Concurring Opinions » Education

Higher Education Costs: What Could The Federal Government Do?

Dave Hoffman — Wed, 25 Jan 2012 19:01:02 +0000

President Obama’s State of the Union glossed on a topic that’s quite relevant to the recent debates about legal education:

“Of course, it’s not enough for us to increase student aid. We can’t just keep subsidizing skyrocketing tuition; we’ll run out of money. States also need to do their part, by making higher education a higher priority in their budgets. And colleges and universities have to do their part by working to keep costs down. Recently, I spoke with a group of college presidents who’ve done just that. Some schools re-design courses to help students finish more quickly. Some use better technology. The point is, it’s possible. So let me put colleges and universities on notice: If you can’t stop tuition from going up, the funding you get from taxpayers will go down. Higher education can’t be a luxury— it’s an economic imperative that every family in America should be able to afford.”

As political pap goes, this is as good as any. But I’d go a step further to ask how the government could help keep down costs, apart from threatening to take away subsidies. Costs have many drivers, including rising student demand for particular kinds of campus amenities, legacy benefit costs that plague all large-scale employers, and rising health costs. But the biggest factor is faculty salaries. Given tenure (which affects law schools disproportionately because of our accreditor’s monopoly) it might seem like this is a wicked problem. Maybe it is, but the President could have called for the Congress to make a small change in law that might make a real difference: repeal that portion of the ADEA which prohibits mandatory retirement ages for university professors.

As is well-known, the federal government prohibits mandatory retirement policies except when age is a bona fide occapational requirement or when the person is a qualifying executive. 29 U.S.C. §§623(f), 631(c). An exception for tenured employees, including professors, was phased out in 1993. (The law phasing out the exception passed in 1986). As this study predicted, the impact on research universities in particular is severe, as an increasingly high percentage of workers stay on the job after age 70. Why does this matter? If teaching and/or scholarship decreases after many years on the job – and there is some evidence that they do – universities have few remedies given tenurial job protections for under performing employees. In today’s economy, with an increasingly volatile stock market, and unpalatable health insurance choices, we’d probably also expect that fewer faculty will retire voluntarily in the future than they used to. Thus, many institutions will find it hard to reduce costs by reducing faculty sizes (or paying less per person by replacing older, more expensive, employees with younger, cheaper, ones.) We will deliver fewer educational goods, at higher costs.

Now there are good reasons for prohibiting mandatory retirement in general. But I’ve never understood why those reasons translate when you’ve got a tenured faculty who often exercise more self-government than law firm partners. In any event, given the economic realities of the moment, lumping faculty in with other workers feels like a luxury students can no longer afford.

More on the Student Data Grab

Daniel Solove — Sat, 31 Dec 2011 02:19:42 +0000

Here’s another piece critiquing the Education Department’s student data grab. I am a bit dismayed that this story has barely received coverage from the mainstream media or much general concern by the public. Many privacy advocacy organizations have been very quiet about it. I think that these developments are quite troublesome — they are a George W. Bush-esque endeavor, but this time, the reaction is largely ho-hum. It shouldn’t be.

The Student Data Grab

Daniel Solove — Fri, 30 Dec 2011 02:26:38 +0000

There’s a good editorial in the NY Post today about the big data grab the Education Department is facilitating with student data. I blogged about this issue a short while ago at the Huffington Post.

According to the op-ed:

Would it bother you to know that the federal Centers for Disease Control had been shown your daughter’s health records to see how she responded to an STD/teen-pregnancy-prevention program? How about if the federal Department of Education and Department of Labor scrutinized your son’s academic performance to see if he should be “encouraged” to leave high school early to learn a trade? Would you think the government was intruding on your territory as a parent?

Under regulations the Obama Department of Education released this month, these scenarios could become reality. The department has taken a giant step toward creating a de facto national student database that will track students by their personal information from preschool through career. Although current federal law prohibits this, the department decided to ignore Congress and, in effect, rewrite the law. Student privacy and parental authority will suffer.

How did it happen? Buried within the enormous 2009 stimulus bill were provisions encouraging states to develop data systems for collecting copious information on public-school kids. To qualify for stimulus money, states had to agree to build such systems according to federally dictated standards. So all 50 states either now maintain or are capable of maintaining extensive databases on public-school students.

The administration wants this data to include much more than name, address and test scores. According to the National Data Collection Model, the government should collect information on health-care history, family income and family voting status. In its view, public schools offer a golden opportunity to mine reams of data from a captive audience.

Student Privacy in Peril

Daniel Solove — Mon, 19 Dec 2011 20:38:30 +0000

Over at the Huffington Post, I have a short piece about the growing problems with student data. Here’s the opening:

In October, personal financial data — including social security numbers, loan repayment histories and bank-routing numbers – of thousands of college students was exposed on the Department of Education’s (ED) direct loan website. For seven minutes, anyone surfing the direct loan website could find personal information about students who had borrowed from the Department of Education.

In and of itself, this data security breach is quite alarming, but it is even more so considering the aggressive data gathering efforts ED is spearheading. For example, the ED’s changes to the Family Educational Rights and Privacy Act (FERPA) regulations will provide the government with greater powers to gather and use longitudinal data about students to track their performance over time.

A Guide to the Eight Most Suspect Types of Law Review Articles

Kyle Graham — Sat, 03 Dec 2011 18:34:39 +0000

This is simply my list of the eight most suspect types of articles; I appreciate that others may suggest different, or additional, entries.

1. The Repository of Hope

“As the single-word title connotes, I am very disappointed that this article did not place in a T14 journal.”

2. The Strained Debunker

“In Part I, I will characterize a 1974 Pace Law Review note and a 2007 MySpace entry as embodying ‘conventional wisdom.’ ”

3. The Old-Wine-In-New-Bottles

“No one has evaluated the rule against perpetuities from an animal-rights perspective before, so, you know, what the hell.”

4. The One-Off

“In my previous article, I made a significant contribution to the literature. In this piece, I will coast on the vapors of that article.”

5. The Something Is Unconstitutional

“This article would make a fairly solid student note. It is my tenure piece.”

6. The Turf Staker

“My pre-emption check discovered no articles that cover this territory. I pretty much worked backward from there.”

7. The Half-Hearted Symposium Submission

“We would have tried harder, but hey, we’re talking about a symposium here.”

8. The Torn from the Headlines

“Few would recognize that the United States Supreme Court’s recent decision in ___ vs. ___ would fundamentally alter ___ law. Yet it did, or at least, you won’t be able to prove that it didn’t until this article is already well on its way to publication.”

“The first thing we do, let’s [train] all the lawyers.”

Jeffrey Kahn — Mon, 21 Nov 2011 01:55:32 +0000

David Segal has a front-page, above-the-fold article in today’s New York Times, What They Don’t Teach Law Students: Lawyering. Segal blasts legal education for failing to produce prêt-à-porter lawyers sized to fit the needs of everyone from Skadden Arps to solo practitioners. Segal also denies the value of “pure” research — law review articles and other scholarly output that do not satisfy his requirements for immediate application to daily practice. Gerard Magliocca and Alex Guerrero already commented on one of his examples. As with Dick the Butcher’s suggestion in Shakespeare’s Henry VI, Part 2, Segal’s article is wrong on both teaching and research.

First, teaching. I think that when law schools succeed at their mission they do produce graduates with skills ready for use in any legal environment. It’s just that developing the skill set that Segal prioritizes (such as his opening example: filing a certificate of merger with a secretary of state) is not the sole, let alone primary, goal of legal education. Those form-filling and filing skills are important, but best honed by firms that daily engage in those specialized, localized, and technical operations. Law schools, in contrast, have the advantage in teaching the general skills and knowledge that firms of all sizes (as well as government agencies and corporations) have neither the time, inclination, nor resources to perfect. But these organizations desperately need these things in the lawyers they hire: critical thinking, professional standards, ethical judgment, and historical perspective (to name a few).

Unlike medical schools and engineering programs, law schools do not set out to create technicians. (I suspect that the best medical and engineering institutions don’t have this goal either, but this is the common comparison.) Law schools, especially, should produce graduates comfortably inclined to question the status quo, challenge assumed truths, and think about the long-term implications of their actions as members of a learned profession. Over time, one hopes that their training will combine with experience to produce in them judgment about when each skill should take a leading role. Lawyers with these skills are needed in any age, but especially one that produced such colossal fails ranging from Enron to government-sanctioned torture.

Second, research. I also reject Segal’s essentially anti-intellectual critique of research. Last spring, I was asked by a high-level Russian official to write a report on a verdict in a criminal case. That report explored the many departures from Russia’s obligations under the European Convention on Human Rights to be found in that verdict, but it also raised serious questions about fundamental aspects of Russian law. The report could hardly qualify as research readily useful to the day-to-day activities of a practitioner at the bar of any American state or the present Russian one. Nevertheless, I found that the research that I conducted, the exercise of drafting my report, and the report itself generated useful starting points for several discussions in classes that I teach on American law. Those conversations ranged from an aspect of the famous Chenery case in my Administrative Law class to an editing exercise in a seminar on counterterrorism. Needless to say, I hope it also makes a positive impact in Russia when it is released next month.

Those teaching moments were hard to foresee at the outset of my research. But anyone who values knowledge for its own sake would not be surprised by the serendipity my Russian law work produced in my American law classrooms. That the report led to invitations to speak to groups at universities and thinktanks in the U.S., U.K., Sweden, Norway, Finland, and Belgium also suggests that what counts as valuable research might benefit from a less cramped definition than Segal and company provide.

Science and Employment: You Must Remember This, The Fundamental Things Apply As Time Goes By

Deven Desai — Fri, 04 Nov 2011 00:06:00 +0000

Here are some pointed questions about science, innovation, and technological progress:

First: What can be done, consistent with military security, and with the prior approval of the military authorities, to make known to the world as soon as possible the contributions which have been made during our war effort to scientific knowledge?

The diffusion of such knowledge should help us stimulate new enterprises, provide jobs for our returning servicemen and other workers, and make possible great strides for the improvement of the national well-being.

Second: With particular reference to the war of science against disease, what can be done now to organize a program for continuing in the future the work which has been done in medicine and related sciences?

The fact that the annual deaths in this country from one or two diseases alone are far in excess of the total number of lives lost by us in battle during this war should make us conscious of the duty we owe future generations.

Third: What can the Government do now and in the future to aid research activities by public and private organizations?

The proper roles of public and of private research, and their interrelation, should be carefully considered.

Fourth: Can an effective program be proposed for discovering and developing scientific talent in American youth so that the continuing future of scientific research in this country may be assured on a level comparable to what has been done during the war?

New frontiers of the mind are before us, and if they are pioneered with the same vision, boldness, and drive with which we have waged this war we can create a fuller and more fruitful employment and a fuller and more fruitful life.

War should be understood as the military actions in Asia and the war on terror.

By now you all may have wondered, “What the heck is Deven doing talking about war (good God, y’all, what is it good for)?” Or something like that. And some of you may have figured out that all of the above except “War should be understood as the military actions in Asia and the war on terror”, which I threw in to try and seem like the ideas are from today, is from President Roosevelt’s letter to Vannevar Bush.

Funny how little changes overtime. Jobs, medical progress, public/private collaboration, the future of science education are all on our minds today. They have been a core issue since at least 1944. The full history of Science the Endless Frontier is hosted by the NSF. It is a fun read. Well, if you are absurdly nerdy, it is a fun read.

There are many things to enjoy in the report. One part that jumped out at me is his idea about employment and science. I may write more as I digest the report in general. For now take a read:

Scientific Progress is Essential … For the Public Welfare: (closest link to the passage)

One of our hopes is that after the war there will be full employment. To reach that goal the full creative and productive energies of the American people must be released. To create more jobs we must make new and better and cheaper products. We want plenty of new, vigorous enterprises. But new products and processes are not born full-grown. They are founded on new principles and new conceptions which in turn result from basic scientific research. Basic scientific research is scientific capital. Moreover, we cannot any longer depend upon Europe as a major source of this scientific capital. Clearly, more and better scientific research is one essential to the achievement of our goal of full employment.

How do we increase this scientific capital? First, we must have plenty of men and women trained in science, for upon them depends both the creation of new knowledge and its application to practical purposes. Second, we must strengthen the centers of basic research which are principally the colleges, universities, and research institutes. These institutions provide the environment which is most conducive to the creation of new scientific knowledge and least under pressure for immediate, tangible results. With some notable exceptions, most research in industry and Government involves application of existing scientific knowledge to practical problems. It is only the colleges, universities, and a few research institutes that devote most of their research efforts to expanding the frontiers of knowledge.

Today we may swap the rest of the world for Europe, but otherwise I think the point holds up rather well.

Thank you and Goodnight (and Some Thoughts on Anti-Gay Discrimination in Schools)

Ari Waldman — Mon, 01 Aug 2011 01:25:51 +0000

It has been an honor and a pleasure to be a small part of the Co-Op community these past two months. I learned a lot and had fun doing it! I’d like to thank everyone for their indulgence and comments, with special thanks to Danielle for inviting me in the first place.

For my final post, I would like to follow up on what is going on the Anoka-Hennepin School District in Minnesota.

In the mid-1990s, the District adopted a health curriculum policy prohibiting teachers from teaching that homosexuality is “normal” or a “valid lifestyle.” According to the anti-gay organization that lobbied the District to adopt that rule, “[t]he homosexual lifestyle does not reflect the community standards of District #11, nor is it regarded as a norm in society.” That policy was extended beyond the health curriculum in 2009, when the District adopted a so-called “no promo homo” rule and a neutrality policy that stated that “[t]eaching about sexual orientation is not a part of the District adopted curriculum; rather, such matters are best addressed within individual family homes, churches, or community organizations. Anoka-Hennepin staff, in the course of their professional duties, shall remain neutral on matters regarding sexual orientation including but not limited to student led discussions.”

In a Complaint from the Southern Poverty Law Center (SPLC) representing several students, the SPLC notes that the policies act “as a gag policy that prevents school officials from complying with their legal obligations to keep safe students like Plaintiffs who are perceived as LGBT or gender non-conforming. This gag policy requires District officials to enforce anti-harassment policies in the case of anti-LGBT bullying differently from other types of bullying. Teachers have understood the [policy] as inhibiting them from aggressively responding to anti-gay harassment, inside or outside the classroom. The gag policy also prohibits school staff from countering anti-gay stereotypes or presenting basic factual information about LGBT people, even when necessary to address anti-gay hostility within the student body. For example, pursuant to District guidance, the [policy] prohibits staff from even mentioning the fact that it is the position of the American Psychological Association that being gay is not a choice— a position that is the consensus of all major accredited and professional mental health organizations. The [policy] severely limits or outright bars any discussion by school officials of issues related to LGBT people in or out of the classroom, a limitation
that is not placed on any other category of persons.”

The SPLC raises Equal Protection, Title IX and Minnesota Human Rights Act arguments. The full Complaint is available here.

There are also free speech arguments. Do you think SPLC should have emphasized the ways in which Anoka-Hennepin’s policies infringe on the free speech rights of teachers?

There are roughly three kinds of policies schools can adopt regarding the teaching of homosexuality. Schools can write gay-tolerant or pro-gay curricula, where students are taught about all views on homosexuality but are affirmatively encouraged to tolerate and accept their gay and lesbian peers. On the opposite side of the spectrum are explicit “no promo homo” policies that include anti-gay instruction. This is like a failed 1992 Oregon ballot measure that would have required public schools to “recognize[] homosexuality, pedophilia, sadism and masochism as abnormal, wrong, unnatural and perverse and … to be discouraged and avoided.” These rules can also be less egregious, like Arizona’s 1995 AIDS instruction rule, which permitted instruction on HIV/AIDS, but prohibited any school from including “instruction which: Promotes a homosexual lifestyle. Portrays homosexuality as a positive alternate lifestyle. Suggests that some methods of sex are safe methods of homosexual sex.” And, then there are supposedly neutral policies of the don’t-ask-don’t-tell variety, where a state mandates that “any reference to … homosexuality … be eliminated from the curriculum,” or where a state bans teachers from mentioning the word gay in lessons, student interaction or in informal instruction. The Anoka-Hennepin school district in Minnesota has this kind of policy.

There is reason to believe that these policies are unconstitutional under current First Amendment law even though we do not have a definitive ruling on the subject. Recently, a federal district judge in Alabama struck down a state law which forbade any college or university from using public money to “promote[] a lifestyle or actions prohibited by the sodomy or sexual misconduct laws” as a First Amendment violation. Federal courts have also struck down state laws that would have allowed schools to fire teachers for advocating pro-gay policies in public (National Gay Task Force v. Board of Education of Oklahoma City). Also, in a plurality opinion in Board of Education v. Pico, Justice Brennan argued that students have a constitutional “right to know” accurate information about sexuality. That interpretation is unsettled, but Justice Burger’s dissent in Pico suggests that if schools undertake sex education in the first place, they have to present it accurately. But, what is “accurate”? A number of state courts have found that it is entirely appropriate to advocate, say, abstinence as something teenagers should adopt in their daily lives, while not including any reference to homosexuality. But, still, free speech rights of teachers and students are implicated.

In any event, while the issue is unsettled, we can make a clear and persuasive case that even supposedly neutral “no promo homo” policies are unconstitutional content-based restrictions on speech. The First Amendment does not allow states to ban certain types of picketing but not others (Police Department of Chicago v. Mosley) or certain types of hate speech but not others (R.A.V. v. St. Paul). Policies that ban an entire topic of discussion are similar — they single out one type of content for censorship. Anoka-Hennepin’s policies ban teachers from talking about an entire topic in and out of the classroom. Even if we set aside curricular neutrality for the moment, Anoka-Hennepin’s policies prevent teachers from mentioning the word “gay” anytime students could hear or discussing anti-gay bias as an illegitimate reason for abuse, harassment and bullying. Therefore, the District is not only setting out curricular requirements — which may not raise free speech concerns — but is also telling teachers what they can and cannot say outside the classroom.

Off-Campus Cyberbullying and the First Amendment

Daniel Solove — Thu, 28 Jul 2011 05:03:36 +0000

The U.S. Court of Appeals for the Fourth Circuit recently upheld a school’s discipline of a student for engaging in off-campus cyberbullying of another student. In Kowalski v. Berkeley County Schools, — F.3d — (4th Cir. July 27, 2011), a student (Kara Kowalski) created a MySpace profile called “S.A.S.H.,” which she said was short for “Students Against Sluts Herpes.” Another student, however, claimed it really stood for “Students Against Shay’s Herpes,” referring to a student named Shay N. Kowalski invited about 100 people to join the page, and about 24 people joined. Students posted comments and images making fun of Shay N. One student posted a picture of Shay N. and put “red red dots on Shay N.’s face to simulate herpes and added a sign near her pelvic region, that read, ‘Warning: Enter at your own risk.’ In the second photograph, he captioned Shay N.’s face with a sign that read, ‘portrait of a whore.’”

After a complaint by Shay N. and an investigation, school officials determined that Kowalski created a “hate website” that violated school policy. Kowalski was suspended for 5 days and received a “socail suspension” for 90 days, unable to participate in various social events at the school.

Kowalski sued, claiming that the discipline violated her free speech rights under the First Amendment to the U.S. Constitution.

Under the “substantial disruption” test, as defined by the U.S. Supreme Court in Tinker v. Des Moines School District, 393 U.S. 503 (1969), the school must demonstrate “facts which might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities.”

The court concluded that the school was justified in imposing discipline under the substantial disruption test. A lengthy quote from the court’s opinion is quite instructive (citations omitted):

According to a federal government initiative, student-on-student bullying is a “major concern” in schools across the country and can cause victims to become depressed and anxious, to be afraid to go to school, and to have thoughts of suicide. Just as schools have a responsibility to provide a safe environment for students free from messages advocating illegal drug use, schools have a duty to protect their students from harassment and bullying in the school environment. Far from being a situation where school authorities “suppress speech on political and social issues based on disagreement with the viewpoint expressed,” school administrators must be able to prevent and punish harassment and bullying in order to provide a safe school environment conducive to learning.

We are confident that Kowalski’s speech caused the interference and disruption described in Tinker as being immune from First Amendment protection. The “S.A.S.H.” webpage functioned as a platform for Kowalski and her friends to direct verbal attacks towards classmate Shay N. The webpage contained comments accusing Shay N. of having herpes and being a “slut,” as well as photographs reinforcing those defamatory accusations by depicting a sign across her pelvic area, which stated, “Warning: Enter at your own risk” and labeling her portrait as that of a “whore.” One student’s posting dismissed any concern for Shay N.’s reaction with a comment that said, “screw her.” This is not the conduct and speech that our educational system is required to tolerate, as schools attempt to educate students about “habits and manners of civility” or the “fundamental values necessary to the maintenance of a democratic political system.”

Kowalski argued that the speech took place at her home and should be outside the school’s power to regulate, but the court concluded:

Kowalski indeed pushed her computer’s keys in her home, but she knew that the electronic response would be, as it in fact was, published beyond her home and could reasonably be expected to reach the school or impact the school environment. She also knew that the dialogue would and did take place among Musselman High School students whom she invited to join the “S.A.S.H.” group and that the fallout from her conduct and the speech within the group would be felt in the school itself. Indeed, the group’s name was “Students Against Sluts Herpes” and a vast majority of its members were Musselman students. As one commentator on the webpage observed, “wait til [Shay N.] sees the page lol.” Moreover, as Kowalski could anticipate, Shay N. and her parents took the attack as having been made in the school context, as they went to the high school to lodge their complaint.

There is surely a limit to the scope of a high school’s interest in the order, safety, and well-being of its students when the speech at issue originates outside the schoolhouse gate. But we need not fully define that limit here, as we are satisfied that the nexus of Kowalski’s speech to Musselman High School’s pedagogical interests was sufficiently strong to justify the action taken by school officials in carrying out their role as the trustees of the student body’s well-being. . . .

Given the targeted, defamatory nature of Kowalski’s speech, aimed at a fellow classmate, it created “actual or nascent” substantial disorder and disruption in the school. See Tinker, 393 U.S. at 508, 513; Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 257 (3d Cir. 2002) (indicating that administrators may regulate student speech any time they have a “particular and concrete basis” for forecasting future substantial disruption). First, the creation of the “S.A.S.H.” group forced Shay N. to miss school in order to avoid further abuse. Moreover, had the school not intervened, the potential for continuing and more serious harassment of Shay N. as well as other students was real. Experience suggests that unpunished misbehavior can have a snowballing effect, in some cases resulting in “copycat” efforts by other students or in retaliation for the initial harassment.

Other courts have similarly concluded that school administrators’ authority to regulate student speech extends, in the appropriate circumstances, to speech that does not originate at the school itself, so long as the speech eventually makes its way to the school in a meaningful way. . . .

Thus, even though Kowalski was not physically at the school when she operated her computer to create the webpage and form the “S.A.S.H.” MySpace group and to post comments there, other circuits have applied Tinker to such circumstances. To be sure, it was foreseeable in this case that Kowalski’s conduct would reach the school via computers, smartphones, and other electronic devices, given that most of the “S.A.S.H.” group’s members and the target of the group’s harassment were Musselman High School students. Indeed, the “S.A.S.H.” webpage did make its way into the school and was accessed first by Musselman student Ray Parsons at 3:40 p.m., from a school computer during an after hours class. Furthermore, as we have noted, it created a reasonably foreseeable substantial disruption there.

Note the contrast between this case and the recent cases decided by the Third Circuit — Layshock v. Hermitage School District and J.S. v. Blue Mountain School District — where students made fake MySpace profiles to ridicule school officials. Why did the school win here while the schools failed in the Third Circuit cases?

One reason is that here in Kowalski, the speech involved another student and not a school official. Schools have a special obligation to help protect students from cyberbullying. Although anti-discrimination and anti-harassment law also protects school employees, courts seem to afford less protection to school employees than to students.

The primary reason is that in Kowalski, the school documented the nexus between the speech and the school and how it created a disruption. In Layshock and J.S., the schools conceded that there was no actual disruption at the school. The stronger argument, made in J.S., was that the speech undermined the authority of school officials, but this argument was too abstract and generic for the court to accept. In contrast, the court in Kowalski is moved by the evidence about how the victim was affected.

Cross-posted at TeachPrivacy.

Some Thoughts on The FAIR Education Act

Ari Waldman — Wed, 13 Jul 2011 16:40:21 +0000

My apologies to the Co-Op community for being incognito the previous week. There’s the wonderful medicine called Augmenten that is finally getting me well!

The quaint Sacramento Bee published an Op-Ed of mine today. It urges California Governor Jerry Brown to sign SB 48: The FAIR Education Act, that asks California school districts to find a way to include references to the contributions of gay Americans in their history or social studies curricula. I see this as an essential tool in combating anti-gay hate and bullying in schools.

Maybe it was a mistake to include my email address at the bottom of the Op-Ed (though that is the Bee’s, and most paper’s, custom) because I’ve already gotten quite a few emails using the word “Satan,” “destroying America,” “sodomy,” “rectum,” “bending over backward” and even a few veiled threats from one person who insisted on reminding me that he is a “real Christian.”

Any time someone mentions the word “gay,” there always seems to be a small, vocal and virulent segment of the population that cannot help but think of sodomy and how “gross and unnatural” they think it is. Historically, it is common for hateful societies to identify and exaggerate physical or personal features of those groups they wish to keep down. In Germany, Hitler published photographs of Jews that over-emphasized hooked noses; in the Jim Crow South, it was terribly and disturbingly common to equate African Americans with monkeys.

But that obvious and outward hate only worked because it tapped into long held, deeply rooted beliefs about Jews and African Americans. Hooked noses symbolized the Jews-as-sinister stereotype for Germans; monkeys reminded Southern whites that African Americans were less than human. Images conjured up by words like “rectum” and “bending over backward” comport with homophobic stereotypes of gay men as sex-crazed, obsessed with pleasure and incapable of love, only lust.

The only way to fight against these stereotypes is to teach reality: that gay people can love each other, that gay lives are no different than straight lives and that gay people have been positive forces in American history. So-called “real Christians” (methinks he doth protest too much!) may be unreachable, but that is because their religious leaders feed into the stereotypes and teach them. To suggest that forces of tolerance and acceptance are not allowed to teach the truth to combat these devastating stereotypes is to accept the legitimacy of hate, homophobia and discrimination.

Universities and the So-Called Customer

Thomas Crocker — Sat, 21 May 2011 13:11:30 +0000

After a longer than expected hiatus while I transitioned to new institutional setting in Germany, I have some thoughts to share about the plight of higher education, which has been much under discussion lately (see this overview of a number of recent books on the topic). I have this creeping sense, as I do about a number of other things such as politics or income inequality, that things are changing around me in significant ways, but I lack the perspective to see enough of them or sufficient insight to understand what they mean or how to affect their direction. Recently, the authors of a study—which has generated its own discussion about the failures of education—wrote an Op-Ed that both cites to the statistics demonstrating that “a large number [36 percent after four years] of the students showed no significant progress on tests of critical thinking, complex reasoning and writing,” and attributes a cause to this failing. In “Your So-Called Education,” they cite as a significant cause the turn away from educational spending by colleges and universities to expenditures on counselors, administrators, recreation centers, and the like. In the process, a particular view of education has taken hold:

“The situation reflects a larger cultural change in the relationship between students and colleges. The authority of educators has diminished, and students are increasingly thought of, by themselves and their colleges, as “clients” or “consumers.” When 18-year-olds are emboldened to see themselves in this manner, many look for ways to attain an educational credential effortlessly and comfortably. And they are catered to accordingly. The customer is always right.”

Yet, as the Chronicle reports, there are political forces agitating to entrench this losing practice further, seeking to empower the student, not the professor, in order to “make students the actual customers for higher education.” They propose seven solutions without identifying a real problem in need of solution. Texas looks to be the next battleground to test this issue, but less ideologically driven voices have also called for changes in line with the so-called “customer’s” wishes. More focus on teaching, less emphasis on research, and superficial calls for reducing costs by ending tenure (as if tenured professors were the source of ballooning higher education costs rather than the recreation centers, the administrators, the counselors, etc.) are components of a new view of higher education—one that is deeply problematic. And, one that is at odds with giving serious consideration of the future of the social sciences and humanities.

Not only is the customer always right, under the changing context of higher education, but perhaps also the investor. Private foundations and public bodies are the usual sources of investment in institutions of higher education. Their goals in investing in such institutions are varied, but generally seek to educate students for civic, social, and economic participation, to advance human knowledge and understanding, and to further economic development through the production of knowledge. Such goals are usually stated at higher levels of abstraction, leaving to the institutions and their faculties to sort out the details. As the Saint Petersburg Times reported, the Charles G. Koch Charitable Foundation has become involved not simply with financing research or teaching, but with choosing faculty members at Florida State University.

First, regarding consumerism, I have always been puzzled at the use of this concept in higher education, even as I have been much aware of its growing use. A consumer consumes to fulfill some desire (whether arising “autonomously” or through marketing manipulation), produces waste product, and returns again to the market to sate the next need. The consumer economy requires repeated repetition of this behavioral pattern. But what is it that the university student “consumes”? Knowledge is a potentially obvious answer. But knowledge does not produce any clear waste, nor does it require repetition. A student who has mastered Organic Chemistry need not repeat the course over and over again, unlike the consumer in search of another Big Mac or a new pair of Nikes. Consumption has the quality of disposability and the life of contingent attachment. We need not be attached to our choices for we can always return to the market for more or for something different. But education is not quite like this. We are not contingently attached to the knowledge, understanding, insights, capacities for judgment, and skills we attain through education. They become part of who we are; they are not items to be discarded when we receive marketing for the next new, new thing. To be sure, education can fill a lifetime, and is the sort of thing to which we can return again and again, but the aim is accretive to what has come before. A liberal arts education prepares us for citizenship, makes us ready to think about the world in which we live and to make critically informed choices about the shape of our lives in that shared world. Higher education requires scholars and experts to whom we defer even as we engage in the cooperative enterprise of research. Knowledge that something is the case is stagnant without the interaction that leads to knowing how to place facts and beliefs into analytic relations with other facts and beliefs. In higher education, we are participants, not passive recipients. I am not surprised that the features of consumption as passive economic practice would serve students poorly as educational practice.

But the customer is right model has taken hold and seems not at all separate from a world in which the private investor begins to dictate more aspects of higher education. Why would the Koch foundation wish to be involved with the process of faculty hiring? Presumably, the foundation wishes to exercise some power over the decision and its consequences. Not content to contribute to the autonomous growth of an economics education at FSU, they wish to direct the character and content of that education. When wealthy and powerful donors get this kind of say in the hiring of faculty, they are able to manipulate who gets to participate in the marketplace of ideas. This is market manipulation of the top-down heavy-handed kind—the kind that if a government agency were the principal would lead to cries of anti-market behavior. Oh the irony. But it is also inconsistent with a free-market view that truth will emerge from the clash of ideas through scholarly exchange. As constitutional law students know well, this idea is also embedded in our First Amendment jurisprudence by way of Justice Holmes’ memorable dissent. Of course, in science research, money influences outcomes—the choice of research agendas, topics, etc. There is nothing pure about science research. But, this new development does more than influence selection of research programs, it comes closer to buying a research program, personnel, and presumably scholarly product—the kind of thing you might get from privately funded “think tanks,” but not what is expected of universities devoted to academic freedom in the pursuit of knowledge and understanding. The autonomy of academic pursuits is threatened even more by the combined demands of the “customer” and the private “investor” who must expect measurable returns on the investment (particular viewpoints and specific teaching outputs).

Between the customer and the investor, the intrinsic values fostered by institutions of higher education—both research and teaching—seem increasingly underserved by concepts that function as more than mere metaphors of market economy. One way of stating the problem is to modify slightly a warning then-Judge Cardozo offered: “Metaphors in [education] are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.”

Law Schools and the Curve

Solangel Maldonado — Thu, 05 May 2011 01:59:12 +0000

The New York Times has published yet another article accusing law schools of misleading students, this time of failing to inform admitted students with merit scholarships contingent on maintaining a certain grade point average of the possibility of losing their scholarships. I agree with many of the article’s points and the comments in response. For example, I completely agree that law schools should inform admitted students of the curve (it varies from a 2.67 at some schools to a 3.4 at others) and provide them with their grading guidelines. I found the following information on the websites of four law schools:

Law School 1

A+ 1%

A 8%

A- 15%

B+ 25%

B 20%

B- 12%

C+ 7%

C 4%

C- 4%

F 4%

Law School 2

A or higher No more than 10 percent

A- or higher No more than 25 percent

C+ or lower At least 15 percent

C- or lower At least 6 percent

Law School 3

A+ 0-2%

A 7-13%

A- 16-24%

B+ 22-30%

B Remainder

B- 4-11%

C 2-5%

D/F 0-5%

Law School 4

At least 20% of grades are A- or above and at least 20% of grades are C+ or below.

***

Given that grading guidelines vary from school to school, knowledge of a law school’s grading system may help merit scholarship recipients assess their likelihood of retaining their scholarships. However, I disagree with the article’s suggestion that the curve is the main reason why many students lose their scholarships. The curve is generally not the reason why a student who never had a grade lower than a B+ in college may earn a B- or C in law school. In my experience, the curve does not lower a student’s grade but instead bumps the grade up or has no effect at all. In other words, in the absence of a curve, many more law students would earn B minuses and Cs in their first semester (or first year). The reason is that few first semester law students write good exams. This is understandable. Law school exams are generally very different from the exams students took in college or other graduate programs, and it takes a while to figure out how to take a law school exam. A student may have memorized the “black letter” law, but lack the skills to apply it to a complex fact pattern with numerous legal issues. As the article acknowledges, law students, especially those with merit scholarships, assume that because they performed well as undergraduates, they will automatically perform well in law school—even in their first semester. However, this is not the case. Many students do not learn how to apply the law to a new fact pattern or how to advise a client of “all the potential claims and defenses” (a common law school exam question) until after their first round of exams when they meet with their professors individually to review the exam. Maybe law schools need to do a better job of providing students with feedback before they take exams and with formative assessments, as the Carnegie Report on Legal Education recommends, that focus “on supporting students in learning rather than ranking, sorting and filtering them.”

“Low-Cost” Baccalaureate Degrees: Will You Soon Pay for What You Get, at Least in Texas?

Taunya Banks — Thu, 28 Apr 2011 00:14:45 +0000

Colleges and universities across the country are trying to find ways to curb, or off-set, increasingly prohibitive tuition costs. But Texas Governor Rick Perry has thrown down the gauntlet by challenging that state’s public universities (and the nation) to come up with a baccalaureate degree that cost students only $10,000. The current yearly in-state tuition at Texas universities ranges from $15, 348 to $25,477. These figures include tuition, fees, book, board and transportation.

This week Texas Commission of Higher Education, Raymund A. Paredes, declared that Perry’s proposal is “highly feasible.” He argues that the goal is “about making sure we have a range of options for young people so they can select a path to a baccalaureate that makes the most sense to them.” According to the Texas Higher Education Coordinating Board, this clearly and consciously “stripped-down degree” would account for ten percent of the total baccalaureate degrees from Texas schools. The more pressing question, however, is which students are most likely to “opt” for the “low-cost” degree. The obvious answer is low income students who also just happen to be disproportionately non-white.

What is not addressed by either the Coordinating Board or Commissioner Paredes is the long-term consequence of opting fora low-cost degree. What happens when students with low-cost degrees apply to graduate and professional schools? Will their degrees be considered competitive or will these graduates be consigned to jobs that nominally require a college degree? Will they become second-class college graduates – educated cashiers at fast food restaurants?

Most of us in higher education readily admit that tuition costs are too high and that we need to think about cost-cutting measures. But hopefully few of us want any variation of the Texas two-tier model, for if Texas has its way “low-cost” JD and MD degrees may not be far behind. I doubt that anyone wants to be treated by a physician with a low-cost medical degree, and I certainly would not want to be represented by a lawyer with a low-cost law degree. In the meantime in an attempt to off-set costs we set universities where increasing few teachers are tenured and language or classic departments and/or programs are gutted with little thought about their educational value.

It is time we ask ourselves a hard question the answer to which we might not want to know: whether the popular American notion that college should be available for anyone who has the money (or can borrow the cost of tuition) contributes to the high cost of a college education. In many countries with quality higher education systems, only the most talented need apply, and the costs are low. But before we can even think about limiting access to higher education we need to (re)commit to providing better primary and secondary education for everyone in this country. Only then can we focus on how to ensure that truly talented individuals obtain a college degree without being burdened with a life-time of debt. In the meantime, folks in Texas may have to “settle” for second-class degrees.

This is my final post on Concurring Opinions. Sorry I did not have time to post and provoke more. I’ve really enjoyed my month’s stint.

Digital Law Books: II

Lawrence Cunningham — Tue, 05 Apr 2011 17:17:55 +0000

As we all migrate to the digital world, imagine the future of the law school course book by reflecting on its history, purposes, and promulgation over the seven generations since C.C. Langdell initiated our current mode of legal education in 1870.

Some see the future of digital course books as a radical shift, akin to the original revolution of Langdell’s Contracts casebook. Others dismiss it as a simple marketing maneuver, the way post-Langdell addition of notes, questions or problems might be regarded.

In a new essay, I look back at casebook history to find it suggests that digital course books are more likely to be something in between, an incremental but meaningful evolution. The essay, a chapter in a new book on the subject, engages with great innovations in law school course books over the past century-plus, highlighting historic contributions from luminaries across the century and today.

Section A’s brief excursion through the evolution of the course book for Contracts is a sober reminder of the plodding pace of change in American legal education. It prepares readers to appreciate trade-offs, opportunities, and risks associated with migration from print to digital books. These are elaborated in three ensuing Sections, all animated by the historical perspective and illuminating trade-offs, opportunities, and risks, though each stressing a different one of those three implications of the migration from print to digital law books.

Section B stresses trade-offs, especially concerning course books’ purposes and scope; Section C stresses opportunities the digital format offers, highlighting the appeal of digital methods to produce supplements, maintain a work’s currency, and facilitate skills training; and Section D discusses matters of presentation that creators of print and digital materials alike must address to promote usefulness – and calls for vigilance against associated risks. Section E synthesizes, concluding that digital course books are important and valuable, but not revolutionary.

Noted are contributions from the following, among others: from the old days: Samuel Williston, Arthur Corbin, Lon Fuller, Grant Gilmore; in more recent times: Allan Farnsworth, Charles Knapp, Karl Klare, Ian Macneil, Stewart Macaulay, Lenora Ledwon, Amy Kastely, Deborah Waire Post, Nancy Ota, Douglas Leslie, Robert Summers, Robert Hillman, Randy Barnett; and on law books and legal education generally: Paul Caron, Michael Kelly, Matthew Bodie, Bruce Kimball, Kellye Testy, Edward Rubin, and Steven Bradford.

Key Performance Indicators: Power as Knowledge

Frank Pasquale — Fri, 04 Mar 2011 22:27:05 +0000

There is an excellent review essay by Simon Head on the future of British universities in the NYRB. It discusses the Strategic Plan of the Higher Education Funding Council for England (HEFCE), including the “Research Assessment Exercise (RAE) led every six or seven years.” As of 2008, panels of 10 to 20 specialists in 67 fields evaluate work during RAEs. As the author explains,

The panels must award each submitted work one of four grades, ranging from 4*, the top grade, for work whose “quality is world leading in terms of originality, significance and rigor,” to the humble 1*, “recognized nationally in terms of originality, significance, and rigour.” The anthropologist John Davis . . . has written of exercises such as the RAE that their “rituals are shallow because they do not penetrate to the core.”

I have yet to meet anyone who seriously believes that the RAE panels—underpaid, under pressure of time, and needing to sift through thousands of scholarly works—can possibly do justice to the tiny minority of work that really is “world leading in terms of originality, significance and rigour.” But to expect the panels to do this is to miss the point of the RAE. Its roots are in the corporate, not the academic, world. It is really a “quality control” exercise imposed on academics by politicians; and the RAE grades are simply the raw material for Key Performance Indicators [KPIs], which politicians and bureaucrats can then manipulate in order to show that academics are (or are not) providing value for taxpayers’ money.

Imagine “needing to sift through thousands of scholarly works” in short order; what a bizarre process. There are many critics of RAE; this essay is particularly worth reading because it connects the dots between corporate-speak and the new academic order:

Of all the management practices that have become central in US business schools and consulting firms in the past twenty years—among them are “Business Process Reengineering,” “Total Quality Management,” “Benchmarking,” and “Management by Objectives”—the one that has had the greatest impact on British academic life is among the most obscure, the “Balanced Scorecard” (BSC). On the seventy-fifth anniversary of the Harvard Business Review in 1997, its editors judged the BSC to be among the most influential management concepts of the journal’s lifetime. . . .

[T]he methodologies of the Balanced Scorecard focus heavily on the setting up, targeting, and measurement of statistical Key Performance Indicators (KPIs). Kaplan and Norton’s central insight has been that with the IT revolution and the coming of networked computer systems, it is now possible to expand the number and variety of KPIs well beyond the traditional corporate concern with quarterly financial indicators such as gross revenues, net profits, and return on investment. . . . Writing in January 2010, the British biochemist John Allen of the University of London told of how “I have had to learn a new and strange vocabulary of ‘performance indicators,’ ‘metrics,’ ‘indicators of esteem,’ ‘units of assessment,’ ‘impact’ and ‘impact factors.’”

Head notes that the “academic control regime with its KPIs will continue to apply as much to philosophy, ancient Greek, and Chinese history as it does to physics, chemistry, and academic medicine.” It’s easy to project the types of biases the system will create: don’t offend people who might be on the selection committee; focus work on what they can recognize as “world leading” (one wonders how many languages the assessors know); and, of course, avoid writing long-form books to instead concentrate on high-impact journal articles that any panelist can recognize as an advance in the field.

An Australian business school professor, Dennis Tourish, has criticized similar efforts in his country. In business schools, “world leading” appears to be what plays well in America:

The most lauded journals are based in the US, since this is the biggest market for management education and has first leader advantage. These reflect the positivist and functionalist orthodoxy that dominates the discipline there. They pay relatively little attention to such problems in management theory and practice as exploitative working conditions, race or ethics. Non-US academics who wish to publish in such outlets – and few succeed – overwhelmingly have to adapt to their norms, practices and theoretical priorities to do so. . . . [emphasis added]

Elite journals also have a rejection rate, typically, of over 90 per cent. For some reason, this is used to justify the quality of a journal. It, therefore, becomes a target for others, convinced that competitive advantage can be obtained by copying the behaviours of their rivals. To achieve this, desk rejection is increasingly common. Editors have become judge, jury and, mostly, executioner. So much for the safeguards of peer review. If you dodge the bullet of desk rejection an arduous obstacle course remains.

One British academic complains that “whether my article is any good, or advances scholarship in the field, are quickly becoming secondary issues.”

Head provocatively asks “Might the scale of the global financial crisis, driven by the targeting mania of the Balanced Scorecard and by automated management systems, shake the confidence of those who think that these very same methods should be applied throughout to the academy?” It’s a great question, for, as Amar Bhide has argued in A Call for Judgment, the “balanced scorecard” approach has wrought havoc in finance as decisionmakers increasingly distant from actual borrowers have set in place manipulable numerical standards that did little more than increase the volume of transactions (and, thereby, high-ranked managers’ bonuses). RAEs will drive a similar boom in back-scratching citation networks and point-scoring articles. But no matter how flawed a business method or personality may be, they seem to have an irresistible lure to academic managerialists: witness the ascension of Lord Browne to lead a British education review after his smashing job at BP.

There will always be a tension between the autonomy of the academic enterprise and the need to subject it to the demands of markets and states for measurable benchmarks of productivity and efficiency. But the recent British & Australian efforts to rationalize the research enterprise risk turning society into a monoculture, where everyone is striving for more points (be they measured in money, esteem, or power). It reminds me of Hobbes’s Leviathan, where he observes, of “A Restlesse Desire Of Power:”

I put for a generall inclination of all mankind, a perpetuall and restlesse desire of Power after power, that ceaseth onely in Death. And the cause of this, is not alwayes that a man hopes for a more intensive delight, than he has already attained to; or that he cannot be content with a moderate power: but because he cannot assure the power and means to live well, which he hath present, without the acquisition of more.

The assessment systems are ever-unstable rankings, not stable scores; one has to keep playing the game or get left behind. The bureaucratization of research “excellence” is becoming as much a power as a knowledge game: those who define what counts as KPIs can, in turn, define contributions to knowledge. Perhaps this process always went on, sotto voce, as individual scholars in individual studies decided what research programs to pursue, and what to let die; whom to cite, and whom to ignore. That old, quiet process had many biases and problems of its own. But it now appears charmingly decentralized and humane in comparison with the assembly line of assessment mobilized by RAEs and journal rankings.

Rights and Responsibilities of Digital Citizenship

Danielle Citron — Sun, 28 Nov 2010 15:53:28 +0000

In response to a previous post, Seth Finkelstein asked me to develop the implications of a conception of digital citizenship, and rightly so. This post begins by explaining which intermediaries Helen Norton and I address and then develops our conception of digital citizenship in a bit more detail. A follow-up post will provide preliminary suggestions about how intermediaries could, and should, educate users about their rights and responsibilities as digital citizens.

As Jack Balkin highlights, the “informational filter, not information, is king” in our digital age. Internet intermediaries wield significant influence over our information landscape in much the same way that mass media does. Search engines, such as Google, Microsoft, and Yahoo, determine “what we read” and “who gets heard” by producing links to content in response to user requests. Popular social media sites, such as Facebook, YouTube, and Digg, structure online environments that enable large groups of individuals to connect with each other. While highlighting certain content and voices, Internet intermediaries downplay, block, and delete others. Christopher Yoo has extolled intermediaries’ exercise of editorial discretion as “promot[ing] important free speech values by helping shield audiences from unwanted speech and by helping them identify and access desired content.” As he observes, “the image of the Internet as an unintermediated experience, in which speakers speak directly to audiences without passing through any gatekeepers, is more myth than reality. The real question is not whether some actor, but rather which actor, will serve as the intermediary.”

Commentators have expressed concern about governmental efforts to enlist intermediaries as “proxy censors to control the flow of information.” In Intermediaries and Hate Speech: Fostering Digital Citizenship for the Information Age (forthcoming Boston University Law Review 2011), Helen Norton and I focus exclusively on intermediaries’ purely voluntary decisions to address hate speech. As private entities, intermediaries can, and do, refuse to address cyber hate. Twitter has taken this position. Rather than taking a neutral position vis-a-vis online hatred, other intermediaries encourage it. Consider the social network site Hate Book whose motto is “Post something you hate!” and thousands of websites, blogs, social network sites, and the like designed to spread hate. Our conception of digital citizenship addresses intermediaries that choose to prohibit hateful content (and those might do so in the future) rather than intermediaries that ignore or support it. Pursuant to terms of service agreements and community guidelines, intermediaries remove, denounce, or ignore instances of cyber hate. Yet beyond vaguely-worded prohibitions of “hateful or offensive” speech, intermediaries often provide little explanation or consistency for their actions. They leave unstated and perhaps unexplored how their decisions regarding cyber hate impact citizens whose capability to participate meaningfully offline and online depends upon their inclusion in networked spaces. Intermediaries ought to teach users how to be responsible and respected digital citizens.

In our view, responsible digital citizenship entails a commitment to liberal values—“individual freedom, diversity, and a pluralistic rather than monistic version of the good life.” We borrow from Richard Dagger’s liberal republican vision of citizenship, which contends that citizens have an obligation to respect individual rights and to help others exercise their right of autonomy. Valuing autonomy requires tolerance for those whose beliefs differ as long as they do not violate others’ right to autonomy. To respect other’s rights also involves acknowledging that “all persons are equally worthy of consideration; thus it is wrong to treat others as mere objects to be used for one’s own purposes.” As Jeremy Waldron contends, citizens are required in their public dealings to treat others as equally human and deserving of the dignity of humanity. As Kenneth Karst’s principle of equal citizenship suggests, people have a “right to be treated” as “respected, responsible participating members.” Digital citizens bear the responsibility not to establish “rival public goods,” such as denying other’s basic standing in society.

Digital citizenship embodies the notion that all citizens are worthy of respect. It protects individuals’ ability to partake freely in political, social, economic, and cultural opportunities online and offline. It hopes to secure the assurance of people’s basic dignity and social standing. As Anupam Chander has noted, cyberspace can help “give members of minority groups a fuller sense of citizenship—a right to a practice of citizenship that better reflects who they are.” This is only possible when members of such groups find cyberspace a safe environment where their views are not silenced. Digital citizenship entails shared responsibilities as well. As Robin West elegantly notes in Taking Freedom Seriously, “[o]nly by refocusing society towards shared responsibilities of each individual member of the collective whole and ‘taking responsibility seriously’ can the freedoms of a liberal society be best secured.” Digital citizenship means taking responsibility for treating others with respect. In short, it aims to secure respected and responsible participation in online life.

Intermediaries can foster digital citizenship by inculcating norms of respect. Just as law can be an “omnipresent teacher,” intermediaries’ actions can educate users about acceptable behavior. Their inaction in the face of online hate plays a similar role: Through silence, intermediaries send a powerful message about the scope of permissible behavior and suggests that group members are second-class citizens. With actions and words, intermediaries can teach users that online discourse should embrace traditions of non-discrimination and dignity as well as free expression. Intermediaries can address cyber hate in ways that reinforce users’ obligation to treat others with respect and discourage conduct that demeans others. In other words, intermediaries can engage in activities designed to foster a culture of respect, rather than overlook the culture of subordination and fear that online hate generates. In short, intermediaries can guide public norms towards an understanding that digital discourse should include attention to safety and respect for the dignity of other users. Intermediaries can and should play a similar role with regard to online hatred.

A follow-up post today will tackle the ways in which intermediaries could, and should, foster digital citizenship often without suppressing speech.

College Preparedness, Law, and the Structure of Standards

Craig Livermore — Thu, 11 Nov 2010 19:32:25 +0000

The Pathway of Preparedness

There is a current debate concerning whether the standard of college preparedness should be written into the structures of education law. The college preparedness argument has been rising to the fore due to the revisions to the current version of the Elementary and Secondary Education Act-popularly known as the No Child Left Behind Act (NCLBA)-proposed in the Obama Administration’s “Blue Print for Reform.” President Obama’s suggested revisions would replace the current NCLBA math, English language arts, and science proficiency standards as a means of evaluating schools with various other measurements, including whether students at schools are being prepared to be “college and career ready.” The proposed change to the legal federal assessment standard is driven by the administration’s view that post-secondary education is essential to individual, communal, and national competitiveness in the Twenty-First Century. President Obama has announced the goal of regaining the global lead in the proportion of the citizenry obtaining post-secondary degrees by 2020. In the realm of education, law is increasingly being relied upon to create incentives, structures and values which have traditionally been thought to be in the realm of private production. The traditional conception of the public school is properly being recast from a provider of information and skill, to the central institution in communal renewal.

However, the federal focus on college preparedness, as with many educational initiatives of the Obama administration, has received criticism. Critics of this emphasis argue that college preparedness is a one size fits all category which will inevitably stigmatize students without the ability or proclivity to attend college, and thus contribute to greater levels of failure and higher school drop out rates due to psychological pressures. Such critics contend that there are many solid middle class trade careers of value which can be viable options for students without the skill level or desire for college. However, defenders of college preparedness are often concerned with a specific context-the inadequacy of our educational systems to address the needs of dis-empowered minority groups, especially in the urban context. College preparedness champions often believe that critics do not fully understand and/or acknowledge the causation of the extreme racial disparities in educational outcomes.

The debate over college preparedness can be seen as one iteration of the continuing philosophical divide between those who tout the importance of “high expectations” and incentives for greater minority education performance, and those who voice concern that such high expectations do not sufficiently account for the context and communal challenges of under-performing minority groups. Critics of the “high expectations” movement, however, misapprehend the cultural and psychological impact of persistent high expectations college preparedness messaging for the following reasons:

1) The argument that such messaging will create stigmatizing inferiority complexes and lead to students dropping out of school is dubious. The same argument is often made concerning standardized assessment. Yet the national graduate rate for blacks and Latinos is near 50%, and has been appallingly low long before college preparedness became a hot catchphrase, and before the growth of the high stakes testing movement in the 1990′s.

2) There is a plethora of research indicating that resilience is one of the strongest factors leading to the avoidance of high risk behavior in youth, and allowing for long term educational success. High expectations critics are concerned about the stigmatic implications and stress caused by challenging standards. But the high expectations camp views the life of most low-income minority students as endemically filled with daily disappointment, hardship and set-back, and believes that with the proper educational support, structure and expectations, minority youth can overcome and build skills to deal with the disappointment which is an inevitable aspect of living in the lower segments of an inequitable society.

Moreover, those critical of college preparedness standards and the “high expectations” movement perhaps too easily divide the challenges of the inequalities of the black and Latino educational landscape into those who make it, and those who are at great risk of criminal involvement, incarceration, high school drop-out, and other indicators of extreme and overt societal exclusion. However, unfortunately, the injustice of educational inequities persists throughout all realms of society. For example, analysis of National Assessment of Educational Progress (NAEP) skills diagnostic exams reveals discrepancies of foundational educational academic ability between blacks and Latinos on one hand, and whites and Asians on the other, even when factors such as class and family structure are controlled. Thus, to support a high expectations college preparedness standard is not to espouse an unreasonably elitist doctrine, but is, to the contrary, to recognize that our society has accepted different and lower standards for blacks and Latinos. Thus, while four year college graduation rates for Asians and and whites remain around 70%, similar graduation rates for black and Latinos remain around 40%. And to use a professional example which serves as a pipeline for leadership, the proportional law school enrollment of blacks and most Latino groups has been lowering over the past 15 years, and blacks make up only 4% and Latino’s 3% of the United State Bar, while blacks constitute 12% and Latino’s 15% of the general population.

Although black and Latino post-secondary enrollment has recently been rising, almost all of such matriculation increase has been in community colleges and for-profit trade colleges and universities. In this regard President Obama’s proposed “college and career ready” legal standard may be dangerously malleable. The President envisions community colleges as contributing greatly to the increase in college degrees and as an important aspect of building greater opportunity in dis-empowered minority communities. Thus, the President has recently hosted the White House Summit on Community Colleges to build momentum for this idea. Yet, community colleges only graduate 20% of all those who matriculate, and the average community college graduate earns only a few more thousand dollars per year than the average high school graduate. And the greatest growth in minority post secondary enrollment has been in for-profit colleges. Yet, for-profit education companies such as Kaplan, The University of Phoenix, DeVry, and Corinthian Colleges are becoming increasingly known for operating educational institutions which produce degrees which are unable to pay for the debt accrued for such degrees. Moreover, Congress, The Department of Education, and the Government Accountability Office have greatly increased scrutiny of such institutions due to increasing evidence that they specifically target high-risk minorities in order to benefit from the federal financial aid that such minorities receive once enrolled. Community colleges and for-profit universities have become low-standard dumping grounds in which black and Latino students are funnelled for educational services that are not preparing them to compete.

This is not to say that there is no need for post-secondary education outside of the four year context. Education law certainly must account for a wide variety of skill level, and the need for, and importance of, a technically trained workforce. However, the adoption of “college and career ready” standards must create clear incentives and accountability for all schools to prepare an adequate number of their graduates to compete at four year colleges. Our society has accepted, tolerated, and perpetuated lower standards for blacks and Latinos, and those serving blacks and Latinos, in all levels of education. Education law and reform is increasingly recognizing the dangers of such low standards, and is attempting to create structures through competition, incentive and accountability to raise such standards. Increasingly schools, colleges and universities are being positioned as the central institutions for rebuilding community and achieving greater societal equality. As this trend continues, the law must ensure that such standards are sufficiently high to create competitive opportunity for those from dis-empowered minority groups.

Higher Education Accreditation and Brain Drain

Alan Chen — Tue, 09 Nov 2010 06:47:20 +0000

For the past two years, I’ve served on the steering committee and a subcommittee preparing for the University of Denver’s re-accreditation by the Higher Learning Commission, the regional accreditation body for post-secondary education institutions in the North Central region of the United States. The HLC site team is visiting our campus this week, and many of us involved will need to attend numerous meetings during its visit. And, no doubt, our duties are not yet at an end, as surely there will be issues after the initial HLC report to which the university will need to respond. About a month ago, I sat in a meeting to begin planning for my law school’s self-study for its ABA re-accreditation, with our site visit scheduled for spring 2012. Other members of my law school’s administration and staff have recently completed the chore of responding to the annual ABA questionnaire. Feeling a lot like a hamster in a wheel, I have been thinking a lot about the impact that various accreditation processes have on the human capital of higher education faculties.

In my view, the opportunity costs of the collective human resources that are routinely expended by higher education institutions on accreditation compliance border on the unconscionable. The total personnel hours alone are enormous, but the costs are qualitative as well as quantitative. Universities and professional schools have a strong incentive to assign the vast data collection and compilation and report drafting to faculty and staff whom they trust to ensure that their self-studies are done thoroughly and professionally. In my experience, those assigned to accreditation committees are likely to include many of the institution’s more prolific scholars and best teachers. Thus, two of the most important things that we are evaluated for – teaching students and generating scholarship – inevitably suffer because of the time drawn away from those activities to compile the self-study. One can imagine someone like David Lodge parodying the conversation between a site inspector and a university representative about the school’s lack of scholarly production because the faculty has been immersed in the self-study effort.

This brain drain is not indigenous to the school being inspected. The same could be said about those from other institutions who serve on site-inspection teams (also likely to be successful teacher, scholars, and administrators), who are likewise taken from the things they are the best at so they may evaluate others. Of course, there are dozens of other things that detract from teaching and scholarship, not the least of which is committee service in general (and don’t even get me started on that brain drain), but none quite as ironic as the time lost to accreditation.

To be sure, accreditation by outside bodies serves important purposes

by providing external validation, maintaining credibility with the higher education community and prospective students, and ensuring a periodic opportunity for institutional introspection. I would not favor abandoning outside accreditation, but surely there must be more efficient ways to go about the process. One possibility would be to reduce the frequency of inspections. Under most regimes, each re-accreditation is a multi-year process, with the self-study typically taking about two years before the site visit, followed by an initial report identifying issues that the accrediting body would like the school to address, followed by correspondence back and forth over many months to address these issues. By the time the process is over, it can be close to the time when a school has to start thinking about the next accreditation cycle. Extending the down time between inspections would give faculty a chance to do what we are actually hired to do. Alternatively, the process itself could be compacted into a shorter time frame so that the post site inspection process is not so protracted. Or institutions might try to be more efficient internally and take measures to create an ongoing data collection process that would make the drafting of each new self-study a little less burdensome. If some staff and administrators are assigned the task of keeping the repository of information collected for the most recent self-study continually updated, the time spent collecting that data upon the next inspection will be minimal. My own University plans to undertake such a process after the HLC visit this week.

For my next post, maybe I’ll find the time to write about some law.

Law, Education, and Hard-Driving Reform

Craig Livermore — Mon, 01 Nov 2010 17:38:46 +0000

Shortly after Washington D.C. Mayor Adrian Fenty was defeated in the mayoral primary this September, Michelle Rhee resigned from her position as the Washington D.C. Schools Chancellor. In her three years in the position, Rhee had gained a national reputation as a zealous “no-excuses” reformer seeking to hold teachers and educational administrators accountable in an attempt to raise urban student assessment scores. Along with Geoffry Canada of the Harlem Children’s Zone, Rhee is spotlighted in the educational documentary Waiting for Superman as the type of reformer needed to turn around the multi-decade dysfunction and despair of urban education. However, Mayor Fenty’s political loss and Michelle Rhee’s resignation can rightly been seen as the most visible incident of a growing national educational trend to push back on hard-driving top-down reform with genesis outside of the communities which are in need of reform.

When Newark Mayor Cory Booker, New Jersey Governor Chris Christie and Facebook Founder Mark Zuckerberg (Geoffry Canada was there as well) recently appeared on the Oprah Winfrey Show to announce the $100 million donation to the Newark Schools by Zuckerberg, Oprah hinted to Mayor Booker that Rhee is a dynamic reformer who could fill the soon to be vacant position of the Newark Public Schools Superintendent. Mayor Booker affirmed Rhee’s dynamism, but quickly stated that the real genesis of reform in urban education must emanate organically from the community. It is the parents, students, and community members which must be the supermen and superwomen. And thus, on November 1, 2010, an initiative called PEN Newark (Partnership for Education in Newark) has been launched as the first stage in the utilization of the Zuckerberg donation for education reform. PEN Newark has been founded as a collaborative effort between Mayor Booker and Newark Public Schools Advisory Board of Education Chair Shavar Jeffries. Jeffries is an organic leader from Newark who ran his campaign in 2010 on a platform of community engagement. The initiative is an extensive feedback and outreach initiative. Its mission is to connect, interview, survey, and speak with all stakeholders within the Newark community concerning the types of reform the Zuckerberg donation should generate. Mayor Booker has learned this political lesson well. And, indeed, this is the model of participative and collaborative reform that is gaining momentum nationally as a reaction to hard-driving no-excuses top-down reform.

But if this is all politics and education, what does it have to do with the Law? Everything. Public education in the United States is completely constructed and defined by an interactive array of legal regulation–both policy and jurisprudence. From comprehensive federal accountability legislation such as the No Child Left Behind Act (the current iteration of the Elementary and Secondary Education Act first passed by Congress in 1965), to the interpretation of educational rights by state and federal courts, to the strong support of collective bargaining agreements by most state law makers, education is minutely regulated. For example, the New Jersey Supreme Court’s 20 Abbott v. Burke opinions have interpreted the New Jersey Constitution’s right to a “thorough and efficient education” (Article VIII, Sec. 4) to not only delineate school funding formulas which provide for vertical equity (more money for students facing greater need), but have also mandated preschool education, reform from specific educational models, facilities construction and even curricular content standards. Over the past forty years, as urban schools have increasingly struggled with low performance, inefficiency and mismanagement, and, at times, corruption, greater detail and layers of policy and jurisprudence-based regulation have been implemented. When such micro-regulation has been added to schools within communities under great stress and poverty, dysfunction has been guaranteed, and stasis has resulted.

The Michelle Rhee approach was to pound away at the stasis. Although Rhee actually did achieve significant reform measures during her tenure (creating more administrative efficiency and convincing the teachers union to accept teacher performance as an element of lay-off policy), ultimately the process of her approach created too much negative sentiment to achieve sustainability. The more participatory reform approach is to institute reforms which originate in the community (or at least institute reforms after the community has given input). But the question remains: Can a community preference as consumer approach generate change which entails the reform of the community itself? The answer may be: Not without the proper structures and incentives created by the law.

The legal answer may be to create the proper incentives and structures in the highest levels of the law–especially at the federal level–deregulate in the middle, and allow local communities to respond to incentives. Enter President Obama and Arne Duncan. The Race to the Top state grant competition which is part of the American Recovery and Reinvestment Act has spurred unprecedented state educational reform. For example, as a result of Race to the Top, 36 states have committed to rigorous national content standards, and 44 states are working toward rigorous national assessment standards. States are also moving in large measure toward implementation of data-driven teacher and school accountability. Moreover, President Obama’s Blue Print for Reform offers a similar philosophy–a combination of accountability and flexibility–in its call for amendment to the No Child Left Behind Act.

Accountability and incentive at the top, and creativity at the bottom–this may be education’s best hope. But much remains to be seen. Whether this current matrix of forces will achieve concrete results is not guaranteed. But any true reform must take place in the hearts of communities. Any real conversion must be authentically existent in the deepest soul of the individual. But in the case of education, it may be the Law as incentive and structure which is needed to provide the force necessary to stimulate conversion.