Who's Verifying the Work Being Billed? -- Part 4 of 4 on Time in Education and the Law

One of my law school professors explained that good lawyers are just "creative problem solvers."  So, shouldn't we all be interested in crafting changes to the way time is used, both in the law, and in the education of our communities' children?

Share the Responsibility: Finger Pointing and Evasion Must End

In conclusion, the Commission offered three more recommendations for reform around time and learning to work:

- Government should focus on results, not red tape.

- Higher education needs to get involved.

- Parents, students, and teachers must lead the way.[1]

Mike Petrilli, of the Fordham Foundation, recently proposed how to help the government’s focus change under the No Child Left Behind Act:

Right now, NCLB micromanages the formula and timelines by which schools are labeled and sanctioned, yet it allows states total discretion over the academic standards and tests used to judge schools (and kids) in the first place. These should be flipped. Provide incentives for states to sign up for rigorous nationwide (not federal) standards and tests. Make the results of this testing publicly available, sliced every which way by school and group. But then allow states and districts (or private entities, such as GreatSchools.net) to devise their own school labels and ratings - and let them decide what to do with schools that need help.

Post-secondary education institutions not only must be involved—they will want to be involved when they see how much money they could save and earn. Post-secondary institutions are best equipped to help middle and high school policymakers determine what students need to do to be prepared to succeed without taking remedial coursework. In Tennessee, for example, 60 percent of first time freshman in the State’s public two or four year colleges have to take some remedial math or English. The state is paying for that instruction twice! When post-secondary institutions work with local school districts and state policymakers to blur the line between high school completion and post-secondary education—through dual credit and dual enrollment programs, for example—they will significantly increase the number of paying students they have in their courses.

If students, parents and teachers are given the opportunity and authority to lead the way, they will. Right now, students are told how long they must attend school, parents are told where their children may attend school, and teachers are told what resources are best for them and their students. Imagine if all of those situations were overturned: If students could choose or if teachers were empowered to construct classes around students’ individual needs and learning styles; if all parents could choose from a variety of themed or magnet schools to meet their children’s needs—using information gleaned from accountability measures; and if teachers could determine what resources and schedules would be most beneficial for their students (and their own professional development).

CONCLUSION

A lawyer is an expert in law pursuing a learned art in service to clients and in the spirit of public service and engaging in these pursuits as part of a common calling to promote justice and public good. -- Tennessee Rules of Professional Conduct, Preamble.

A stable and democratic society is impossible without widespread acceptance of some common set of values and without a minimum degree of literacy and knowledge on the part of citizens. -- Milton Friedman

The strongest message this Commission can send to the American people is that education must become a new national obsession, as powerful as sports and entertainment, if we are to avoid a spiral of economic and social decline.
-- Prisoners of Time, p. 8.

Thankfully, because I work for the government, I need not obsess about the billable hour. But because I am a lawyer, a parent and a citizen, I am obsessed with education.

Fourteen years have passed since this report was issued. Perhaps a hundred years have passed since the way your children spend their time in school has changed.

It’s about time.

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[1] Prisoners of Time, 40-41.

Changing Days for Students and Teachers -- Part 3 of 4 On Time in Education and the Law

Reset your watches and consider these suggestions from the report on time and learning.

Establish an Academic Day

In order to “reclaim the academic day”, the Commission recommends that students should receive “at least 5.5 hours of core academic instructional time daily.” The Commission understood the implications of such a change: “Many worthwhile student programs—athletics, clubs, and other activities—will have to be sacrificed unless the school day is lengthened." They believed that “all student activities should be offered during a longer school day.”[1]

This recommendation should be tempered with findings from the recommendation to reinvent schools around learning, not time, and the recommendation to invest in technology. Having an academic day may mean different things for different students. And, as outlined by Dr. Shernoff, redesigned pedagogy may make these core academic classes appear more like the additional, “non-academic” classes, or blend them in a way that resolves any concerns about giving up one type of class or program for the other.

Keep Schools Open Longer to Meet the Needs of Children and Communities.

Geoffrey Canada, President and Chief Executive Officer of the Harlem Children’s Zone has often argued that students need more time in school to succeed. Especially, it seems, if we want them to have the right-brained skills that they will need to compete in the flat world (i.e., to be able to take architectural renderings and video game code and create a virtual tour of a library, as Zaki Tahiri, a high school student at the Washington International School did).

Many public charter schools have recognized that for their students, who often come from financially and educationally poor homes, more time at school is critical. One public charter school in Memphis, Tennessee, the Memphis Academy of Science and Engineering, has students attend each class twice a day. The first class meeting is for instruction. The second class meeting is essentially a study hall for students to complete work, but the teacher is there, available to work with students individually or in groups. In some cases, the public charter school leaders sense that students go home to environments that may not be conducive to further schoolwork, and so they extend the school day so all “homework” is actually done at school.

Give Teachers the Time They Need

Invest in Technology

One of the Commission’s concerns was that the practice of sending children home for teachers to have professional development days should be eliminated. “We will never have truly effective schools while teachers’ needs are met at the expense of students’ learning time.”[2] I address these two recommendations together because investing in technology is one way to allow schools to meet the learning needs of teachers and students simultaneously. If students can access electronic or online materials to facilitate their own learning, then students can still be in school and learning at the same time that instructors are in school, learning.

Harvard Business School professor Clayton Christensen predicts that by 2019 half of all high school course content will be delivered online. In the book, Disrupting Class, Christensen and his coauthors talk about how the demands on schools and teachers have dramatically increased. Teachers and principals have been asked to do more, and to do everything differently, but the lengths of the school day and year have remained the same.

Christensen notes that usually the efforts to improve the output of education production have focused on teachers. The use of technology to improve output has also focused on the “technology of teacher-instruction”:

What would you have the teacher do: Skip every other chapter? Talk twice as fast? If instead we focused on the “listener” and thought about connecting the student directly with information through digital electronic technology, would that necessarily degrade the quality of the learning experience? Or might that disintermediation, the shift of work to the student, actually enhance it?[3]

Christensen predicts that “user networks” of students and parents, and then teachers, will emerge with access to software tools so easy to use that the users will “pull” these technologies into classrooms. “These instructional tools will look more like tutorial products than courseware." The products will determine the shape of the organization, rather than the other way around. [4]

The potential exists for disruptive innovations to help us get back to the model of the one room school house to achieve the goal of eliminating poverty. And the goal to leave no child left bored. As teachers use innovative tools to facilitate student-led, differentiated instruction, students may become lifelong learners, ready for successful work, education and citizenship.

Develop Local Action Plans to Transform Schools

In 1994, the Commission explained, “School reform cannot work if it is imposed on the community top-down. Genuine, long-lasting reform grows from the grassroots.” The Commission explained—and many others have argued for similar changes—“that larger school districts can offer families a wide array of alternative school calendars by encouraging individual schools to adopt distinctive approaches. . . . Districts of any size, with a sense of vision, boldness, and entrepreneurship can experiment with block scheduling, team teaching, longer days and years, and extending time with new distance learning technologies.”[5]

For these action plans to work, however, real power must be delegated as far as possible. School districts must empower principals with authority over all the per-pupil funding for the students in those schools. If districts provide services to those schools, they can charge those individual schools. But, all decisions must be made as close as possible to the individual students. When a principal only has discretion over $90 of the $12,000 per pupil allocation of local, state and federal funding, that student is being disserved.

If principals have authority over funding, they can then delegate that authority to teams of teachers who work with students every day. They may decide that one class needs a teaching assistant full-time, while another class needs more computers. They may decide to save money previously spent on textbooks by creating their own textbooks and giving their teachers pay increases.

This delegation is critically important in this age of accountability.

School leaders and teachers cannot truly be held accountable for results if the methods are dictated to them and resources are controlled by others.[6] To empower others, leaders “[f]ocus talent on results, not methods.”[7] “[Y]ou cannot hold people responsible for results if you supervise their methods. You then become responsible for results and rules replace human judgment, creativity and responsibility.[8] Effective leaders “set up the conditions of empowerment and then . . . get out of people’s way, clear their path and become a source of help as requested.”[9]

---

[1] Prisoners of Time, 32.

[2] Id. at 36.

[3] Clayton M. Christensen et al., Disrupting Class: How Disruptive Innovation Will Change the Way the World Learns 116, note 18 (2008).

[4] Id. at 134.

[5] Prisoners of Time, 38.

[6] Paul T. Hill, Lawrence C. Pierce, James W. Guthrie, Reinventing Public Education: How Contracting Can Transform America’s Schools 67-68 (Univ. of Chicago Press 1997).

[7] Stephen Covey, The 8^th Habit: From Effectiveness to Greatness 114 (2004).

[8] Id. at 286.

[9] Id. at 264.

Myth-busting and Reinvention -- Part 2 of 4 on Time in Education and the Law

Think about your children, or children you know and have observed playing, creating, learning.  What kind of state were they in?  Think about watching Michael Jordan when he was "in the zone" (even when he was--sorry, Utah Jazz fans--sick with the flu).  Why was he "unstoppable"?

Now, think about the structure of an average school day at an average public school.

Time and Learning

In 1994, the National Education Commission on Time and Learning wrote: “The boundaries of student growth are defined by schedules for bells, buses, and vacations instead of standards for students and learning.”[1] The Commission explained that because we have and continue to rely “on time as the metric for school organization and curriculum, we have built a learning enterprise on a foundation of sand, on five premises educators know to be false.”[2] The Commission outlined these false premises:

The first is the assumption that students arrive at school ready to learn in the same way, on the same schedule, all in rhythm with each other.

The second is the notion that academic time can be used for nonacademic purposes with no effect on learning.

Next is the pretense that because yesterday's calendar was good enough for us, it should be good enough for our children-despite major changes in the larger society.

Fourth is the myth that schools can be transformed without giving teachers the time they need to retool themselves and reorganize their work.

Finally, we find a new fiction: it is reasonable to expect “world-class academic performance” from our students within the time-bound system that is already failing them.[3]

The Commission points out that “time, the missing element in the school reform debate, is also the overlooked solution to the standards problem. Holding all students to the same high standards means that some students will need more time, just as some may require less. . . . Used wisely and well, time can be the academic equalizer.”[4]

The Commission concluded, “The six-hour, 180-day school year should be relegated to museums, an exhibit from our education past. Both learners and teachers need more time—not to do more of the same, but to use all time in new, different, and better ways. The key to liberating learners is unlocking time.”[5]

Teachers also need freedom to use their time differently. New research has shown that teachers’ job satisfaction—their working conditions—is closely related to student achievement. Thus, teachers and school leaders need “time for reform. They need time to come up to speed as academic standards are overhauled, time to come to grips with new assessment systems, and time to make productive and effective use of greater professional autonomy, one hallmark of reform in the 1990s.”[6]

The Commission had eight recommendations, all of which are timely today:

Reinvent Schools around Learning, not Time.
Fix the Design Flaw: Use Time in New and Better Ways.
Establish an Academic Day.
Keep Schools Open Longer to Meet the Needs of Children and Communities.
Give Teachers the Time They Need.
Invest in Technology.
Develop Local Action Plans To Transform Schools.
Share the Responsibility: Finger Pointing and Evasion Must End. [7]

Reinvent Schools Around Learning

The first of these recommendations is fundamental: “reinvent schools around learning, not time.” In discussing the second recommendation about design, the Commission stated, “Above all, fixing the flaw means that time should be adjusted to meet the individual needs of learners, rather than the administrative convenience of adults.”[8] The Commission made two specific suggestions for redesign under this principle: First, that “grouping children by age should become a thing of the past.” Second, that American schools follow the international model where teachers come to students rather than students going to teachers.[9]

My wife and I recently met with staff at the school of one of our children. The school psychologist, the guidance counselor and our child’s teacher met with us and explained that a series of tests and observations meant our child met the district and state standards for giftedness. They explained and then we all discussed how our child could continue to be challenged and progress using tools in the classroom, things we could do at home and an additional program offered once a week for groups of students who met these standards.

Why couldn’t such an individual learning plan be developed for all students? Federal law requires such a plan for students who are eligible for special education services. Some states include giftedness within such eligibility. And studies have shown that most students deemed eligible for special education services are not really disabled but are not reading well. Programs are being implemented to address that problem sooner rather than later. And many states or districts require learning plans for middle or high school students that outline those students’ anticipated paths to post-secondary workforce training and further education.

It doesn’t seem to be too big a leap to simply incorporate that for all students.

Fix the Design Flaw: Use Time in New and Better Ways

In a lecture (a great video worth watching, by the way)about imagination and how we systematically (though not intentionally) destroy imagination through school, Sir Ken Robinson noted that in Finland, for every 45 minutes of instruction time, students must have 15 minutes of physical activity.

The psychologist Mihaly Csikszentmihalyi coined the term “flow” to describe “the mental state of operation in which the person is fully immersed in what he or she is doing by a feeling of energized focus, full involvement, and success in the process of the activity.”[10] In lay sportsman’s terms, what he is describing is Michael Jordan playing “in the zone.”

Here's a slide from Dr. David Thornburg, which clearly illustrates this concept:

Csikszentmihalyi explains that the following conditions accompany the experience:

1. Clear goals (expectations and rules are discernible and goals are attainable and align appropriately with one's skill set and abilities).

2. Concentrating and focusing, a high degree of concentration on a limited field of attention (a person engaged in the activity will have the opportunity to focus and to delve deeply into it).

3. A loss of the feeling of self-consciousness, the merging of action and awareness.

4. Distorted sense of time, one's subjective experience of time is altered.

5. Direct and immediate feedback (successes and failures in the course of the activity are apparent, so that behavior can be adjusted as needed).

6. Balance between ability level and challenge (the activity is neither too easy nor too difficult).

7. A sense of personal control over the situation or activity.

8. The activity is intrinsically rewarding, so there is an effortlessness of action.

9. People become absorbed in their activity, and focus of awareness is narrowed down to the activity itself, action awareness merging.[11]

Is the school day designed to maximize flow? Is the school year?

In a study on flow in the classroom, Dr. David Shernoff reported that students were most likely “engaged” or in a state of flow when they were challenged, worked in groups and were more active in their learning environments. “Overall, studies on student engagement suggest that traditional academic subjects would benefit by rethinking their pedagogical strategies in order to allow students a better balance between challenges and skills, as well as higher levels of activity and control.”[12]

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[1] National Education Commission on Time and Learning, Prisoners of Time, 5 (1994) (available at http://www.ed.gov/pubs/PrisonersOfTime/Prisoners.html; last viewed Nov. 7, 2008).

[2] Id. at 6 (emphasis added).

[3] Id.

[4] Id. at 7.

[5] Id. at 8.

[6] Id. at 19. I’m not sure how many teachers today feel they have more autonomy. So, I don’t know of that reform was effective or just not widespread!

[7] Id. at 29.

[8] Id. at 31. That time must also be adjusted regardless of the practice that has evolved of families using school as child care so both parents can work outside the home.

[9] This could also potentially save a lot of money that teachers often spend out of their own pockets – decorating and setting up their “own” rooms each year. If the rooms belong to the students, the teachers wouldn’t feel compelled to modify a room that they will only be in for a limited time each day. More rooms could be uniform, based on the learning needs and styles of students.

[10] http://en.wikipedia.org/wiki/Flow_(psychology).

[11] Id.

[12] David Shernoff, Flow States and Student Engagement in the Classroom, Wisconsin Center for Education Research University of Wisconsin – Madison, Statement to the California State Assembly Education Committee (Feb. 27, 2002), available at http://www.amersports.org/library/reports/8.html (last viewed Nov. 18, 2008).

Missouri DESE School Law Resource

Just wanted to point all my readers to this great resource from the Missouri Department of Elementary and Secondary Education on school law. Be sure to check out their School Law Topics and their Index of School Law with citations to statute. Very well done Missouri. Kudos.  

What if Teachers Billed Your Child by the Hour? -- Part 1 of 4 on Time in Education and the Law

Last year, I attended a continuing legal education program on ethics.  One of the topics was billing, and several cases were discussed in which attorneys had violated the Rules of Professional Responsibility through some of their billing practices.  I had recently re-read the 1994 report from the National Education Commission on Time and Learning.  The commissioners wrote: “The boundaries of student growth are defined by schedules for bells, buses, and vacations instead of standards for students and learning." Thinking about the effects of time in the law and in education, I compiled the following thoughts. I appreciate Justin giving me the opportunity to share them here, and I look forward to any criticism or insights from other readers.

Introduction

It’s about education. And it’s about time.

Many attorneys charge clients by the hour. This practice encourages unethical conduct.[1] Some lawyers “pad” their time to meet the billable hour requirements imposed by their firms. They might bill one client for travel time while spending that time doing work for—and billing—another client. Or a senior associate or partner might have a junior associate perform work, but bill the client at the higher senior associate’s or partner’s hourly rate.

At least in the law, sophisticated clients have the choice to select another lawyer if they are not satisfied with the quality of the work. They may also establish a working relationship that limits the number of hours or the rates they will pay for services. They can also end the attorney-client relationship and ask different attorneys to represent them.

Public school students are not adults, let alone sophisticated clients contracting for services from attorneys. They arrive at school, having accepted—not chosen—the length of the school year, the length of the school day and the minutes per day that will be dedicated to each specific course. In most cases they also attend a school that has been chosen for them based solely on the location of their residence.

Imagine clients forming relationships with attorneys under those circumstances. Attorneys decide which clients will be represented by which attorneys, and they base their decision solely on the location of the clients and the attorneys. What the client’s previous experience has been and what the client’s capabilities and future plans are have no bearing on the assignment.  Attorneys dictate to the client how much time they will dedicate to which particular assignment.  And the clients pay regardless of the quality of the service, regardless of whether the service provided actually gets the client closer to the goal it had at the beginning of the relationship.

Oh, and don’t forget, at any time during the relationship, the supervising attorneys can change which attorneys work for which client, where the client will go to receive consultation, and the supervisors can even decide to place the poorest clients in the care of the least capable attorneys.  And the clients cannot go elsewhere. So much for the arm’s length relationship.

Most clients seeking legal services presumably want the best service at a price that is related to the potential risk or reward of non-representation or poor representation.  Corporate clients can measure the value of getting the legal work they need at a given price, and then decide which attorneys to engage (looking also at the attorneys’ experience and suitability to the task at hand).  Litigants can measure the damages they anticipate paying or receiving and make a conscious choice about representation based on their estimates of the chances of success a given firm or attorney is likely to achieve. Clients have knowledge, choices and influence (money).  Public school students cannot choose their education service provider.  And, even if they have some limited choices, through public charter schools, open enrollment policies or choice under Federal or state accountability laws, they do not have adequate knowledge or influence to wield.

Public school students don’t yet know the potential return to be made from their investment in education. Some of their parents may understand, but many do not.  Public school students can’t meaningfully gauge the potential impact a given teacher, school or curriculum may have on their success in post-secondary workforce training, further education or citizenship.  Public schools are allotted money on a per pupil basis from federal, state and local sources.  That money is distributed based on the actual attendance of actual children. But, for the most part, the district decides how and where and when to spend that money. The students—the actual consumers—do not get to choose how to invest their resources. The parents—who have actually paid for this investment through property and sales taxes—are also powerless to choose.[2]  And even the lower level “associates”—principals and teachers—do not get to decide how to spend the resources allotted for those particular “clients”.

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[1] One might argue, as Scott Turow did, that any billing by the hour violates one of the Rules of Professional Responsibility, which all lawyers are expected to follow. “The Billable Hour Must Die”, ABA Journal, Aug. 2007 (available at http://www.abajournal.com/magazine/the_billable_hour_must_die/; last viewed Nov. 7, 2008).

[2] Those parents who opt to send their children to private schools or to homeschool their children are forfeiting services they have paid for.

A Day of Remberance

On today's MLK day, the day before the inauguration of Pres. Obama, I spent pretty much the whole day thinking about Charles Hamilton Houston. For me there is so much symmetry between Obama and Houston (and so much to learn from both of them). Besides the obvious things like the Harvard Law Review and being law professors, they shared an ideological symmetry. Both fundamentally believed in the American system. That if tested, America could and would make the right choices. Both men put America to the test and came out making us all more hopeful for our futures. So, tonight, on the eve of the big day I have a delighted, peaceful smile on my face for Mr. Houston. The man that brought down Jim Crow and created the space for Barack Obama. Always good to remember those that spent their lives working for our future.

Introducing Rich Haglund – Guestblogging on Time (in Law and Education)

Just wanted to make readers aware of our next series here at the Edjurist, Time in Law and Education, which will be authored by Rich Haglund. Rich is currently the General Counsel to the Tennessee State Board of Education and he has also worked for the Tennessee Attorney General’s Office on education issues. Rich is also co-editor of the School Law Reporter, the monthly case summary publication from the Education Law Association. Rich additionally founded Athademic, a participating organization in the Open Source Teaching Project. Rich got his B.A. from Boston University and his J.D. from Vanderbilt. You can learn a little about Rich (and about what a State Board of Education General Counsel does) in this interview.

The series will address how schools use time with recommendations about how it can be used more effectively. Rich also will make comparisons between how time is used and compensated in law as compared to the educational system. I got a preview of the series and it should stimulate some thought amongst Edjurist readers, especially in how some of his recommendations would play out from a legal and policy standpoint. Should be a great series.

$7,082,502,544.32

That's the amount of money ready to be invested in schools in America's cities. The U.S. Conference of Mayors has released a report outlining all the projects that are "ready to go" that could potentially be funded by the Stimulus Package that is being put together right now in Congress with guidance from the Obama Administration. Ready to go meaning that the project would begin in 2009 and would be finished by the end of 2010. Also, remember, this is not all the school projects across the U.S., it is just those in cities with populations over 30,000 (the required population to be a member of the U.S. Conference of Mayors). 

The list of school projects is quite interesting. There are 1066 line items, but the line items vary greatly from projects under $10,000 to projects over $100,000,000. The descriptions of the projects also vary widely. I've included some comparisons below so you can get a sense of the requests.

Overall, I think there are wide differences in the types of Stimulus spending requests. I am concerned that the list is populated with a lot more fixing roofs and a lot fewer installing fiberoptic networks, but I was impressed with some of the requests. There were a lot of projects that were meant to green schools, and it is hard to see how those will not be funded under the Stimulus Package. While I understand that school infrastructure is a necessary operation and in tight budget times upgrades to facilities are few and far between. But, I would much rather see these Stimulus dollars going to projects that change the operation of the school (such as solar panels, wireless access, fiberoptic connections), rather than projects that just maintain the status quo (new boilers, roofs, busses, etc.).

Anyway, feel free to check it out and see what your city is asking for.

Friday Snippets 1/16/08: Weather Caused School Closings in Hawaii?

Schools here in Lexington today were closed because of bone-chilling cold temps. Schools in Hawaii were closed this week because of high wind. I think I would prefer the wind.

Putting the sex, back in sex-education (nice, if slightly misleading title).

This is interesting on Newspapers.

Mandatory donations to get seats at a basketball game are becoming more popular. Louisville is "demanding" a $2,500 "donation" per seat, per year to be eligible to "purchase" seats. Once a donation becomes "mandatory" doesn't it cease to be a donation? This is a lawsuit in waiting.

Louisiana approves evolution teaching guidelines.

Watch for a whole lot of headlines like this one over the next few months.

Nevada's higher education budget cut proposals are the worst I have seen so far. A 36% proposed cut. Now, surely it will be less, but anything over 20% is unmanageable.

More teacher's unions asking for pay raises.  

Utah's Omnibus Bill lawsuit is an interesting one. The claim is that education bills should not have been lumped in together at the end of the session.

More states are competing to get out of state students with in-state tuition rates (and there's and SIU reference). Are we going to see a day when the out-of-state rate applies only to students coming from outside the State ... as in the United States.

Detroits schools are going to get the toilet paper they asked for. Ahh, Detroit.

A Hebrew language charter school? These charter schools have provided the space for a little langauge way because this follows on the Arabic language charter schools across the country. South Carolina has a charter school lawsuit that might see their Supeme Court.

Here's a problem for schools caused by the economy, more homeless students.

And, in 2009, I think I am going to cut back on the blogosphere links. I'll do a few that really catch my attention each week, but I am not going to run through all the ed. law blogs. 

There is a new blog I want to point you to this week: The Ability Law Blog by Randy Chapman. It focuses mostly on disability issues related to schools.

Leadertalk, another blog in the CASTLE empire, has officially moved over to an Education Week blog, so update your readers.

NASSP's Principal's Policy Blog has new guidance from ED. on choice and SES.

Friday Fun: The Wine Library -- this guy is awesome. Love to see people so passionate. 

My 2008 Blog Book: Is It Worthless For Tenure?

2008 Blog Statistics

I was preparing some university evaluation criteria and I was thinking of ways to include the blog, as it is a big part of what I do. Because it is hard to make comparisons between online writing and traditional publications, I thought I would try to get a word count. At least that would give me some comparative figure because I know my typical educational journal article is about 8,000 words and my typical law journal is about 10,000 words.

Last year I wrote around 110,000 words on the blog in 252 entries (I took a few off for the entries that Scott wrote and some automatic text my blog editor generates).  

I got the word count by copying all the entries into Word. And, since I was in Word, I went ahead and generated all the statistics, which you can see in the top image. So, for the sake of comparison, I also provided the same statistics for my dissertation (the bottom image). Obviously, the statistics sort of speak for themselves here. In terms of the number of words, last year I wrote 3 dissertations. Dissertation StatisticsMy actual dissertation, plus two more dissertation's worth of text on the blog. Or, we could say that I wrote about 12 journal articles worth of words. And, this is not even counting the videos I made this year. 

So, I figure my blogging activity in 2008 is at least worth about a book. In fact, I went ahead and prepared that book (in case anyone calls me out on it) and I am officially going to publish it here. (Go ahead, download it - you can read it on your Kindle).

The Edjurist: 2008 Blog Book (Word)

The Edjurist: 2008 Blog Book (Adobe)

You'll find links embedded in those so that if you want, you can link back out of those documents to the Web. In effect, its a more interactive book than normal (even if it does have substantially less organization and/or coherence). 

Anyway, the point here is not to brag on all the writing I do on the blog, it is to point out the absurd world of tenure and evaluation reviews that fail to take this into account in anyway whatsoever. Realistically, I can put the blog as "other writing" if I'm lucky and "service" if I'm not -- either of which really count very little. What counts is journal articles ... 12 of them, in fact, over 6 years. Oddly, remember, that is about the word count equivalent to what I wrote on the blog this year. 

Now, I will absolutely grant that most of what I write on the blog is not as high quality as what I write in law and education journals. Also, even though people comment when I am wrong, the peer review aspects of blogs in no way equal the peer review quality in journals. So, there is certainly a differential in worth between 10,000 words in a blog and 10,000 words in a peer-reviewed journal. However, those 10,000 words in a blog are not worth nothing, as is essentially the case presently in tenure committees around the country.   

I have obviously thought a lot about what to do about this problem (this is an educational law problem after all) and I really think evaluation and tenure documents need to include a distinct category for electronic publications. Just as no two peer reviewed journals are created equal (my stuff in no way is equivalent to what comes out of the medical school), no two electronic publications are created equal. Just as readership statistics are rarely considered in peer reviewed evaluations, I don't think readership statistics should play that large of a role in considerations of electronic publications. I am not against them being included, but we judge the quality of these journal articles by reading them, and we should do the same for electronic publications. Just as respected peers judge the quality of a tenure & promotion applicant's print materials, they can do the same for electronic materials. Drs. McLeod, Becker, Brady, Gibbs, Upstead, and many others, including practitioners in both education and law, can speak to the quality of this blog and their opinions can and should be considered in evaluating my contributions to the field.  

Luckily, I am the co-chair of the Technology Committee here at the College of Education and I think that this topic is going to be high on my agenda (once we get the new website up and running). I don't think we need special consideration for electronic publications, we just need some consideration because clearly some blogs (perhaps this one - hard to ignore 100,000 words in one year - that's a lot of google searches answered!) are contributing substantially to the field and should be considered in tenure and promotion decisions.   

Let's Talk About Teachers Having Sex With Students

Alright, this is absolutely one of my least favorite topics to write about, but since it has been grabbing a lot of headlines lately, I figure we might as well get it over with. This is sort of like plane crashes. It happens only infrequently, but when it does it is guaranteed to grab national headlines. There is far more fear out there of sex-crazed teachers than there needs to be (this affects (reported cases) less than .01 percent of teachers per year). It also doesn't help that there is this national infatuation with this issue (for various nasty reasons I am not going to mention). But, let's deal with it anyway:

Let's start with the headlines.

Story #1:

Story #2:

Alright, those are the two big ones this week.

First, legally, there are a few different issues here and let's address each one briefly. 

1. State Anti-Teacher Sex Laws: These state laws are becoming more and more popular and most states have adopted such a law or in some stage of the process of trying to get such a law. Obviously they vary in their provisions, but the general point is to prevent or prosecute teacher sexual abuse of students. Like the one in Washington they contain criminal penalties for teachers found guilty. As more and more states adopt these laws, local prosecutors will have another weapon with which to attack teachers that engage in sexual conduct with their students.  --- As far as the Washington case, that is a clear example of the limits of these types of criminal laws. The law was written to protect "minors" - which does not include 18 years olds. Thus, that law cannot be used to prosecute that teacher. However, the teacher will lose his job, lose his license, and could be subject to civil actions (see below). And, since this case got so much attention, I would assume many states will either move that age up or just say students generally.  

2. Statutory Rape Laws: These laws vary greatly across states, but generally criminalize sexual relationships with children in their teens, up to about age 16-18 (depending on the state). The recent trend has been to increase this age. While there are various loopholes and this is a complicated area of law, as a general rule teacher sexual abuse of students (other than perhaps seniors in high school as was the case in the news story above) will probably also amount to statutory rape, which has a lengthy prison sentence, among other punishments (including inclusion on the sex-offender list).

3. State Child Abuse Laws:Because we are talking minors and we are talking abuse, these laws kick in as well. Sexual abuse is a standard type of abuse defined in these statutes, so all the possible criminal ramifications contained under these laws can be brought to bear on the teacher. Here is a good national resource on Child Abuse, but check your state laws.

4. Teacher Dismissal Laws: Outside of state law violations for criminal conduct (above), there are also legal implications for a teacher keeping their job. Immorality is a teacher dismissal criteria in most states. With no exceptions, teachers can be fired for having sex with a student under these immorality state law provisions. A teacher that has sex with any student, even a student over 18, should immediately be fired, pending due process. The teacher should be placed on paid leave while the due process moves forward and as quickly as possible the Board of Education should issue a ruling firing the teacher. 

5. State Teacher Certification Laws: A fifth legal issue related to teacher sex with students is state certification laws. Not only will teachers be fired 100% of the time for having sex with a student, but more often than not they will also lose their teaching license as well. An October 2008 report found that between 2001 and 2005, 2,570 teachers lost teaching credentials for sexual misconduct. Again this process involves due process and the teacher has a right to defend themselves to the state teacher certification board, but with adequate evidence teachers will almost always have their licenses revoked. 

6. Various Tort Actions: All of the above address government punishment of teachers, but individual students can also sue teachers under various theories for assault, intentional infliction of emotional distress and others and recover substantial monetary damages against the teacher. 

7. Child Abuse and Harassment Actions Against School or Other Employees: When teachers sexually abuse students, there is frequently more than just the offending teacher involved legally. Abused students have a private right of action to bring suits against schools if there were aware of the harassment and did nothing to stop it. Also, because this may amount to child abuse, the mandatory reporter laws kick in and other teachers that failed to report could face fines or prison time (and possible revocation of their teaching license as well).

Those are the big legal issues at play and, depending on the case, there might be others as well. But, you can see these are pretty complicated legal cases, but they always end with the teacher losing their job, probably losing their license, and probably going to jail for a while under various laws.

Second, ethically this is a no-brainer, obviously. Teachers, don't have sex with students. Don't even think about having sex with students. Don't even have flirtatious relationships with students.  I feel like I don't even need to say that. Also, obviously, administrators and other teachers need to report this when they even have a hint that it is going on. Just like any other child abuse reporting, that is both their duty under the law and their moral obligation to protect students that may not be able to protect themselves.  

But, with that out of the way, there are a lot of other less obvious ethical issues here. What is the ethics in pre-service teacher preparation not making future teachers aware of these legal ramifications of their actions? What's the ethical responsibility of state legislators, regulators, district personnel, school leaders and others? As part of their law, South Carolina instituted a sex-abuse prevention training program. Maybe that's worth looking into? And all those ethical questions need to be couched by remembering we are talking about an extremely small fraction of the teaching population that ever has problems on this issue.

Anyway, knowing the legal issues surrounding teacher sexual-abuse is a good place to start, if nothing else.

2009 or 2010?

Talking about 2010 now for NCLB Reauthorization.

In my opinion, I would rather wait until 2010 and have Congress' and the President's full attention rather than a hurry-up reauthorization in 09. The benefit to an 09 reauthorization, though, may be limited federal expansion as any new spending right now will be hard to pass outside of infrastructure issues. So, for you limited federal involvement types out there, you may want to root for an 09 reauthorization. But, I think there will have to be a dramatic improvement in the economy and our foreign policy situation for education to get any serious treatment in the fall. 

By the way, if you want to watch the Arne Duncan confirmation hearings going on today, you can watch them here.

New Blog/Resource at the First Amendment Center on Religion in Schools

The First Amendment Center is in the progress of updating their religion and schools content and presentation. The new site is here: http://www.religionpublicschools.org. I am not sure whether everything will be updated to reflect the new format or whether the page will just link to current First Amendment Center formats. I do like the new presentation of the information as it is much easier to navigate and it is a legal resources that principals should bookmark.

Also, Charles Haynes' latest post on Beyond the School Wars is a good read on religion, public schools and avoiding conflict. The historical information was great and I especially liked his recommendation that pre-service teachers need to have some background in religious liberities before entering the classroom.

Who Says Ed. Leadership only Prepares Principals and Superintendents?

Sometimes we prepare Governors too. Congrats to Gov. Perdue who was inaugurated on Saturday as the first female Governor of North Carolina with her Ph.D. in educational administration from the University of Florida.

The Public Service Academy - Let's Hope it Happens

The big education story in the New York Times today is on the Public Service Academy and I wanted to highlight it because I am indirectly connected to it through a friend of a friend and it is gaining momentum to the point where it is probably more likely to happen than not (a lot of new folks in the Obama Administration support it, although not Obama himself, yet anyway). 

Here's the idea: We have West Point to train the best of the best in the Army. We have the Naval Academy and the Air Force Academy. Why not have a top flight Academy for Government Servants as well? Students would get a four year free ride in exchange for five years of paid public service. In theory it is a win-win (as long as those students prove useful for the money the government spends on them). 

My friend Suzanne Eckes, who worked in Mississippi with the guy who started it, told me about the idea as far back as a couple of years ago and I have never settled on whether I liked or disliked it. Several of the campuses around D.C. already serve this purpose, such as George Washington U., which my sister attends. And what of all the public oriented programs around the United States such as the Patterson School of Diplomacy here at UK? Plus, I don't really like the name (I hope the Congress gives it a name other than the Public Service Academy) and the logo is even worse (I think the need to hire a creative director!). On top of all that, there is no guarantee this is going to work. Are the best and brightest really going to go to the Public Service Academy rather than Kennedy School of Government? The military academies pretty much have a monopoly whereas this school would have to compete with the best of the best that have been around for centuries.   

Well, I am officially going to support this idea and I will probably send a note to my Congressmen here in Kentucky about it. The fact is that we do need people more excited about being in government. Does anyone send their kid off to college to be a bureaucrat? Yet, as these hard times have made clear, we need to reflect on who really runs this country? Who's got this country's back when times are hard? Its our government servants that are there to steady the ship. As a country, we need the best and brightest to be willing to leave Wall Street and take a job on Independence Ave. (its the street on which the Department of Ed. sits). Yes, I think there will be challenges for the PSA (see, that doesn't work at all), but for a relatively low price (200 million/year) we could potentially train a consistent crop of educated and informed bureaucrats that could make our government better from the inside. I think that is a chance worth taking. 

Back to It - A New Education Senator

Sorry I have been on a hiatus. I've had my head buried in Powerpoints trying to finish a product up. Let's do some news and notes:

First Mark Walsh has a nice summary of some of the events of the past couple weeks while no one was paying attention, so give that a read. I think the teacher drug testing case is an especially interesting one.

Second, hope you didn't miss that Michael Bennet has been appointed the junior Senator from Colorado. Why is that important? Well, for one he was Denver's Superintendent of Schools so he will likely be put on the Senate Education Committee, if there is room available, and he is young ... 42-43ish ... so he is going to potentially be around a while. He could be a big voice in education for a long time. Secondly, though, let me just answer the question you are thinking ... who is Michael Bennet? Well, he is a lawyer, trained a Yale Law and who worked at the Justice Department. He has also worked for some companies and worked as a political aide. So, now there is another major example (besides Joel Klein) of a lawyer stepping into the superintendency and being recognized for it. Anyway, it should be interesting to see how he plays out.

Otherwise, the financial crisis is still dominating the education headlines. California is looking at mid-year layoffs right now, which is always very difficult especially in an expensive city like LA. You got colleges enrolling fewer students and losing faculty. Teacher salaries are frozen. Schools are buying fewer books. You name it right now. And, we are probably not at the bottom yet as many legislatures have not finalized their budgets - so it is likely to get worse before it gets better. Happy New Year everyone!

Controversial New FERPA Rules Take Effect Next Week

Some controversial new FERPA regulations are set to take effect on Jan. 8th. FERPA stands for the Family Educational Rights and Privacy Act and in schools, both K-12 and higher ed., it is the set of regulations that govern how student information is released. The Act authorizes the Department of Education to pass regulations clarifying the details of the law and it is under that authority that the DOE is releasing these new regulations, which the Wall Street Journal called the most sweeping update in twenty years.   

NSBA's LegalClips sums up the provisions in the new regulations thusly: 

The final regulations clarify permissible disclosures to parents of eligible students and conditions that apply to disclosures in health and safety emergencies; clarify permissible disclosures of student identifiers as directory information; allow disclosures to contractors and other outside parties in connection with the outsourcing of institutional services and functions; revise the definitions of attendance, disclosure, education records, personally identifiable information, and other key terms; clarify permissible redisclosures by state and federal officials; and update investigation and enforcement provisions.

The Student Press Law Center has come out with a harsh criticism of the new regulations as unduly limiting the public's ability to get information about the performance of schools and students. But, having read some of the details on this, I just don't see that much wrong with these amendments. I think the expansion in the definition of personally identifiable information is not that much different from the original. The new language is essentially whether a "reasonable person in the school community" could identify the student in the educational record "with reasonable certainty." That doesn't strike me as an unreasonable definition, but I would agree that it is likely to make school officials even more restrictive in the types of information they allow the public to see. As the SPLC notes, simple redacting may not be enough anymore under these regulations ... but I don't really see the problem with that. Perhaps you disagree, but I don't really have a problem with the regulations privileging privacy over accountability, which is what the SPLC complains about. 

Undoubtedly there is a lot of misinformation out there about FERPA and it is one of the least understood of the federal laws that apply to education. These new regulations surely do not help that as much of the new regulatory structure is adding additional requirements on schools. For instance, if a school wants to contract with an outside evaluator to run some of the school's data, there is a whole new set of procedures to assure the outside evaluator treats the student information correctly. Additionally, these regulations require new paperwork between schools and researchers that are using student data. So, I don't really see anything in these regulations that are going to make this easier to understand for school officials. But, I also don't see anything in the regulations that strike me as inappropriate. Most of the changes seem to make some sense. The DOE even incorporated the Supreme Court's ruling in Owasso. Overall, I don't see anything that is going to be too difficult for schools to deal with. But, feel free to disagree in the comments section. 

Some Goodies: 

Here is the DOE's Dear Colleague Letter on this.

Here is a section by section analysis and here is the Federal Register section on these changes. 

Also, the Gadfly has some good links on this. 

h/t Scott McLeod

Merry Christmas All

Merry Christmas everyone. Yes, I said it and I am proud of it. Christmas is a pretty American thing these days, so wishing someone a Merry Christmas is just a nice holiday greeting - it is not advocating religion as I have stated repeatedly over at Dangerously Irrelevant. Hope you all have safe travels and enjoy the time with your families. And, don't forget to keep our folks overseas in your prayers. One of the bittersweet aspects of this Christmas is that a member of our family, my cousin, is spending his holiday in Afghanistan and this is likely the last Christmas for a while that we will get to spend with my sister and brother-in-law who are both in the military.

Also, I want to thank eveyone for another great year here at the Edjurist. We had a lot of changes this year and we ended the year with more readers and subscribers than we started it, so I am thankful for that. We signed on with CASTLE this year. We redesigned. We added contributors and lots of other stuff. Also, this has personally been a great year for me too and I am extremely thankful for that. A new job for me and my wife. A new house. A new town. New school for my son ... just lots of new stuff that pretty much all turned out great. It has been a memorable year and I am happy to be able to share some space with all of you. Let's hope 2009 is just as exciting.

The Christmas Debate Continues

Earlier I posted on the competition Scott McLeod at Dangerously Irrelevant has going on for egregious Establishment Clause violations. Well, now I am imploring you to go over and read/participate in the raging Christmas and Establishment Clause debate taking place there. There are scholars and practitioners on all sides and it has gotten serious enough that we are starting to cite sources. There are already 50 comments on his post, so feel free to join in the "holiday" conversation.

Update: I have now been called a dolt and have been portrayed as a dancing elf. I told you this was a good conversation.

Friday Snippets: 12/19/08 - Can I Get a Vacation?

This is scary for Colorado's higher ed. institutions. Not likely, but scary.

Air quality standards for Indiana's schools? No more building by interstates I guess.

Super interesting case at the N.C. State Supreme Court over whether students are entitled to a summer vacation or whether the district can unilaterally assign them to year-round school.

The Missouri law that resulted from the Drew cyberbullying case is being used quite a bit already.

The Georgia Bible Class law is not really being used much.

Why teacher's unions get a bad name.

Judge rules that Montana's legislature made a good faith attempt to fix their funding issues.

Around the Blogosphere:

Religion Clause has an interestingly defiant football coach in Texas that insists on praying.

Karl Romberger has a variety of Pennsylvania goodies this week. As does Pam Parker for Texas.

Wrightslaw examines the meaning of "day" for special ed. purposes.

Kevin Riley at Leadertalk reflects on how bullies invaded his school.

NASSP has some new legislation introduced by Sen. Clinton that could help school leaders.

For your Friday Fun:

Now this was a good use of time. I like it when people take pride in our founding documents.

(HD) A More Perfect Union from Andrew Sloat on Vimeo.