decision in many respects in relation to public employees in general.   

                                                                                                                                                                    

Turning specifically to faculty, my stance is that a public college or university should not be able to invite and/or insist upon a faculty employee providing his or her honest views and opinions, and then be able to pull out the "speech rug" from under the employee and engage in retaliation for speech not pleasing to the employer.  While not arguing that some kind of forum has been created, I would argue that something somewhat analogous may be created by public employers for their employees.  If a college or university adopts an academic freedom policy that applies to faculty members, then it shouldn't also be able to rely on Garcetti to claim ownership of that speech when in an official policy it previously claimed that it wanted unfettered (independent) views and discussions from the faculty in teaching and research and institutional governance matters. While most public employers may not create such policies, they have been created at colleges and universities, and courts should not ignore them in relation to the applicability of the Garcetti standards.                                                                                                                                                               

Thus, I would argue that while the First Amendment is certainly no replacement for professional standards and legally enforceable protections in relation to faculty provided through such mechanisms as tenure, I still think that courts should be able to protect faculty speech in special situations, such as when officials clearly seek to quash speech, especially that taking place in the classroom or involving scholarship, with which they simply disagree and act without professional justification.  The author seems to suggest (at least to me) that courts would be left to evaluate the content of a faculty member’s speech if the First Amendment applies to faculty speech.  I actually think much of the inquiry could, instead, focus on whether school officials had acted in accordance with accepted professional standards and in alignment with official institutional policies and practices in taking action against a faculty member on the basis of his or her speech.

 

With faculty members, another issue not raised by the author concerns the difficulty in drawing the line between a faculty member speaking as a public employee or as a private citizen (where First Amendment protections would certainly apply).  When I give a presentation at a professional conference, am I speaking as a private citizen or as a public employee?  What about a blog posting that notes I am a faculty member?  As Robert O’Neil has pointed out, Garcetti, if applied to faculty members, would mean that they would often not enjoy at least the possibility of First Amendment protection for speech related to their areas of professional expertise.  To deny even the possibility of First Amendment protections in such circumstances seems somewhat strange indeed, especially when it may be difficult to classify when a faculty member is speaking as a private citizen versus as a public employee.

 

As a final note, the author doesn’t really address the changing nature of the faculty in the commentary.  The current reality is that public colleges and universities increasingly rely on faculty members hired off the tenure track, with more than half of faculty members now working in part-time positions, and many full-time faculty members also are employed without the possibility of tenure.  Many of these faculty members, especially those employed part time, work in an at-will capacity, with very limited legal protections.  And while the author mentions collective bargaining, what about those states that prohibit collective bargaining by faculty members in public higher education?  Institutions haven’t exactly embraced putting official policies and practices into place designed to protect faculty members employed off the tenure track. 

 

While I believe that we should certainly strengthen employment protections for non-tenure track faculty, including in relation to issues involving academic freedom, given the current employment reality for many of these faculty members, I hope that the First Amendment will continue to provide at least a minimum source of legal protection for them in relation to professional speech made in such contexts as the classroom.  I take this stance especially because college and university administrators, rather than seeking to work with faculty to bolster institutional policies and practices related to academic freedom in the wake of Garcetti, have, instead, tended to use the decision as a means to challenge speech claims by faculty members, including tenured ones, in legal decisions.  In such an environment, I believe it's critical to advocate for First Amendment speech rights for faculty.