Should State Boards of Education Issue Guidelines?
Justin Bathon on Monday, January 10, 2011 at 5:51PM Today, the Virginia School Board is considering adopting a set of guidelines on teacher electronic communication. The "guidelines" cover everything from texting to online gaming ... basically, they say teachers can never talk to students using electronic communication. If they do, for an emergency or whatever, they need to report it to their supervisor the next day.
Obviously, I am going to hate the merits of this set of guidelines. They are simplistically stupid - as in this is an attempt to apply simple rules to complex situations - in addition to just making me think the board members are a bit simple-minded.
But, outside of the merits, these sort of guideline prescriptions of model policy have always bothered me. State Boards are regulatory agencies tasked with passing administrative law extending legislatively created statutes. So, I don't see this in the job description.
It winds up being, of course, a policy back door. You can get schools to do what you want without having to go to the trouble or burden of passing regulations. And, then, just like the Federal government, you say that schools have a choice, even if it is a politically or financially unrealistic choice.
It's coercion, simple as that. Is that what we want from our democratic systems? Are both legislatures and schools so screwed up that state agencies are forced to intervene with coercive, legally-questionable model policies because neither can accomplish the correct outcome (questionable anyway) through traditional legal means?
Reader Comments (8)
This is my response. Watch this video. Barry Schwartz says it all. http://www.ted.com/talks/barry_schwartz_using_our_practical_wisdom.html
Our school just started using edmodo, and both staff and students really like it. Why? It looks like facebook is the most popular comment by the students. The teachers have signed me up so I can watch the activity, not as big brother but just to follow the progress of a new tool. Instead of making the blanket policy, why not punish the guilty, since there is no place for them in our profession. We are having a snow day, took all the steps but also had it go out on facebook, and that will get the information around town quicker than any other medium we use, I know its not the same, but it is a way social media can be a benefit to education, we should figure out ways to embrace it as opposed to banning it.
@Lisa - Great video, thanks. Had not seen that one before. I guess I support the content, even as a lawyer ;)
@Greg - Exactly. I am seeing the same thing here in KY. Facebook is the best way to talk to students and parents when you really want them to know something (like snowdays). This new generation of parents wakes up in the morning and checks Facebook just as soon as the turn on the TV (if they do turn on TV, they are not watching the news). So, what should we do with Facebook? Block it, obviously. Why would we want schools and teachers talking to parents and students?
Your larger question relates to whether or not state agencies should provide guidelines... If you took away this specific issue (of banning electronic communications), would you ever see a good reason for a state agency to issue guidelines?
I personally find it helpful when our state agency provides (as an example) guidelines for implementation of record retention schedules. Even though it is helpful, it is possible to still make the argument that it is not the role of the agency to do so (and perhaps that state school board's association should as they frequently provide guidance on policy.!?!)
@Joel - Right, it would be my preference for Universities, School Boards Associations, Administrator Associations, Educator Associations to be responsible for issuing guidelines, rather than coming directly from the regulatory agency. I think your average school administrator possibly does not understand the fine line difference between regulations and guidelines. I think there is an acknowledgement of more flexibility with guidelines, but courts will frequently cite administrative guidelines as evidence of noncompliance or liability. Thus, guidelines are not entirely voluntary and can come back to haunt you if you don't follow them.
This is not something that really upsets me, but I do think it is a bit of a gray area where administrative agencies are going a bit further than I would prefer. I get that guidelines are frequently useful documents, so I don't want to see lawsuits against them or anything, but I do hope that those other organizations pick up some of the slack so that administrative bodies don't feel like they have to issue those guidelines.
As a rule I tend to be sympathetic to all of these kinds of concerns: (1) agency overreach; (2) overblown fears of technology and clumsy efforts to address them; and (3) more generally, the centralization and legalization of all things educational. But on the substantive issue here, I would respectfully suggest that on close reading the VSBOE guidelines appear more thoughtfully done than one might know from some of the initial reactions to them in the blogosphere.
The guidelines are not focused entirely or even primarily on technological communications, for example, although the prevalence with which today's perpetrators groom their victims this way is chilling. As the guidelines urge, districts are finding ways to utilize these great tools while avoiding the real problem: easy one-on-one communications with no third set of eyes. As another example, the argument that we should eschew a broad brush and focus narrowly on perpetrators highlights the whole point of the boundary invasions approach, namely that schools must focus earlier on addressing norms and behaviors that in most instances are in fact "innocent" -- but that if accepted are exactly what enable perpretrators to victimize children. Addressing the institutional culture in this way can provide the red flags and legal grounds that allow the school district to intervene in time. The narrower approach often has meant that by the time the district learns of the problem or has enough evidence to warrant action, the harm's been done. Case in point: Doe v. Flaherty, 623 F.3d 577 (8th Cir. 2010).
In the interest of full disclosure, my firm has done a great deal of work on this issue, so we're supportive of efforts like VSBOE's. And by the way, ELA's upcoming webinar will address all these issues:
http://educationlaw.org/webinar.php.
-t
While I agree Tom with your couching of the guidelines, some law firm assisted the Virginia State Board in creating those, likely, as you acknowledge at the bottom. So, why can't the law firm just release those from a private entity, instead of using the public regulatory process for this? Like I said, if that law firm pedestal was not enough, the local school boards association, administrators association or university would probably be fine.
On the third set of eyes issue ... could you not make the same case for classroom interactions? Why is it permissible there? Both interactions are public, it is only because the electronic one is so much more easily monitored that we take issue. I can't assume that more teachers are harassing children online than in classrooms. In fact, my intuition would say exactly the opposite - that classrooms are a bigger problem than Facebook. So, it is only because of the ease of oversight that we are attempting such things? Or is it simply because Facebook is new and scares some people? What is the rationale for this level of oversight that we do not see evidenced in other aspects of schools.
I agree with you wholeheartedly, Justin, that there's more than one way to skin a cat. Here in our state, a model policy and procedure are offered to our districts by the Washington State School Directors' Association. In other places, local school boards have developed their own local approaches. A good argument for sticking with guidelines and models or handling these things locally instead of through statutes is that the statutes tend to stay stuck in time when the technology moves on. Witness the bans on digital pagers in schools.
On the telecommunications piece, I think the attempt here actually is to make that realm a little more like the classroom: more transparent. It's not unlike advising teachers to try to avoid situations in which they are one-one-one behind closed doors with a student, or requiring them to notify an administrator and/or parent if they have to drive a student home in an emergency. I think you're correct when it comes to technology that we always should ask ourselves, in K-12 education as in other walks of life, whether we're just acting out of fear of the unfamiliar. But I really don't get the sense that's what's going on here, and I don't think the technology-related part of the guidelines is out of step with the rest of its overall approach to professional boundaries.
-t