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Author: Aaron Saiger

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Are in-person academic communities luxury goods?

Since I began posting as a guest on Concurring Opinions at the beginning of March, “MOOCs” – massively open online courses – have been repeated topic. The blog search engine reports that the term did not appear on the blog until 25 Feb 2013; in the six weeks since, MOOCs have been a topic herehereherehereherehere, and, in Deven Desai’s interesting post two days ago, here. Deven says, and I agree, that the aggregation of students together inside an immersive academic, learning community is a real good, and one that cannot be duplicated by a set of MOOCs. But the question MOOCs make pressing is how to value that good, once it can be unbundled from training in the classroom. Nannerl Keohane, in a recent review in Perspectives on Politics (11:1, March 2013, p.318), says that “online education … is the easiest and cheapest way to learn a variety of subjects, especially useful ones,” and describes it is the contemporary analogue of “mutual-aid societies and lyceums.” This seems apt.

University insiders like to say that even unbundled academic community is indispensable, and should be subsidized by both state and university. I suspect that the marketplace will put a much lower value on it. State legislators, ever strapped for cash, will likely do so as well. There will still be a market for 24/7, bricks-and-mortar academic communities; but the online availability of downmarket, imperfect, but genuine partial substitutes will mark such communities more clearly as luxury goods. Once such luxuries are no longer inexorably bundled with direct instruction, the argument that they still deserve state or even philanthropic subsidy is not, it seems to me, a slam-dunk.

Deven posted that the key question is how to “leverage MOOCs and other technology to improve the way education is delivered while not offering only the virtual world” but also social context to those not in the luxury-goods market. Another way of phrasing that question is to ask whether there is a mid-market good, somewhere between the aggregation of naked MOOCs and the bricks-and-mortar private college, that could command interest in the marketplace and justify third-party subsidies. What features of the “code” of online courses – the way that they are presented, taught, bundled together, and converted into credentials – might be adjusted to create a closer approximation of an immersive community, without sacrificing the advantages virtual teaching offers in terms of access over distance, asynchronicity, economies of scale, and cost?

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Faculty and staff

The proximate cause of Danielle’s inviting me to guest-blog at Concurring Opinions was a celebration we had at Fordham of my colleague Robert Kaczorowski‘s publication of “Fordham University School of Law: A History,” the publication of which she had blogged here. The  first half the book analyzes decanal administrations prior to those of Dean John Feerick, who remains an illustrious and beloved member of the Fordham faculty. This section of the book is remarkable for being the very opposite of “law porn“: it tells the story of several decades of a law school’s decline. This decline, Kaczorowski convincingly argues, was driven largely by the insatiable voraciousness with which the central university plundered the law school’s revenues (read student tuition) for its own, non-law purposes. Today, we call that plundering the “central services charge.” At many universities, not just my own, central charges are a major driver of law school costs.

The central services charge is related to the explosive growth of the administrative sector within universities. Read More

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The school of the future: request for input

This post is a nerd crowdsourcing request. As a guest blogger I don’t know my audience as well as I might, but I am heartened by the presence of “science fiction” among the options my hosts give me for categorizing my posts; and my teenager assures me that “nerd” is a compliment.

As several of my earlier posts suggest, I am interested in the impact of virtual technology upon K-12 schooling; and one thing I have been doing in my spare time is looking at literary accounts, highbrow and low, of what schooling in the future might look like. A colleague gave me Ernest Kline’s recent Ready Player One, which imagines school in a fully virtualized world that looks a lot like the school I went to, complete with hallways, bullies, and truant teachers – but the software allows the students to mute their fellows and censors student obscenity before it reaches the teachers’ interfaces. Another colleague reminded me of Asimov’s 1951 The Fun They Had, where the teacher is mechanical but the students still wiggly and apathetic. On the back of a public swapshelf, I found the Julian May 1987 Galactic Milieu series, which imagines brilliant children, all alone on  faraway planets, logging on with singleminded seriousness to do their schoolwork all by their lonesomes. And my daughter gave me Orson Scott Card’s famous Ender’s Game, where the bullying is more educative than the mathematics, and scripted by the adults much more carefully.

That seems like an extensive list but really it’s not, and I was never a serious sci-fi person. If anyone is willing to post in the comments any striking literary accounts of schooling in the future, I’d be grateful.

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Free speech rights and free speech pedagogy

I am working on a paper about student speech rights in public school that has me vacillating about whether the classic Supreme Court case of Tinker v. Des Moines Independent Community School District (1969) is a brilliant exercise in linedrawing or an utter failure. Many readers will remember that Tinker held that students could wear black armbands to school in silent protest of American involvement in hostilities in Vietnam; school officials may interfere with or punish speech only if  they reasonably forecast that it will “materially or substantially interfer[e] with the requirements of appropriate discipline in the operation of the school or collide with the rights of others.”  The Tinker rule has the nice feature of explaining why a student cannot answer a teacher’s question “What were the results of Irish potato famine?” with “US Out of Vietnam!” while she can say the same thing in the hallway. More broadly, Tinker establishes a certain kind of pedagogical regime for the hours that students spend in-school-but-not-in-class, one where students can learn how to exercise constitutional rights by practicing them, up to the point of disruption.

Tinker’s flaws were made vivid once again this week by yet another case, this one from the Fourth Circuit, involving students being prohibited from and punished for wearing to school clothing that bears the likeness of Confederate flags. Such behavior seems initially very similar to wearing a black armband to protest Vietnam; but the courts of appeals have fairly consistently held that such speech can be barred under Tinker because histories of racial tension make it reasonable for school authorities to expect disruption to result from such displays. The new case, Hardwick v. Heyward, is quite emphatic on this score, emphasizing that the mere fact that the shirts did not lead to disruption is immaterial, because it was reasonable for school officials to predict disruption; moreover past racial disputes in the school were material, because they made the prediction more reasonable. The Hardwick rationale pretty clearly means that, had there once been fistfights in the Des Moines schools about the Vietnam War, or perhaps even World War II, then the armbands could have been banned in the present. Thus Tinker is deployed to create a particularly strong kind of hecklers’ veto.

My gut reaction to this case is — who is fooling whom? Read More

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The child, not the school

The Indiana vouchers program I posted about earlier, significant on its own, also partakes of a trend. The New York Times gets it:

A growing number of lawmakers across the country are taking steps to redefine public education, shifting the debate from the classroom to the pocketbook. Instead of simply financing a traditional system of neighborhood schools, legislators and some governors are headed toward funneling public money directly to families, who would be free to choose the kind of schooling they believe is best for their children, be it public, charter, private, religious, online or at home.

In particular, the Times is right that what is sought here is redefinition. Once states established and supported institutions – public schools – that parents could take or leave, so long as they educated their children somehow. The new paradigm has states instead provide a quantum of funding earmarked for each child, that parents can deploy at any educational institution of their choosing. The fact that the aid attaches to the child and follows her to her family’s chosen school is much more important than the various labels ascribed to the funding and/or the institutional provider – public, private, charter, voucher.

As people learn to function within, and get used to, this new paradigm, they will stop thinking of educational politics as the way to create good public schools, and start thinking of it in terms of how big the aid pie is and how it gets divided up. Whether a school is public or private, online or bricks-and-mortar, religious or not – these stop being political questions and start being questions that markets will resolve through supply and demand. Read More

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Vouchers ascendant?

The heartening (and unanimous) decision by the Indiana Supreme Court on Tuesday to uphold that state’s school-voucher program further undermines a dominant but false narrative in the academy, to the effect that school vouchers are a distraction with little serious political support. The opinion is notable for several reasons, and I expect to post again about some of them. Here I note only two. First, the Indiana program makes enormous numbers of children voucher-eligible. Second, the Indiana court’s analysis makes some interesting and important moves with respect to both its constitution’s religion and education clauses.

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Double deference

I know that I am supposed to be caught up along with everyone else in the same-sex marriage cases, but I am still distracted by Decker v. Northwest Environmental Defense Center, decided last week at the Supreme Court. In a separate opinion designed to push the buttons of what Scotusblog’s John Elwood called Supreme Court nerderati, Justice Scalia again called for the reconsideration of the principle of Auer deference. Auer says that just as courts should defer to agencies’ reasonable interpretations of ambiguous provisions in their organic statutes, so should they defer to agencies’ reasonable interpretations of ambiguous provisions in regulations that they themselves promulgate. Chief Justice Roberts and Justice Alito suggested that they would also be open, in a different case, to reconsidering Auer.

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MOOCs in law schools

Last week both Frank and I blogged about the MOOC, the “massive open online course.” Also last week a substantial and prominent group of academics posted an open letter to the ABA that urged legal educators to consider, among other reforms, “building on the burgeoning promises of internet-distance education.” (The letter garnered positive press in diverse fora.) Might the MOOC platform be part of that “promise”?

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Nondelegation, now available in 32-ounce sizes

New York City is abuzz with the setting aside of Mayor Bloomberg’s ban on the sale of sugared drinks in containers larger than sixteen ounces. The ban applies to establishments directly under the authority of the City’s Health Department (restaurants, movie theaters) but not those that are not (retail stores, church suppers). I have been following the rule with interest because my colleague Olivier Sylvain (guest blogging at Concurring Opinions next month, so stay tuned) has placed it at the core of his 1L course on Legislation and Regulation. In my section of the same course, but with respect to a different rule, I ask my students to pretend to represent the American Beverage Association, today’s successful plaintiffs. The ABA titled its victory post this morning “Choice Lives!”:  “Individuals are the ones with the power to choose what foods and beverages are right for them.”

The decision, by New York State Supreme Court Judge Milton Tingling, makes a move one often sees in high-profile trial court cases, which is that it reaches its conclusion on as many bases as possible. In many ways, therefore, the decision is an alarming overreach. In particular, Judge Tingling says that the regulation is arbitrary and capricious because it is riddled with exceptions:  not just for the above-mentioned retail stores, but also, for example, for beverages that contain a lot of  milk or any alcohol. It cannot be right that an agency acts arbitrarily by failing to be comprehensive. The rules’ various exemptions, while fairly numerous, each bears a plausible justification. That plausibility is more than sufficient to get by the arbitrariness test.

The weakest part of the opinion is a long history of the New York City Charter, which the judge recites in support of his position that obesity is not a “health” issue within the Charter’s meaning. Not only does the opinion give a very dubious restrictive construction to the Charter language, but the Mayor’s soda rule survives that construction. Judge Tingling says that the Executive’s authority to “limit or ban” legal food items applies only when the city is in “eminent [sic] danger due to disease” [29] – but that is precisely the Health Department’s claim, and it is a reasonable one. And, as the City has emphasized, there is no ban here on soda in any quantity; all that is restricted is delivery systems, for which alternatives are available. You can buy 64 ounces of Coke if you want, as long as you are willing to carry four cups.

Nevertheless, Judge Tingling is right that New York State’s nondelegation doctrine – the doctrine that administrative law professors who teach only federal cases tell their students is a dead letter – prohibits the rule. The foundational case, Boreali v Axelrod, is nearly on all fours with this case. Health departments, pursuant only to sweeping language giving them authority over public health, cannot in New York State limit trade in legal markets over which the legislature has given them no explicit authority. If the City is to win its promised appeal, it is going to need to argue that Boreali should be overruled or limited.

The problem with that is that Boreali is right. Nondelegation is an important constitutional principle and should not be sidelined out of existence. I don’t disagree with the Mayor that obesity is a big problem, and am not per se opposed to the kind of state paternalism that shoves people in the direction of healthy behaviors; but I think it’s not just reasonable, but better politics, better civics, and better constitutional law to require those shoves to come from a legislative, rather than an executive and bureaucratic, process.

See also Rick Hills’ interesting comments here.