Who or Where?

I have been wrestling with this question of school resource officers (typically uniformed police officers) and search and seizure and how to legally deal with this issue for a while now. I thought I would give my conclusions in a scholarly series post, which I haven't done for a while. 

It occurs to me that there are two legal analysis options. A "who" option or a "where" option and courts currently seem to be employing both sort of at random. Asking the who question asks whether the person initiating the search is a school official (reasonable suspicion applies) or a law enforcement official (the higher probable cause applies). Asking the where question avoids that issue. Essentially, if it is a school setting = reasonable suspicion in all cases. 

To answer whether the question should be who or where, we need to look at the Supreme Court precedence in New Jersey v. T.L.O (and probably also consider the Redding case coming out next month). A reading of this case could probably provide support to either option, but I think it provides more support to the "who" question than the "where" question. 

For instance, look at how Justice White for the majority frames what they are deciding (emphasis added):

Although we originally granted certiorari to decide the issue of the appropriate remedy in juvenile court proceedings for unlawful school searches, our doubts regarding the wisdom of deciding that question in isolation from the broader question of what limits, if any, the Fourth Amendment places on the activities of school authorities prompted us to order reargument on that question.

Also, the court framed the whole initial analysis of whether the Fourth Amendment applies, not to "schools" as governmental entities, but rather to "school officials" as governmental actors ... i.e. it was the who that mattered, not the where, to determine whether we were under a constitutional amendment (see section II in the opinion). 

Continuing, the Court does articulate some "where" type statements, such as this one:

Accordingly, we have recognized that maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student-teacher relationship.

But, even in that statement, you can see it is the "who" relationship, the "student-teacher" relationship, that mattered - it just happens to always occur at schools. 

Further, in the central part of the case where the Court articulates the new standard that has governed search and seizure ever since, they are again more focused on the who than the where. Consider the bold (added) in the following paragraph:  

Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the . . . action was justified at its inception," Terry v. Ohio, 392 U.S. at 20; second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place," ibid. Under ordinary circumstances, a search of a student by a teacher or other school official will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

In my opinion, the proper question here is not where the search occurs, but who is conducting the search. If the person conducting the search can be classified as a "teacher or school official," then reasonable suspicion should apply. If that person conducting the search, even on school property, cannot be classified as a "school official" then the default probable cause standard for governmental actors should apply. If, then, this is our analysis, it is very difficult for me to conclude that uniformed police officers, being paid by and reporting to the police department, are school officials entitled to the reasonable suspicion exception. 

After thinking on this issue for a while now, I think I am settled on this position. Police officers in schools are not school officials and are not entitled to reasonable suspicion directly, but only through a proper transfer of suspicion when a legitimate school official, such as a teacher or principal, initiates a search and then involves the officer. Very much depends on the nature of the employment of the school resource officer, but those officers that are more "police" than they are "school officials" clearly seem to fall outside of what the Court in New Jersey v. T.L.O. intended in its opinion. 

Law Professor? Want to Blog on Education?

Paul Caron wants to talk to you about the Law Profs Blog Network (in fact he has wanted to talk to you for a year now). 

Couple points ... we are extremely privledged to have Scott Bauries, a law professor, on board here. Here are his excellent posts. So, we are already filling that space a little, and #2 - Mitchell Rubinstein is filling that space a little already as well.

But, big point, why in God's name is there no one jumping on that? There are hundreds of law professors blogging. Just on profs blog alone there are bloggers on Native American law, food law, reproductive rights law, unincorporated businesses law, aviation law ... hello! There are nearly 350 students for every aircraft in the U.S.  (small, big, passenger, or otherwise). There are 75 million students in this country in 130,000 schools with 8 million teachers. Education is nearly 10% of our GNP and is nearly a trillion dollar industry.

WAKE UP, Law Schools - we need you to pay attention and help us.  

Gratis: Is Child Support a Payment?

Interesting case out of Pennsylvania (Velazquez v. East Stroudsburg Sch. Dist. - plol link) and I want to point it out because it is a great case of getting the right result ... and getting the right law. I love it when courts do that (and in appellate opinions it doesn't happen as often as you might think). 

Kid's mother and father were screwed up. Dad was in jail. Mom was running around the country. Grandma was left to take care of the kid. Kid got in a little trouble and the school sought to make the problem go away by making him a non-resident of the district. Penn's residency law stated that students whose parents live in the district are entitled to attend school in the district, or any other student who was living with someone that treated them as if they were their child gratis (free of charge). The school accepted the student just fine and didn't care until the student got in a little trouble. Then, after investigation, the school found out grandma had received like $1,900 in child support payments extremely intermittently and told the child he was ineligible to come to school there. Trial court sided with school - but the appellate court reversed (correctly in my opinion). Child support payments are not "payment" for keeping the kid ... they are money for the welfare of the child. The money is for the kid ... not for the grandma. Therefore, the grandma was not "being compensated" for taking care of the kid, thus outside of the gratis provision of the law. On top of that, it was $1,900 over the course of a year ... I am not even sure that qualifies as compensation for keeping a child anyway. The court also chided the school in saying the legislative intent was to prohibit district shopping, not to get rid of discipline problems. 

Anyway, right result. Right law. This case isn't going to change the world and outside of Jose and his grandma, no one is going to remember it in 10 years. But, cases like this are why I love the law and keeps my faith in the court system.    

Finding Free Legal Information

A short article Kevin Brady and I did for NSBA Leadership Insider is published and making the rounds now. We did a survey of ed. law interested folks regarding how they get their legal information related to education and articulate some of the results, although more results will be published in a later article. Anyway, we also include in the piece some great resources for finding free education law information online. Those resources are also available here (scroll down).

Despite the impact of the Internet, however, the majority of court cases, statutes, regulations, and other legal information is still published, either in hard copy or online, for a relatively high cost for educational practitioners. Compared to other legal specializations, moreover, the field of education law has been noticeably slow in its integration of electronic media technologies, such as specialized websites or blogs focusing on education law.

I encourage you to read the whole Leadership Insider issue, however, because Dave Schimmel and Matt Militello articulate some of their work on teacher legal literacy (which was earlier published in the Harvard Education Review) and Sarah Redfield, long a visionary on educational law issues, writes on breaking down the silos between the legal and educational worlds.

NSBA, without a doubt, is doing the best job in the country at getting legal resources online and into the hands of educators. Their school law pages are an invaluable resource for anyone doing any work related to education law.

Some Preliminary Thoughts on "Cyber-bullying" and the First Amendment

I'm sure that Justin has touched on this topic at some point, but the semester just ended at my institution, and some of the papers in my education law seminar have started me thinking on the issue of school bullying--more specifically "cyber-bullying." Now, this is a concept that people in my generation would have had a hard time even grasping in my high school days, but the concern over cyber-bullying has become pervasive. Some of this concern has even prompted legislation. However, I'm not sure that we even have a good definition of what constitutes cyber-bullying, and upon initial reflection, I think that what we define as bullying makes a great deal of difference on the First Amendment question.

Traditionally, we have thought of "bullying" as threats of violence (usually immediate, as in "Give me your lunch money, or I'll beat you up!"), or the actual violence itself. Neither of these definitions would raise any First Amendment concerns, as assault and battery are clearly punishable already under our criminal laws. However, in recent years, we have begun to equate incessant teasing with bullying. Some have suggested that the Colmbine killers were "bullied" in this way, although there is much dispute as to whether the Columbine killers were even "bullied" at all.

The concept of "cyber-bullying" seems to embrace the idea that incessant teasing, particularly in the form of defamation (e.g., starting rumors) or public disclosure of private facts (e.g., sexting), constitutes punishable bullying. This seems to be where the First Amendment problem comes in. Defamation is kind of an "exception" to the First Amendment (like shouting "fire" in a crowded theater), and public disclosure of private facts does not fall within the First Amendment's protections because two private parties can lawfully agree to the secrecy of certain information if they want to.

However, they are analyzed differently. We have crafted our defamation laws such that a person not defaming a public figure (like the Pope or Oprah) can be held liable in civil court merely for making a public statement that was false and that harmed the subject of the statement. So, where this conduct is termed "bullying," the party engaging in the defamation seems to be outside the protection of the First Amendment, either directly (due to defamation) or indirectly (due to deeming defamation "bullying"). Thus, there would not seem to be a First Amendment problem with schools punishing students for defaming other students under state bullying laws.

Public disclosure of private facts creates a different problem. In order to prove a civil claim for this type of harm, one must show that the speaker had a duty to keep private information about the aggrieved party secret. In most cases of "sexting," I doubt this would be possible. In sexting cases (or other public disclosure types of bullying cases like "outing" someone's sexual orientation, etc.), the information may come into the hands of the bully through a relationship either expressly or impliedly establishing the duty to keep the information secret, in which case its disclosure would be redressable under our civil laws, and thus outside the realm of the First Amendment. However, the information might also (and I think more often) come to light in normal discussion among friends, with no duty of confidentiality either expressed or implied. It would seem that, in these cases, as long as the information is true or the photos are not doctored, the disclosure might just be deemed expressive conduct.

If so, how far do Tinker and its progeny allow the school to reach? Can schools punish public disclosures of facts stated off campus through electronic media (e.g., Facebook), where there does not appear to be any sort of confidentiality understanding between the speaker and the subject? Are the invidious effects of such bullying seen during the school day disruption enough to satisfy Tinker's standards?  What about ex ante?  This seems to me a very difficult question that could chill the enforcement of some state statutes seeking to reach this sort of conduct. 

South Carolina Political Fight Over Stimulus Gets Legal

The family and I have been enjoying our time at the beach here in South Carolina, but all we can hear about on the nightly news (while we are waiting on the weather report) is the various lawsuits filed for and against the Governor. Mark Sanford, a while back, claimed that he was going to reject the stimulus dollars. In particular he wants to reject $700 million, $350 million of which is for schools (he would like to take it to pay debt, but that doesn't seem to be part of the bargain from the feds). Other governors (Texas, Louisiana and Alabama) made similar stands, but largely backed down in the end. Not Sanford. He is sticking by it and has even filed a lawsuit against the South Carolina State Legislature to stop their efforts to force him to accept the money. Now, we get lawsuits from education advocates also. In particular the one from the South Carolina Association of School Administrators has been catching headlines, but there is also one from students and one for higher education. Pretty much everyone in the state seems for taking the money, except Sanford. I'll let you speculate as to why. The deadline to accept or reject is July 1. Photocredit: Jim Frazier

I was at Fort Sumpter yesterday and heard how South Carolina led another revolt against federal government policies ... which ultimately started the Civil War. I have spent most of this week at Charleston and learned that it is the 4th largest sea port for containers in the U.S. and that it has always been one of the Atlantic's most important harbor cities. But, if anything, Charleston strikes me as small. For a city nearly as old as Boston with a much warmer climate and nicer bay, it is amazing how few people live here. There are always a million reasons why some cities develop and some do not, but it would be naive to assume there is no connection between South Carolina's historical and contemporary conservative ideology and the lack of development in the state generally, and specifically in Charleston. Political actions have consequences, both in the short term and in the long run.

I am truely baffled how rejecting the stimulus dollars for schools can be seen as the right move.  

Restraint and Seclusion. Are we really trained for this?

I have not posted to this blog in awhile--serving the research/writing/grading-papers masters--but now I take the opportunity of Justin's vacation to renew my contributions (albeit a couple of days late--my apologies, Justin). I will start with an alarming story that raises many difficult issues. I'm always cautious about relying on news reports, so I take these with an appropriate dose of skepticism, but several national news sources (of all political stripes) have reported in the last few days on a recent Government Accountability Office study assessing the use of restraint and seclusion to control the behavior of special education students. According to the reports, in just California and Texas (two of the five in the nation that require educational institutions to report their use of restraint and seclusion), one or the other technique was used more than 33,000 times in one school year, ostensibly to keep certain potentially dangerous special education students from hurting themselves or others.

Except that, in some cases (and even one is too many, in my opinion), the special education students apparently end up being hurt (or even killed) by the techniques themselves. For instance, a little girl in Wisconsin (not one of the states in the GAO report) was recently allegedly suffocated when a much larger adult attempted to restrain her by pinning her down. Her potentially dangerous activities? According to NPR, "fidgeting and blowing bubbles in her milk." Now, I'm sure that description is pretty scaled down, and I have no doubt that the adult in question perceived a risk subjectively, but it seems obvious to me that even special education teachers are not often fully trained in the use of such techniques. Education schools do not specialize in this sort of training--police academies do. And even if traditionally certified special education teachers typically have some relevant training (and I doubt very much that any such training is ample), we cannot forget the equally alarming presence of many uncertified--and sometimes completely untrained--teachers in special education assignments. Is it a good idea to allow adults to use these techniques without significant training?

Of course, the schools (and the teachers) are placed into an untenable position here. On one hand, the teacher may perceive that a manifestation of the student's disability may cause harm to the student or to others. In many cases, the teacher is the first and only line of defense here, so she must do something. Indeed, if she fails to act, and someone is hurt, the school may be exposed to liability for negligent supervision. On the other hand, schools would also seem to expose themselves to significant liability by empowering teachers with the authority and the discretion to use techniques that could endanger the one to whom they are applied--especially in the absence of ample training. We all know that schools and school districts are very, very risk averse, sometimes even to the detriment of the learning process. What, then, explains the apparent widespread use of these techniques? Mere expedience? Lack of options?  Whatever the reason, if I were an administrator in a school where these techniques were on the table, I would make sure to make the proper application of such techniques my very highest professional development priority.

Denver still on edge from Columbine

Way back when, as a high schooler, I turned down a student that asked me out (yes, I know you are shocked (admittedly I was too - I didn't get a lot of date requests)). In response, she wrote in a notebook something like 200-300 different ways to kill me. It was sort of impressive actually and kind of creative. Some friends of hers made me aware of it and she admitted to writing it and eventually I saw it. But, I never thought her threat was that serious and it was never reported (of course, that was pre-Columbine ... maybe today I would have a different response).

Anyway, it is going to take us a long time to recover from Columbine, as this similar story in Denver shows. People are always on edge to different degrees and I have seen it in Kentucky as well, as Paducah is still on the minds of teachers and administrators. But, eventually, we need to get over it. We can't forget it and need to learn the lessons from it, but we can't be so on edge as to consider every threat legitimate even after it is investigated. It doesn't do a service to our students who, after having their young hearts broken or being embarrassed, come up with inappropriate, but ultimately non-threatening, responses. Our students are not adults and we don't need to be treating them that way. It is good to see this story from Denver ... they are getting over it and it is a good signal to the rest of us that we should be as well.

h/t Scott M.

Edjurist TV Episode 4: 2008 School Discipline Wrap

I am reading all the cases related to students for the 2009 Yearbook of Education Law, so I thought I would wrap up some interesting school discipline decisions. I think you'll enjoy it because school discipline cases always have interesting fact patterns. 

Cases cited in this episode: (type cite into plol for case)

A.B. v. State, 885 N.E.2d 1223 (Ind. 2008).
Price v. New York City Bd. of Educ., 855 N.Y.S.2d 530 (S.Ct. App. Div. NY 2008).
Brannum v. Overton County Sch. Bd., 516 F.3d 489 (6th Cir. 2008).
In re J.D., 655 S.E.2d 702 228 [Ed. Law Rep. 944] (Ga. App. 2007). 
Picone v. Bangor Area Sch. Dist., 936 A.2d 556 (C.C. Pa. 2007).
C.M.M. v. State, 983 So. 2d 704 (Fla. App. 5 Dist. 2008).
In re T.A.G., 663 S.E.2d 392 (Ga. Ct. App. 2008).
R. D. S. v. State, 245 S.W.3d 356 (Tenn. 2008).

Programming Update: 

I am taking a small vacation next week, so I'll leave you in Scott's capable hands. 

Can't Have it Both Ways School Resource Officers

I am growing more and more frustrated in how the courts are handling school resource officers. The courts seem to have no trouble concluding that school resource officers are more like school officials for purposes of getting under the reasonable suspicion standard of the 4th Amendment (searches and seizures). On the other hand, courts, such as this one in Florida, seem to have no problem still giving school resource officers all the protections traditionally afforded the police force. The Florida case even conceded the point that the resource officer was under the direction of school administrators, but still found a student guilty of the crime of battery of a law enforcement officer when he fought with the resource officer that stopped him in the hallway. How are students supposed to know how to treat these people? They discipline like principals, have the authority of school administrators, get the protections of school administrators, yet if you interact incorrectly with them, all the built-in protections we afford police in this country can come down on top of (and ruin) the student's life.

We absolutely need clarity from the courts on whether school resource officers are more like school employees or more like police. This having it both ways stuff (to the detriment of the students in all cases) has got to stop.

Why Teacher Drug Testing Should Be Avoided

It is just a nightmare procedurally.

You probably haven't been following it, but I am a casual NASCAR fan and my favorite driver growing up was Jeremy Mayfield. A week ago Mayfield was the first big driver to be caught in NASCAR's drug testing scheme. Mayfield has claimed it was a mix of over the counter and prescription drugs, but NASCAR is indefinitely suspending him without telling him or the public what the offending drug was. NASCAR's drug testing policy, implemented in the absence of a driver's union, is harsh and secretive. But, because it is harsh and secretive, when it ruins a driver's career like Mayfield's, it is almost guaranteed to be challenged in court. NASCAR allowed Mayfield to race after testing positive on the first sample, so it is questionable just how dangerous Mayfield was, if at all, on the track. And, now that they have caught him, they are probably looking at hundreds of thousands of dollars defending their actions. 

As education moves closer and closer to randomly drug testing teachers (2), we should learn a lesson from NASCAR here. NASCAR is a billion dollar sport with virtually unlimited resources to test their small cadre of privately employed drivers and crew ... and their drug testing scheme is a procedural nightmare and may well wind up an embarrassment when this hits the court system. Schools, with limited resources and public, frequently unionized, employees, is going to be even a harder drug testing system to procedurally manage and it will have to be done with far fewer resources. Implementing teacher drug testing systems is going to be a nightmare for schools procedurally and state officials need to really consider whether it is worth that cost.

Weekend Supreme Court Viewing

I will be back in Illinois this weekend because of a death in the family; so, enjoy this series on the Supreme Court in the meantime. We are approaching some pretty big decisions on education being handed down in the next month or so, so it is a good time to stop and reflect on what the Supreme Court is and why their decisions are so important.

Let's Have Another Sexting Story!

Maybe we should let newspapers die.

There's another AP sexting story all over the country's newspapers today. It was not responding to any particular event that just happened yesterday, they just ran one to run one and local papers picked it up. 

This is a big part of why schools are struggling with technology. The newspapers just keep pushing the angle until they make every last penny off scaring people away from this stuff. 

I don't mean to discount the sexting issue, it is a legitimate issue, but one that is blown way out of proportion in my eyes. They got everyone in such a hype over this that we have child pornography laws being changed to charge kids with sexual assault. Luckily, we still have some judges with common sense, but that is not going to stop it.  

I hope this controversy dies down over the summer and in the fall we actually take a realistic look at how we can do a better job on technology usage education for our children.  

The Other Side of the Religion Issue ... Still Unconstitutional

Most of the stories I get to write about on religion have the same basic plot: teacher intentionally or unintentionally injects their own religion, usually Christianity, into classroom, which violates the First Amendment. Well, today, I get to write the opposite story ... teacher goes on anti-religious rant ... violates First Amendment just the same.Flickr: A. Davey

A teacher in California gave an anti-Creationist rant, calling Creationism nonsense, as well as a whole lot of other ridiculous statements. On the anti-creationist rant, the U.S. District Court judge ruled that such a official position against religion is just as unconstitutional as the typical case of teachers promoting religion in the classrooms.

Really, the opinion in C.F. v. Capistrano Unified Sch. Dist. is worth a read. I really don't like it that much as the judge seemed to be going out of his way to find for the teacher and even wrote an afterward where he gave his opinion on the interaction between schools and religion:

This case reflects the tension between the constitutional rights of a student and the demands of higher education as reflected in the Advanced Placement European History course in which Farnan enrolled. It also reflects a tension between Farnan’s deeply-held religious beliefs and the need for government, particularly schools, to carry out their duties free of the strictures of any particular religious or philosophical belief system. The Constitution recognizes both sides of the equation. 

AP courses encourage and test critical thinking.  That necessarily involves conflict:historical conflicts of many types, including conflicts between religion and government or competing philosophical belief systems, and conflicts in the classroom as teachers and students work through those historical conflicts, bringing their own thoughts and analysis to bear. Intellectual development requires discussion and critique of a wide range of views. The Court’s ruling today reflects the constitutionally-permissible need for expansive discussion even if a given topic may be offensive to a particular religion or if a particular religion takes one side of a historical debate.

Why? This strikes me as totally unnecessary (wholly dicta) and partially wrong. Why does a teacher need to give his or her opinion. Give the historical facts as best you know them, facilitate discussion among students, prod their thinking, ask tough questions, but stay the heck out of it ideologically.  

The simple deal is that teachers need to stay away from giving their own opinions on religion, on both sides of that coin. This was not a close case and much of the stuff the teacher said was clearly beyond the line. The judge in this case was much more friendly to the teacher than he should have been in my opinion. You cannot advance nor attack religion in the classroom. I don't see why that is such a difficult standard. You can be a good teacher and not advance your own opinions on religion. 

h/t Scott McLeod

A Paddling Success Story?

Check this one out and decide for yourself. A principal in South Carolina has taken to "whippen" kids to restore order in the school -- and it has worked to the benefit of his school achievement scores. 

You can decide for yourself on this one, but it really depends on the definition of success, doesn't it. A scared school doesn't necessarily strike me as a successful school, no matter what the test scores say. We have made a lot of progress over the past few decades in phasing out corporeal punishment and I would really hate to see young principals start picking it back up because they feel like they have no other options to get test scores up. 

Closing Schools for Swine Flu - Would Businesses?

Schools are closing all over the U.S. because of the Swine Flu scare. Fort Worth entirely shut down for 10 days.  Schools are also closed in Chicago, California, Utah, Arizona, Austin, Houston, New York.

As of today, the Washington Post has 300 schools nationwide closed (up from 100 yesterday) based on Department of Education data. Thus, literally hundreds of thousands of students are not in school right now. Of course, that is only the United States, Mexico has shut down its school system entirely. 

The Department of Education has published guidance for school administrators. There is some good stuff in there and let me highlight a couple:

1. The health and safety of a community comes first. We can't lose sight of that. 
2. Monitor your illnesses in your school. Call parents, ask if they went to the doctor, what did the doctor say, etc. Just stay on top of it right now. 
3. Wash hands. We should be doing that all the time, but this is a good teaching opportunity about the importance of this basic step. Also, stress to your cleaning staff to pay special attention to places that students frequently touch like door handles. 
4. Check your districts to make sure there were no students in Mexico in the last month or so. But, if there were, not only do you need to be concerned about exposure, but you also need to make sure they are not bullied by other students. Even students of Mexican descent may be targeted, so keep on top of that. 
5. No masks. If a kid is sick, send them home. Don't have everyone in the school wearing masks. No one is learning anyway at that point so you might as well have them at home.   

But, the recommendation to close schools if someone in the community who may or may not have had any contact with schools goes too far in my opinion (disclaimer: I am not a medical doctor - I am a ed. law scholar, take my advice only for what it is worth, which isn't much). Back to my point, the school closure decision is excessive unless there is a true outbreak in the school community because once a decision to close a school is made, the DOE recommends keeping the school closed for at least 7 days. That is a major disruption on the level of Christmas break, and any good educator knows how much knowledge is lost during Christmas break. With it being the state exam time of year, such a break would absolutely devastate test scores (why we are in such a position to worry so much about test scores is a different post). Of course, test scores pale in comparison to the health and safety of our communities, but as of now we seem to be handling this pretty well in the United States.   

My concern is that the DOE is basing a lot of their decisions on the CDC, and the CDC seems to think closing schools is sort of a good idea in times like this. Children are labeled "amplification points" for viruses and the "social distancing" treatment theory starts with kids and distancing them from their peers - in the hopes that kids will keep families from interacting so much. If I were an M.D. and looking at this only from that perspective, absolutely schools should be closed. But I am an educator and I think it is reasonable to ask why are schools first on the list to close? Is what we are doing less important than business? In any downtown skyscraper, like the one my wife works in, thousands of people are also all breathing the same air, why is that less important to close?

Closing these hundreds and probably by next week thousands of schools is just going to be a major burden on our education system and really hurt kid's learning. I know the CDC is the expert here, but from their perspective recommending the closing of schools is an easy call, with little ramifications. I just think educators need to be especially vocal about the costs of closing schools right now because someone needs to be making an argument to keep these kids in school.   

Acceptable Use Policies Becoming A Relic

Just participated a great conversation with Sara Dexter of the University of Virginia for one of her Technology Leader Certificate courses. One of the questions concerned Acceptable Use Policies and the ramifications of parents failing or unwilling to sign them, so I wanted to sort of rehash my answer here. 

Flickr: madmanOTLAcceptable Use Policies developed as a result of legislation that attempted to govern how schools allowed students to use the Internet. While legislation usually did not directly call for their formation, it was sort of the implementation of choice for most schools around the country. The policy is basically a signed agreement documenting what's acceptable in using the Internet at school (although as Karl Fisch stated, it is really an unacceptable use policy as most of them are just a list of things that kids cannot do). Parents and students had to sign the AUP before they were granted any Internet privileges at school. In that way, it was sort of like a contract between the school and the student's family. 

Well, today I argued  that such a structure should become a thing of the past. The contractual nature of these AUP's is an outdated concept. We regularly use these kind of parental contracts for extracurricular activities at schools. Parents typically have to sign one before field trips or playing football, etc. Basically, it's the same idea as student drug testing only of extra-curriculars. Because it is a privilege beyond the basic provision of curriculum, the school can put additional requirements on it. 

So, as long as we viewed the Internet as extra-curricular, the idea of an contract-based AUP worked just fine. But, we are now starting to move past the era when the Internet was extra-curricular into the era when the Internet is the curriculum. Much of what teachers are teaching these days has Internet based components and even Internet based activities. When we view the Internet as a standard part of the curriculum, the AUP doesn't make sense as a contractual endeavor because the school cannot contract for the delivery of curriculum. We have compulsory attendance laws and those laws demand that students be provided curriculum, whether or not their parents sign some agreements beforehand. This gets to the question of what happens when a parent doesn't sign an AUP. but an Internet based-activity is a standard part of the course? ... Answer: Implement the curriculum including the Internet, whether or not the AUP has been signed. 

Let me be clear, I am not arguing against the principles contained in those AUP's (although certainly they can be substantially improved). What I am saying is the principles in those AUP's need to be moved into the school's discipline code and schools need to retroactively punish students for violations just as we do for any other disciplinary violations. The proactive contract-based idea only works if you actually have discretion to not implement the terms of the contract. Well, as the Internet increasingly becomes a standard part of the curriculum, that discretion is waning. It is not a bad idea to articulate to parents how you expect students to use the Internet at school, but to hold out the idea that a student won't get the standard curriculum if they don't sign an AUP is just wrong.     

Credit Cards for 2 Year Olds

There is a lot of national talk about the credit industry right now, including talk of more highly regulating credit cards. Well, yesterday my 2 year old got a credit card application in the mail. He can't even read (nor has he mastered going on the potty) yet Regions Bank was apparently willing to extend him a thousand dollar line of credit. What scares me about this nonsense is that someone may mess with it and mess up his credit score or something. Obviously, something is wrong with the credit industry when this kind of stuff is happening.

Downside of Doing Nothing

This is a pretty bad one - I have not seen this before (I have a son who is potty training now, so I hope our daycare doesn't send something similar home to us).

But, the lesson here is that you can't just do nothing altogether. The school sent an e-mail a couple days later and then did nothing else. When parents, or anyone for that matter, don't get any responses to inquires, at some point they all start to think of the media as the next place to turn. I know that lawyers have a tenancy to tell clients to do nothing and say nothing (in the hopes problems will go away), but this is sometimes the effect of that strategy. An incident that may have been handled on a personal level with reprimanding the teacher now is a national news story.

H/T Scott M. - who I am just going to start calling my researcher.

Was it a search? - What?

The Supreme Court heard the Safford v. Redding case today ... so it is all over the news (I will post links and video as they become available). I trust Mark Walsh's interpretation of the events and he seemed struck by Justices Souter and Breyer asking tough questions of the Redding's (the student) lawyer. The question from Breyer about whether this was even a search at all is almost unimaginable - and then whether it was a "strip" search is also very odd. They peered in her undergarmets ... i.e. they saw what there was to see - how could that not be a strip search?  And comparing this to gym class (not a search because in their underwear all the time) doesn't make any sense either. It is a voluntary thing in gym class ... involuntary in Redding's case. That is the whole definition of the word "search" ... it is involuntary.

Very, very odd stuff from the Court today, so we'll have to wait and see, but I didn't like Redding's chances before. I really, really don't like her chances now.

Update:

Bloomberg

LA Times (also thinking the Court will side with school)

AP