Educational Adequacy and Fiscal Reality

Two recent developments highlight what I think portends lots of coming chaos in school finance.  The first is a suit filed by parents in a middle-class Kansas school distict challenging the state's limits on local property tax millage rates (enacted in response to Kansas's numerous school finance cases).  The parents allege that their First Amendment right to direct the education of their children is infringed by the caps.  They also allege that their Fourteenth Amendment rights to control their own property and the uses to which it is put are infringed.  This is a novel claim, but it illustrates very clearly the conflicts that judicial rulings on systemic equality of educational resources create--simply put, these equalities cannot be achieved without limiting local control, and if these parents are correct, there are federal constitutional interests in local control of educational expenditures.  The parents have Harvard Law Professor Lawrence Tribe on their side, so this is not just a shot in the dark. 

The other development is the re-opening, once again, of the Abbott v. Burke case in New Jersey.  This time, the plaintiffs challenge the $800-plus million in budget cuts that the Christie Administration has directed at the NJ schools to help close an $11 billion dollar budget gap resulting from the recent economic times.  The most recent prior action of the New Jersey Supreme Court (the most activist court in the nation on school finance) was to grudgingly approve the latest set of funding levels (enacted before Governor Christie was elected), on the explicit assumption that these levels would not be reduced.  Now that the funding levels have been reduced, it is likely that the court will once again find its way into the case.  By my count, if the new set of hearings results in a written decision, this will be the 21st New Jersey Supreme Court opinion in the Abbott case.  Pretty remarkable. 

The question now is what will happen as a result.  If the courts in both cases rule for the plaintiffs, will the political branches comply?  In Kansas, this would seem to be easy, as the legislature can just remove the caps from the plaintiff district, but the suit in Kansas did not open up the prior Kansas Supreme Court decision--it is an independent challenge to the legislation based on federal constitutional rights, so the Kansas legislature may be faced with an equality mandate from its own supreme court and simultaneously an order forbidding the application of its equality legislation from the federal courts.  In New Jersey, it's hard to see this being resolved without a constitutional confrontation, unless the court completely capitulates to the Governor's arguments that the state just doesn't have the money.  The really scary thing is that, considering the coming end to the ARRA and its federal subsidies of state education systems, these two cases are likely only the tip of the iceberg. 

Memphis City Schools Votes Itself Out of Business

Strange things are afoot in Memphis, Tennessee.  Some very brief background – in Memphis and Shelby County, we have both a city district (approx.. 100,000 students) and a suburban county district (approx. 45,000 students). 

Just before the holidays, the city district voluntarily voted to surrender its charter, effectively dissolving the district.  Since the county is the entity tasked with educating citizens, the ultimate result of this is likely to be the absorption of the city’s 100,000 students into a very large county-wide mega district.  Before anything becomes official, a city referendum putting the question in the hands of the voters must pass.  That is likely to happen in February, although there is much legal wrangling about the procedure and status of that vote.

This is a fascinating (and highly contentious) time with all sorts of undercurrents of race, history, and of course, politics.  But I’m wondering if y’all have heard of anything of this sort happening elsewhere?  On this type of scale?  With a huge school system basically voting itself out of business?  I would love to hear your thoughts (and I’m happy to fill in details for those who are interested).

Proposed Bill in Kentucky would bar undocumented students from attending public colleges and universities

A bill filed for the upcoming session of the Kentucky legislature would deny undocumented students admission to public postsecondary institutions.  The issue of permitting undocumented students to enroll at public colleges and universities has resulted in national debate and in pointed conflicts in several states.  Some states, such as California, have opted to allow admission and to permit qualifying undocumented students to pay in-state tuition.  Recently, in Martinez v. Regents of the University of California, the California Supreme Court held that the state’s policy did not violate federal law.  Other states prohibit undocumented students from receiving in-state tuition rates.  The proposed legislation in Kentucky would follow the approach taken in South Carolina and ban enrollment by undocumented students.  Federal legislation, the DREAM Act, to permit undocumented students a path to legal status through enrollment in postsecondary education or enlistment in the military has failed to gain traction in Congress for several years.

 In Plyler v. Doe, 457 U.S. 202 (1982), the U.S. Supreme Court held that a state could not deny a free public elementary or secondary education to undocumented students, but the decision did not apply to higher education.  Thus, a sharp legal contrast exists for undocumented students when it comes to access to higher education in comparison to elementary and secondary educational opportunities.  From my point of view, the proposed legislation in Kentucky represents ill-conceived policy.  Immigration policy in the United States is certainly in need of revision, but denying a higher education to students who were brought to this country by their parents, often at a very young age, and who consider this nation their home makes little sense and comes across as less than humane. Rather than solving any problems, the proposed legislation would only exacerbate the types of challenges we face with our national immigration policy.  

Book Reviews: Future of Management - Where Good Ideas Come From - Grand Design - Drive - What Technology Wants - Macrowikinomics

My holiday reading list was pretty diverse, so wanted to get the reviews out in case any of you have a few days left to squeeze in a book. Since I haven't done one in a while, I thought I would also include some of the other books I read over the last couple months that caught my attention.

Drive: 4.7 out of 5 (Amazon) (Overview Video) Daniel Pink

I really liked this book ... and I didn't think I would going into it as Pink's previous work didn't blow me away. But, he is really growing as an author and he found a topic that he hit out of the park. There are so many good lessons in Drive that it is hard to identify just one or two. But, especially for university folk like myself, the motivations that he identifies as the primary motivations for working are very accurate, at least in my case. But, the larger lesson for education is that our current workforce has a lot of latent capacity inside of it if we can find ways to tap into the internal drive already existing with this individuals. Anyway, just put it on your must read list.

What Technology Wants: 4.5 out of 5 (Amazon) (Overview Video) Kevin Kelly

This book blew my socks off. It caused me to fundamentally reconsider how I understand and define this technology thing. Now, that said, the score suffers because it is really deep and, at times, boring. He goes back to the beginning ... all the way to the beginning of humanity. And, let's be honest, he makes some guesses as to the historical development of technology. I thought that was really not necessary. Plus, his broad new concept, the "Technium," was acceptable but a stretch But, aside from that, the reconceptualization of technology is totally worth your time. Schooling, after reading this book, must be considered a technological enterprise. Nearly everything that we teach children in these places are technological tools. To the point that technology at some point is indistinguishable from humanity. Our technology distinguishes our species. Anyway, you can see how it can get deep quickly. But, give it a shot. It made a lot of sense to me.   

Macrowikinomics: 3 out of 5 (Amazon) (Overview Video) Don Tapscott & Anthony Williams

Didn't think this book was necessary. Don is stretching it a bit for a few more bucks. This book has good new examples over Wikinomics, but it is not necessary to read both. If you have not read either, I guess you can start with Macrowikinomics for more recent and relevant examples, but I really couldn't distinguish many brand new concepts articulated in this second book. Probably best just to consider this a second edition. I'm actually looking forward to Anthony Williams just striking it out on his own soon.

The Grand Design: 4 out of 5 (Amazon) (Overview Video) Stephen Hawking & Leonard Mlodinow

Yeah, I'm a pocket physics fan. Some people read novels for fun ... physics (at least this extreme surface-level, kindergarten variety physics) for me. If you have not heard of and have no idea what string theory or quantum theory means, this is not the book to start with. Instead, start with Hawking's previous work here or this one by Brian Greene. But, if you have kept up, this book does 2 basic things. First, it makes the case for M-Theory, which isn't so much a theory as it is a collection of possible hypothesis and the uber concept to string theory. But, secondly, and what has gotten Stephen into more trouble, is that he thinks a theory like M-Theory (with multiple universes and a rationale behind the big bang) provides no need for any initial external spark (read: a God). What struck me, though, is how nearly he came to actually making the case for intelligent design (the theory that there had to be such an external spark/creator). In fact, he makes a rather compelling case for it and then goes on to cite most of the big historical names in science as supportive of such a theory. Then, when he has you adequately down that path, he explains how a concept like M-Theory (which is, for better or worse, about the best we have thought of so far even though it requires an additional 7 hidden dimensions we have not yet found ... but, the math works out nicely) could explain how the existing physical properties of the multiverse (yeah, I guess that's a word now) could have given rise to ... well ... us and our situation on Earth. Anyway, yeah. That's it.

The Future of Management: 2.8 out of 5 (Amazon) (Overview Video) Gary Hamel

I didn't like this one, although I could see how many others would. I actually stopped several months back after the first chapter or two, but Scott M. recently convinced me to give it another shot. And, I will say, that is did get better as it went. If you are going to read it, skip Part I, skim Part II, and pick it up in Part III. Basically, it is a book for existing managers, not an untenured assistant university professor like myself. I could see how my Provost, for instance, would like this one. But, personally, there were just some things I couldn't get over. For instance, the use of the word "manager." I hated it. If people think of themselves or, even worse, call themselves a manager ... they have already lost. Yet, the author explictly teaches "Strategic and International Management." Hmm ... yucky. It could be a generational thing, but when the author is very adamant in explaining about the examples he cites (Whole Foods, Gore & Google) that a major advantage is the elimination of managers ... why are you still teaching management? Generally, I thought this book was just a retread of concepts already on the table by the real innovative authors for the business school community. And, toward that purpose, it was a good book. But, outside of that, there are other, better books that seem to say the same thing.

Where Good Ideas Come From: 4.8 out of 5 (Amazon) (Overview Video) Steven Johnson

Let's end on a high note. This has been one of my favorite books recently and it caused me to change some of my work habits. Now, this book might be custom fit to me, so I might be over-rating it from a general population standpoint. I happen to be actively trying to build such places to generate good ideas for Kentucky education. So, for that purpose, it was the perfect fit for me right now. Concepts like liquid networks and platforms are the kinds of concepts that I lie awake at night thinking about (this is why I need physics, or baseball, to clear my head). I am a slow hunch kind of guy, as described in this book. I mull over ideas for years. For instance, I am still not sure what I think about the church/state/schools issue. Just search the blog and you'll see I've been wrestling with it for years. Also, I am very interested in environments, as I recently obtained 1100 square feet at UK for the Lab I've been building. So, starting this spring, we are going to use that space to intentionally get people to mix ideas together. I'm hoping to start a lunch series with speakers from all over campus just to get us thinking. Anyway, this is a solid author with good things to say in a super accessible format. Give it a read.  

That's it for now. I'll try and review some of the education-based books I am reading soon to try to focus us in a little more. Anyway, I enjoyed my holiday reading. Hope you did as well. 

Washington (State) Special Education Funding Challenge Fails

At the end of last week, the Washington Supreme Court issued its decision in School Districts' Alliance for Adequate Funding in Special Education v. State (link to majority opinion).  The court rejected a challenge to the adequacy of special education funding in the state, holding that any such inadequacy was not shown "beyond a reasonable doubt."  At first reading, this seems to be an odd standard for determining educational adequacy. 

However, the court took pains to note that the "beyond a reasonable doubt" standard of unconstitutionality is not an evidentiary standard, but a way of calibrating the extreme deference that the court affords legislative policy judgments.  Thus, on a broader reading, the decision seems in line with the current trend in the adequacy cases to (1) reach the merits; but (2) apply a highly deferential standard of review (see my posts on Colorado, Connecticut, and Missouri). 

The court also hinted that the challege to the statute's constitutionality was an "as-applied" challenge, rather than a "facial" challenge.  Bill Thro's most recent article would argue agaist that characterization for state constitutional challeges to funding statutes, and I tend to agree normatively.  Nevertheless, descriptively, the way the case was presented to the Washington court, I think that the "as-applied" label might fit there. 

By way of shameless self-aggrandizement, I must also point out that two concurring justices saw fit to cite my recent Alabama Law Review piece in criticizing the "beyond a reasonable doubt" standard of constitutionality. 

National Education Finance Conference

I am a little late in posting this, but 2011 will mark the inaugural year of the National Education Finance Conference, an annual event intended to allow for "collaboration among legislators, postsecondary education, school district and state agency personnel, professional organizations, and researchers concerned with the importance of equity, adequacy, and efficiency concepts that affect state, local, and federal revenue generation, distribution, and expenditures." 

I have been in contact with the organizers, who include some of the more well-recognized scholars of school finance and education funding litigation, and the conference sounds really terrific.  Best of all, the venue is beautiful Tampa, Florida (one of my former hometowns).  If you have a paper in the works on a school finance-related topic, please consider submitting a proposal to present.  The deadline is January 15th, 2011.  For more information see here. 

Courts' seeming concern with educational che guevaras in relation to teacher speech

I was reading the recent decision involving teacher speech from the Sixth Circuit, Evans-Marshall v. Bd. of Education.  Scott Bauries posted about the decision if you’re not familiar with the case.  The Evans-Marshall decision cites Mayer v. Monroe County Cmty. Sch. Corp., 474 F.3d 477 (7th Cir. 2007), and a facet of Mayer, one found in other opinions involving teacher speech and the Garcetti standards, continues to annoy me (okay, multiple things about Garcetti irk me, but I’ll just focus on one in this posting).  In a case like Mayer, the court only really conceptualized teacher speech in relation to major curricular and pedagogical issues and decisions in justifying application of the Garcetti standards.  But Mayer involved the school claiming that the First Amendment didn’t apply to a teacher’s speech in relation to responding to a student’s specific question rather than involving some big curricular choice or defiance of some official board policy.  The court didn’t focus on the type of speech at issue in the case or the context in which it actually took place.  Instead, the opinion contextualized teacher speech more in relation to “big picture” curricular and pedagogical decision-making issues. 

So, setting aside speech related to major curricular and pedagogical choice issues (and I know that Evans-Marshall dealt with just such issues), it bugs me that many courts won’t acknowledge that teachers engage in all kinds of extemporaneous speech on a daily basis.  If courts want to reinforce managerial control over teachers, then be intellectually honest in opinions--and a decision like Mayer isn’t really--that we’re also often talking about more extemporaneous-type teacher speech rather than just, say, pre-meditated plots to subvert the approved curriculum or pedagogy.  Just be honest that unsuspecting teachers acting in good faith and striving to satisfy district policies and standards are also fodder for the Garcetti standards along with those educational Che Guevaras seemingly lurking in the school halls (at least that seems to be the case based on the rhetoric found in some of these opinions).

And school districts need to be honest that in failing to adopt voluntary free speech standards for teachers, they are sending a message that they are not really seeking educators in the classroom but are really more interested in what I’ll call content technicians.   

Know your Community this time of Year

This time of year there are usually lots of news stories out there about possible Establishment Clause violations in schools. A few years ago we even turned them into a game, although I guess we learned our lesson not to repeat that. And, on schedule, the first of the new stories this year are beginning to come in. This one, from Ames, IA and Scott McLeod about a "Winter Tree" being taken down. 

We've had that debate and if you are a regular reader you know that I am fine with Christmas trees in classrooms. They have crossed some undefined boundary to me from religious symbol to secular cultural symbol.  But, not everyone agrees. Thus, the key in these instances is to know your communities. Obviously, Ames being a liberal college town is going to have less tolerance for Christian symbols during the holidays. Some rural Kentucky towns around me want those symbols, so it is all relative for you school administrator types out there. 

So, while we lawyers fight over secularity, the Lemon test, etc ... just do what you think is best by your community and most of you should have a fine (and quiet) holiday season. 

Data Security

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

Just asking. 

Another Pledge of Allegiance Case

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

Site Updates

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

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

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

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

As always, let me know your thoughts. 

CA Supreme Uphold In-State Tuition for Undocumented Students

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

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

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

Emerging Themes from the Office of Civil Rights

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

Here are a couple of hot topics:

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

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

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

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

Why I Love ELA and Why You Should Join

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

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

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

Louisiana's Constitution and Education Reform

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

State Constitutional Design and Education Reform: Process Specification in Louisiana

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

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

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

Technology's Value at ELA - A New Challenge

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

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

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

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

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

Education Technology Law Preconference - Notes

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

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

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

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

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

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

Education Law Association 2010: Vancouver

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

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

Let's have a great conference everyone! 

Private School Tax Credits in Arizona

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

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

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

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

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

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