Quality and Equality in Education

A regular reader of the blog alerted me to this story on the Finnish education system, which has been studied around the world for its extraordinary accomplishments:

[B]y one international measure, Finnish teenagers are among the smartest in the world. They earned some of the top scores by 15-year-old students who were tested in 57 countries. American teens finished among the world's C students even as U.S. educators piled on more homework, standards and rules.

Certainly cultural factors play an important role here. But Finland's experience should also challenge any easy assumptions that pursuing equality in educational opportunity leads to a decline in the quality of education for top students:

Each school year, the U.S. spends an average of $8,700 per student, while the Finns spend $7,500. Finland's high-tax government provides roughly equal per-pupil funding, unlike the disparities between Beverly Hills public schools, for example, and schools in poorer districts. The gap between Finland's best- and worst-performing schools was the smallest of any country in the PISA testing. The U.S. ranks about average.

Finnish students have little angstata -- or teen angst -- about getting into the best university, and no worries about paying for it. College is free. There is competition for college based on academic specialties -- medical school, for instance. But even the best universities don't have the elite status of a Harvard.

Note that the same "lessening of the stakes" pervades much of the rest of the economy in Finland. America may need to reconsider whether its own inequalities in educational opportunity are not simply a burden on the disadvantaged, but also militate against our economic position as a whole.

Posted by Frank Pasquale at 09:23 PM | Comments (1) | TrackBack

And Now a Word From Our Sponsors...: The Ethics of Sponsored Courses and Maybe Chairs?

Inside Higher Ed details that Hunter College offered a course that was sponsored by an industry group called International Anticounterfeiting Coalition (known as the IACC). The group represents major fashion industry companies. The class well that is where the fun begins. Apparently the

students would create a campaign against counterfeiting in which they would create a fake Web site to tell the story of a fictional student experiencing trauma because of fake consumer goods. One goal of the effort was to mislead students not in the course into thinking that they were reading about someone real.

The article raises some good questions: Why have students perform free labor for the fashion industry (and really pay for the privilege?)? What about the underlying lies? These issues remind me of the LonleyGirl issues (there a fake videoblog lured people into what appeared to be a true personal site but was a front for a group launching a film company. Eric Goldman has a set of quick links that highlight the problems of user-generated content, ads, and quality. In general the school's willingness to offer a class that propagates a shall we say less than authentic Web site is an example of the marketer's will. Not that this point should exonerate the school. (Note that apparently Iowa turned down money when it was unsure about naming a school after the donor).

Still according to the article "other colleges do work with IACC" including Ohio State University but at least Ohio State does not operate in the same way as Hunter allegedly did. Ohio State seems to set up the projects as out of class activities. Hunter's class according to some was directed by the IACC such "that the professor was required to teach only one side of the issue, had to accept industry officials watching him teach, and had little clout to fight back since he didn’t (and still doesn’t) have tenure."

So it goes. Schools need cash and corporations have it. Would a school bow to its donors? Are schools market immune? Of course they aspire to be but the reality is different. Further as public schools lose the endowment race, they will be more and more beholden to outside funding. I am not, repeat not, saying that schools should operate so that they bow to corporate requests. I am saying that the issue is alive and well and not so easy to combat. If the allegations are true, Hunter seems to be the easy case, don't do it. The harder ones will be the subtle questions of hiring, curriculum, and building funds which can easily look like a decision based on lack of funds when perhaps other interests scuttled the project.

Hat Tip: Slashdot

Image: Manuel Dohmen WikiCommons

License: GNU Free Documentation license, Version 1.2

Posted by Deven Desai at 08:12 PM | Comments (1) | TrackBack

Short courses?

Greetings from (mostly sunny) Champaign-Urbana, where I'm spending the week, teaching a short course on Federalism and the Making of American Corporate Law at the University of Illinois. Under the law school's short-course program, the brainchild of Ralph Brubaker, my former colleague at Emory and now Associate Dean here at Illinois, anywhere from five to ten professors, judges, and attorneys come to campus each term, to teach a week-long, one-credit course.

I'm told the students generally love the short courses. My own data - consisting of the (fairly high, I think) enrollment of 27 students in the class, and good participation in the first class (yesterday) - would seem to confirm as much. For the visitors, meanwhile, it can be an occasion to try something new, or at least different, and to spend time with academic colleagues they might otherwise only see in passing, in the hallways at AALS. For Illinois, finally, it's an opportunity to spread good impressions and good will among legal academics, on the bench, and with the bar. (As Charles Tabb - who's serving as Interim Dean - put it, it's a great way "to make new friends.")

At Emory, we have "accelerated courses," but of a different sort. Visitors, most commonly hailing from overseas, come for four to seven weeks to teach a class or two. Again, students like it, etc. Obviously, though, the longer format engages a completely different set of potential visitors.

Do other schools do anything similar to Illinois? If not, it's something I suspect might be well-worth considering.

Posted by Robert Ahdieh at 07:00 AM | Comments (3) | TrackBack

Should Harvard Last Forever?

Set in the year 3172, Samuel Delany's novel Nova envisions a future where virtually everything has changed...except for the persistent Harvard University, home to the "eccentric, the brilliant, and the very wealthy." As Harvard's endowment balloons to $35 billion, Delany's work looks less like fantasy and more like prophecy. In our day huge sums of money are the "monumentum perennium" Horace once deemed poetry.

But a former aide to Lynne Cheney has been crusading for wealthy universities to spend more of their endowments, and may be winning the battle of public opinion:

Lynne Munson dismisses Harvard University's new plan to spend $22-million more annually on student aid as "miserly." She says Yale University could have shown more leadership by pledging to spend at least 5 percent of its endowment each year, rather than the 4.5-percent minimum it announced last week. And she contends that dozens of other wealthy colleges . . . are guilty of "hoarding" because they do not spend enough to help keep tuitions down.

There are lots of tricky issues here, complicated by an increasingly winner-take-all society and the pernicious USNWR rankings rat race. As the compensation of I-bankers and CEOs rises to stratospheric levels, the top universities may feel that they have to keep raising their own salaries to keep pace. Moreover, competitive pressures are going to lead more universities to try to increase their average incoming SAT scores by offering merit scholarships and providing other amenities.

Robert Frank has proposed curbing that kind of "positional competition" with progressive taxes. Will a spending requirement for endowments have similar effects? Republican senator Charles E. Grassley appears to believe that it will at least lead to tuition relief; he has said

requiring wealthy universities to spend a higher percentage of their endowments could help "more working families see the benefits" of lower tuition bills. . . . The Senate proposal, which has yet to be introduced as legislation, could require rich universities to spend at least 5 percent of their endowment, as private foundations are now required to do, or lose the tax exemption they enjoy on their endowment earnings.

Seems like a fair proposal to me--and it also gives wealthy schools ample opportunity to keep open (in some form) to the end of time.

Posted by Frank Pasquale at 09:31 PM | Comments (14) | TrackBack

Going Laptopless: Larry Mitchell Faces the Naked Masses and Likes What He Sees

To kick things off, I thought I'd report the findings of Larry Mitchell (a colleague and author of, most recently, The Speculation Economy), who decided to teach laptopless in two of his classes this semester. Here's what he had to say about it in an email to me earlier today:

For the first time, I banned laptops in my classrooms (my courses this semester are Jurisprudence and Corporate Finance; yes, I banned laptops in Finance, and they didn't kvetch). Anyway, only a week of classes has passed, but I can unscientifically report that this was the best opening week of classes I've had in longer than I can remember. Typically on first days, even in Jurisprudence, it's like pulling teeth to get them to say anything, I have to call on them, they give limited if any responses, and the time passes about as quickly as glaciers used to melt.

What a difference. I asked one question in Jurisprudence at the beginning of class. Two hours (and 12 volunteer participants of 16 students later), I felt like we had hardly begun. They were engaged, their remarks were excellent, and they were clearly excited. Over three 55 minute Corporate Finance classes, I had easily 15 or so (of 60) volunteers, and one day was a single case on which I kept a single student for almost the entire class. Again, the comments were good and required very little prompting.

I was pretty sure that banning laptops would improve classes, but I couldn't possibly have imagined how much. While it's early, I'd be very surprised if it didn't continue, especially now that my students have set the tone and pace for themselves.

A few comments. First, this is not a new issue (see, e.g., here, here, here, and here). Second, Larry's students actually seem smarter to him without their laptops. I have to say, I had the same reaction (well, the reverse reaction) when I allowed laptops in my class for the first time this year. The dynamic is completely different in class, and students seemed far less sharp when hidden behind their laptops. I'd imagine (though can't say for sure) that they must feel the same way about each other, and that (subjectively, anyway) going laptopless would increase the average quality of students' experience of law school.

One cautionary note about going laptopless for those who are considering the move -- it can leave both students and professors feeling a bit exposed. A crowd of people looking at screens and a crowd of people staring directly at you are two very different things. Still, I'm leaning towards switching back to laptopless teaching next year.

I say "leaning" because there is some worry in the administration about how students will feel about the move. Why worry? It's not a concern about academic engagement -- that seems to cut in favor of ditching the devices. Larry hasn't had any complaints, and many of my students, far from complaining when I did it, appreciated the move and expressed that they enjoyed class more without laptops. The concern is that we, like most law schools, require every student to purchase a laptop; barring them from the classroom thus strikes some to be inconsistent with the requirement.

I see the point, but can't really say much more than that without some more data. So let's collect some data: What do you think about ditching laptops? Are you a student, and have you been in a laptopless class? Are you a teacher who's tried it both ways? If you couldn't shop for shoes during a boring class would drop out of law school, or would you find meaning in the class?

Posted by Donald Braman at 02:39 PM | Comments (21) | TrackBack

Slow Boat to China Cancelled: Post Office Ends Bulk Rate M-Bags

NPR reports that the U.S. Post Office has ended its M-bag service, at least the old $1 per pound service which took a long time but as one person interviewed noted that does not matter with books. Now one must pay $3 to $4 per pound and use an air mail service. The problem here is that many charities sending books to Africa, Israel, Indonesia, and elsewhere can no longer afford to send books at the new rates. NPR pointed out that the claim regarding the increase is that the old rate is not viable and impacts the mandate that the Post Office break even in all classes of mail it offers, but apparently the Post Office is not really aware of what the service cost. It does appear that countries are less willing to receive mail at ports other than airports. Some claim that the low-cost surface mail has a political, good-will impact as local schools receive books and know that someone in the U.S. helped them.

The problem reminds me of Maggie Chon’s work regarding intellectual property and development. Her two recent articles, Intellectual Property from Below: Copyright and Capability for Education (Cardozo Law Review) and Intellectual Property and the Development Divide (U.C. Davis Law Review) examine the link between intellectual property and the how it can have a “substantive equality principle, measuring its welfare-generating outcomes not only by economic growth but also by distributional effects.” The piece about education seems all the more pertinent. Insofar as means to distribute hardcopy texts are diminishing, Prof. Chon’s presentation of “A human development framework [which] allows intellectual property norm-setters to prioritize the development of healthy and literate populations” draws attention to the goals of intellectual property and what the system is trying to do not mention offering a potent argument regarding what the goals are. In addition lest one think the postal system is not about distributing information, at least one author, David Henken, details the origins of the U.S. postal service in his book The Postal Age and points out “From its creation, the U.S. Post Office was committed principally to facilitating the wide circulation of political news, allowing an informed citizenry to live far from the metropolitan centers of government while remaining active in its affairs.”

Image: Mail Service Sea Plane, Wikicommons

Posted by Deven Desai at 12:01 AM | Comments (1) | TrackBack

Taking a Bit of My Own Advice About Failing Well

I happened to see two quotes yesterday that seemed apropos to the subject of success and failure, which has caught my attention over the last couple days. The first comes from Winston Churchill: "I am always ready to learn although I do not always like being taught." The second is attributed to Henry James: "No man like to have his intelligence or good faith questioned, especially if he has doubts about it himself."

It's appointments season, so considerations of success and failure smack you in the face whether you like it or not. If my reaction is at all typical, you have to wonder, in the abundance of talent seeking jobs in the legal academy, how you yourself ever got hired. (Well, I am sure there are a few people out there who don't have to wonder.) In the midst of a hiring season induced bout of impostor syndrome, I received a rejection e-mail from a peer-reviewed journal on a piece I had submitted six months ago. It's pretty clear it was rejected at the editor level, not after being sent out for review (my experience from having had rejected a book manuscript that richly deserved to be rejected is that if the latter, you see the reviews). So I am here thinking out loud about taking my own advice, liberally offered to others, about failing well.

1. It's not bad to fail ambitiously. I was attempting a difficult placement, and it was something of a flier when I started it. With six months reflection, I see my own weaknesses better (too many thoughts crammed into too little space; not enough accommodation to the concrete versus the abstract, hesitation about my own voice, etc., etc.).

2. Like Winston Churchill, I don't mind learning, but I don't always like being taught. What I think is more accurate in my case is that I don't mind learning, I don't even mind being taught (by a kind teacher), but I really don't relish the prospect of being taught or criticized, which is always far worse in the anticipation than in the doing. And that, I think, is because of a slight variation on Henry James' offering, which is that we Type-A, hyper-competitive, perfectionist, impostor-syndrome-affected sorts don't like to anticipate our intelligence being questioned (which it rarely is!), especially when we have doubts about it ourselves.

3. It's probably a bit of jargon, but in my prior life I always liked the idea of a learning organization as corporate model. It's really, really tough to do, because it's idealistic and aspirational, and the realities always come back to undermine it. Nevertheless, it's a powerful enough concept that GE installed Steve Kerr as its Chief Learning Officer a number of years ago (he since moved on to Goldman Sachs doing the same thing). Learning in this context is more than being educated. This is from Peter Senge's The Fifth Discipline, which attracted quite a following. The idea is "personal mastery," the kind of self-view we'd expect both from leaders and those led in a learning organization:

People with a high level of personal mastery live in a continual learning mode. They never ‘arrive’. Sometimes, language, such as the term ‘personal mastery’ creates a misleading sense of definiteness, of black and white. But personal mastery is not something you possess. It is a process. It is a lifelong discipline. People with a high level of personal mastery are acutely aware of their ignorance, their incompetence, their growth areas. And they are deeply self-confident. Paradoxical? Only for those who do not see the ‘journey is the reward’.

The great irony here, of course, is that schools are not necessarily learning organizations, particularly for faculty, but that's a subject for another time and another place. Suffice it to say that in a learning organization we would talk about the relationship between failing ambitiously and succeeding cautiously.

Posted by Jeff Lipshaw at 12:25 PM | Comments (1) | TrackBack

Larson on Legacy Preferences as Titles of Nobility

Carlton Larson's article on the "Unconstitutionality of Legacy Preferences in Public School Admissions" is provocative, persuasive, and beautifully written. I read its seamless synthesis of legal history and constitutional advocacy at one sitting, and I think anyone interested in egalitarian thought would do well to consult it. As its precis states,

[The Article] sets forth a framework for building a modern jurisprudence under the Nobility Clauses and concludes that legacy preferences are blatantly inconsistent with the Constitution's prohibition on hereditary privilege. Indeed, the closest analogues to such preferences in American law are the notorious “grandfather clauses” of the Jim Crow South, under which access to the ballot was predicated upon the status of one's ancestors. The Article considers a variety of counterarguments supporting the practice of legacy preferences and concludes that none of them are sufficient to surmount the Nobility Clauses' prohibition of hereditary privilege.

Larson's piece is also impeccably timed, as controversy over admissions to elite universities heats up. Justice Talking featured a series of speakers on college admissions on last week's podcast. As book after book reveals inequities in the system, apologists for privilege are mounting a counterattack. Larson's article reminds us of what is at stake--no less than the egalitarian values at the core of the American Revolution's rejection of British aristocracy.

I particularly liked this exposition of Thomas Paine's views:

Paine crystallized the exasperation so many Americans felt in the presence of a hereditary monarchy and a hereditary House of Lords. Although the supporters of monarchy invoked biblical authority, Paine argued that monarchy was “the most preposterous invention the Devil ever set on foot for the promotion of idolatry.” Hereditary succession was “an insult and an imposition on posterity.” “One of the strongest natural proofs of the folly of hereditary right in kings,” Paine argued, “is that nature disapproves it, otherwise she would not so frequently turn it into ridicule, by giving mankind an ass for a lion.” It opens the door to “the foolish, the wicked, and the improper.”

Larson's legal history work leads to some solid policy proposals. Here is his stirring conclusion:

[L]egacy preferences belong more to the world of eighteenth-century British aristocracy than to the world of twenty-firstcentury American democracy. It is that British world of inherited privilege that the Revolutionary generation sought to destroy forever. And each day legacy preferences remain in place in public universities is a betrayal not only of America’s highest aspirations, but of the explicit command of the Constitution itself.

Though I agree wholeheartedly with Larson's proposal, I wonder if the symbolic indicia of nobility might be decoupled from its monetary advantages--or compensated for by certain measures. I linked to Gary Lavergne's article above (sorry for the walled garden); he has some interesting things to say about these issues:

[E]lite colleges are overpopulated with affluent young people, but it is undeniable that such students are qualified to be there and are successfully earning diplomas. We need more acceptable alternatives for all who have demonstrated they can perform at such a high academic level — at a probable cost of hundreds of billions of dollars. . . . We must move away from the debate about "who gets in" to one about how to provide elite-like quality to many more. All sides of the access argument can easily present thousands of highly qualified students who could succeed in the environment of a demanding, highly selective university..

So I suppose one response to Larson would be: what if legacy preferences were compensated by money granted to provide equivalent educations to the people displaced by the preferences? Would that avoid the constitutional problem he's so skillfully identified?

PS: On the "full disclosure" note, I should add that Carlton and I have known each other since being bitter competitors in the "Citizen Bee," a now-defunct high school civics contest. But I'd recommend this piece even if I didn't know him from Adam.

Hat Tip: Legal Theory Blog, which notes Larson's "knack for seeing new uses of old (and neglected) clauses."

Posted by Frank Pasquale at 11:21 PM | Comments (1) | TrackBack

Corporate College Presidents and Super-Sized Endowments

Yesterday The New York Times had two articles that left me thinking about university endowments. One discussed the increased Congressional pressure on charitable institutions to spend down their endowments; the other noted the soaring salaries of college presidents. Combined, the articles highlight the need to challenge conventional thinking about what constitutes a strong endowment.

The Times reports that in the last 10 years, the amount of assets held by non-profits has nearly doubled, to $2.5 trillion by the end of 2005. Educational institutions held almost $600 billion. (If nothing else, employees deciding whether to enroll in TIAA-CREF should take note of what compounding interest and tax-free gains can yield!) Private foundations are required to spend 5% of their assets each year; educational institutions are not subject to even this minimal requirement.

Grinnell College, with 1500 students and an endowment of over $1 billion, was highlighted in the Times article. Russell Osgood, Grinnell’s president, points out that Grinnell gave about $1 million more in financial aid than it received in revenue from tuition and fees. He also says,“We’re here to ensure the long-term health and function of Grinnell College. That’s our sole objective.” But the Times does not quote Osgood as explaining why more than $1 billion is necessary to protect a small liberal arts college against an economic downturn. Rather, Osgood says:

Society at large benefits from those monies being invested in our economy. . . . The United States has a problem with its rate of savings, and one of the few bright spots are colleges and universities, which are two of the largest contributors to the national rate of savings. Anyone thinking about reducing endowments should think long and hard about what that might do to the overall ability to generate jobs and fund good ideas.

Maybe, although no-one is suggesting that universities empty their coffers. And the national savings rate is what not alumni were thinking about when they wrote checks to their alma mater, or what Congress was considering when it extended favorable tax treatment to educational institutions and their donors.

As the Times article suggests, the philanthropic wind is shifting. Spurred by individuals like Warren Buffet, whose multi-billion dollar gift to the Gates Foundation stipulates that his donations have to be spent within a year, donors are focusing anew on whether institutions use dollars, not just accumulate them.

This is where the salaries of college presidents come into play. The Times reports,

Soaring compensation of university presidents, once limited to a few wealthy institutions, is becoming increasingly common, with the number of million-dollar pay packages at private institutions nearly doubling last year, and compensation at many public universities not far behind.

The rising pay is consistent with a “corporate mindset” at educational institutions, with “intense competition to hold onto talented executives necessary to help build institutional wealth and prestige.” That is, boards of trustees justify the high salaries by pointing to what the president has done for the size of the endowment.

I’m not suggesting that college presidents are refusing to spend down endowments because they want to justify the next big pay hike. But like CEOs in the corporate world, presidents have to show that the “stock value” of their institution has appreciated during their tenure. A college’s stock value entails a lot of subjective evaluation, as the endless criticism of the U.S. News rankings illustrates. But the size of the endowment is a concrete and convenient shorthand for the overall strength of an institution.

Except, of course, when endowments get so large that their primary virtue is the contribution they make to the national savings rate. So why not devise a different measure of what constitutes a successful endowment--one that would reflect the size of the endowment, the percentage of earnings and assets spent each year, and how the spending reflects the college's (realistic) short and long term goals. Such an individualized assessment would be difficult to do from afar, but donors, particularly big ticket ones, have the clout to demand that universities start thinking a little more like Warren Buffet. The result would have immediate benefits for university communities and those that benefit from their work, and would be more in keeping with the reasons for extending favorable tax treatment to universities and their donors.

Posted by Sarah Waldeck at 04:41 PM | Comments (2) | TrackBack

Diversity?

Did you ever notice that law school hiring seems to aim for not-all-that-diverse diversity? It reminds me of a friend who claims to love Thai food and then orders everything "extra mild." Does he like Thai food (as in embrace it) or does he simply embrace the idea of liking Thai food? It's like the question I often ask my classes: Can you have a preference for a preference?

How is this like faculty hiring for diversity? My, admittedly unofficial, view is that when hiring committees look for candidates the pecking order is like this:
White elite eduated male
White elite ed. female
African American ed. elite male
African Americna ed. elite female
White non elite female
White non elite male
African American non elite female
African American non elite female

The ranking is, no surprise, consistent with social comfort and, let's face it, given that there is no evidence that one group is better at law teaching than another and that law professors can "interpret" resumes to mean anything, social comfort plays a big role.

So, do law professors on average like the idea of embracing diversity or do they really embrace diversity? I think it's the former and it's not even close. They have a preference for a preference for diversity but the real preference is just not there.

So how would you recruit for actually diversity? No question in my mind that race is a big factor but how about these questions:

1. What was your father or mother's occupation?
2. How much school did your father and mother complete?
3. How much student debt have you accumulated?
4. How many people do you know at an Ivy League school?
5. Ever worked at McDonalds, washed cars, or bagged groceries?
6. Anyone in your family on welfare.
7. Has anyone in your family done time?
8. Ever been out of the US?
9. What is the difference between rigatoni and zitti? (oops, sorry this one accidently came over from a completely different list)

When and if law faculties get serious about diversity, let me know.

Posted by Jeffrey Harrison at 09:02 PM | Comments (25) | TrackBack

Announcing Deanship Opening

We are seeking applicants for the position of Dean. The applicants should have some administrative experience although a prior deanship is not required. Some but not exceptional scholarly productivity is a requirement. Among the attributes that will be examined is the ability to work well with others. More specifically:
1. The dean should generally say yes to all faculty requests no matter how absurd.
2. The dean should not ask faculty to fill holes in the curriculum on a temporary basis.
3. The dean should make use of liberal summer research grants without expecting immediate – or any – results.
4. The dean should prepare massive glossy publications publicizing the scholarship of the faculty in lieu of actually requiring the production of scholarship.
5. Classes should not be scheduled on Monday or Friday or any day before 10:00 AM.
6. The deans should avoid controversy by shifting difficult issues to faculty committees, ignoring issues in hopes they will go away, or by redefining the issue
7. The dean should listen to no one except those on the faculty who he or she believes could influence the future of his or her deanship.
8. The dean should first and always think about the welfare of the faculty over that of the students.

The Search Committee is aware that there are many highly qualified decanal candidates and ask that interested applicants submit their resumes as soon as possible.

Posted by Jeffrey Harrison at 12:37 PM | Comments (0) | TrackBack

Law School Capture

My blogging schitk is grousing about legal education. I do this mainly on moneylaw and classsbias and serve as a technical advisor to privilegelaw – a blog that must be read starting earlier and moving to more recent. In many respects I think legal education has been captured by and run for the convenience of faculty who are far more often than not the children of privilege. (If you are already preparing to comment, I ask that you skip it if the comment is about a law professor who is not a child of privilege.) As I blog along this month these themes will become more developed. First, here is a test to examine your own school for its level of capture.

Before taking the test there are some clarifications. There is good and bad capture. I can imagine a law school captured by the faculty and, with or without help from the administration, run for the benefit of stakeholders. This would be faculty that is constantly asking “What should we be doing”? and matching it against what it is doing. On the other hand, capture can mean that a faculty runs the law school for its convenience with only modest limitations imposed by others and even here observing the limits are part of a pattern of self-interested behavior.

Second, from time to time I get an email that carries with it the assumption that all my grousing is about my own School. Wrong! The examples are not all taken from my School, and if you really called my bluff I would not bet that my school is any different than the average. So how does your school stack up on the capture quiz: (you can give your school partial points)

1. Are classes scheduled mid week and mid day even though it means conflicts that limit student choices? (1 point for a yes.)

2. Has you school seriously reviewed any of its foreign programs, centers, institutes or degree programs in the past two years? (1 point for a no.)

3. Does your school depend on adjuncts to teach mainline courses while offering small enrollment specialized courses taught by full time profs? (1 point for a yes)

4. Does your school have a high curve that is sometimes defended by not wanting to hurt the feelings of the students or other justifications that amount to “I do not want to actually have to evaluate someone?” (1 point for a yes)

5. Do colleagues propose programs that are needed even though they will not actually be teaching, traveling, or receiving a reduced teaching load if the program is adopted? (1 point for a no)

6. Can students graduate and take half or more of their classes on a pass/fail basis. (See question 4) (1 point for a yes)

7. Does your school encourage massive, barely supervised, externships that generate tuition dollars, provide free labor and, by the way, mean less teaching ? (1 point for a yes).

8. Does your administration mass mail glossy reports listing every conceivable thing faculty submit as reportable? (1 point for a yes).

9. Does your dean appear to be afraid to suggest that the School should do better and then hold people accountable? (1 point for a yes)

10. Is the norm that just about everyone is gone by 11 AM on Friday? (1 point for a yes)

If you scored a 10, it’s best to go into receivership and start from scratch.

If you are in the 7-9 range you will probably be a 10 soon.

If you are 4-6, I think you are average and a few hires could move you either way.

If you are 3 or less, congratulations.

Posted by Jeffrey Harrison at 04:15 PM | Comments (0)

The Trials of Law School

Here is the trailer for a new documentary...

My review comes after the fold...

Heath Morgan -- an attorney and independent film-maker in Oklahoma -- has made legal education into a documentary: "The Trials of Law School." The film follows 8 1Ls through their first semester at Oklahoma Law School. Along the way, Heath manages to interview an impressive cast of law professors, including -- in no particular order -- Liz Warren, Randy Barnett, Mark Tushnet, Elizabeth Garnett, and many many others.

Watching the film I was struck by what an unfilmable process law school is. There are a few "action" shots of students in class rooms, but the reality of law school, of course, is that most of the time is spent reading law books. Hardly the most photogenic activity. Heath benefited here from Oklahoma's building, which provided enough architectural variety to make shots of students studying a bit more visually appealing. The main reading room in the library looks quite wonderful. Still, at the end of the day most of the drama of law school (if one can use that term) takes place within the craniums of its neurotic inhabitants.

Heath, however, does a good job of capturing that drama. The students he follows are a nice mix of bright-eyed over-achievers, a relatively laid back Baylor grad one could imagine watching a football game with, and three non-traditional students: a single mother, a mother of six, and 41-year-old father of an indeterminate number of teenage daughters. Having gone through the last half of law school with a baby, I found their stories particularly poignant. At one point, the 41-one-year-old father notes that he simply cannot hope to compete with single, monomaniacal students who can let law school be their sole focus. Well do I remember that frustration.

Heath uses the impending final exam to provide the dramatic energy for his story. For me this was the least satisfying part of the film. There was no sense, for example, among Heath's students that they were discovering a new world in the law. There was no sense of intellectual excitement over what they were learning or seeing; only the impending dread of the final examination. In this, I fear that Heath may have been truer to the experience of many students. Still, there is more -- one hopes -- to law school than stress about a six-hour exam. One hopes that students are learning to love the law. If they aren't, an unhappy career caught in its clutches awaits them.

As for Heath, as a contract's prof, I await with baited breath his production of "The Ballad of Willie and Lucille," which tells the story of Peevyhouse v. Garland Coal Company. I can only assume it is based on the law review article of the same name. The thought of it gives me a new goal in life: to someday sell the movie rights to one of my articles.

Posted by Nate Oman at 11:36 AM | Comments (1) | TrackBack

Shunning Duke's Faculty

A little while back, former Judge, and law school Dean, Joseph Bellacosa (St. John's) proposed that members of the public shun the 88 Duke faculty members who sponsored an advertisement in the early days of the Nifong investigation implicitly condemning the accused lacrosse players. Bellacosa argued that

[A]lthough the group [of faculty members] can't technically be charged with crimes - though abandoning your young and endangering youth sure do come close to real definable crimes - there are ways these professors can be held accountable. The identities of the 88 professors should be posted in significant ways and places, including in the media and on the Internet, so that they may be known for what they have done.

The likely howls of protest from the tenure police, university guild apologists and free-speech absolutists notwithstanding, the professoriat should not be shielded from appropriate public condemnation for their misconduct. Their dormant consciences and sensibilities should be reawakened to the abhorrent nature of the actions they inflicted on their own students.

I am regrettably late commenting on Judge Bellacosa's article, and so this post may be stale. But still. What the heck is going on here?

Finding the original ad put up in 2006 isn't so easy. A follow-up statement by Concerned Duke Faculty member has dead links, and Duke's African-American studies department has removed the page from its server. Fortunately, this blog post pdf'd the ad, which I’ve copied to the right. Unfortunately, Bellacosa doesn’t say, and I don’t understand, exactly what was so wrong about this statement. There are some rumors that the students whose voices are being spotlighted are composites. That would be bad, but not a deadly sin. And the heart of the ad - the statement by the professors themselves - seems to me to consist of a set of vague generalities that verge on truisms, and aren't objectionable:

"Regardless of the results of the police investigation, what is apparent everyday now is the anger and fear of many students who know themselves to be objects of racism and sexism, who see illuminated in this moment’s extraordinary spotlight what they live with everyday."

Regardless, we’re supposed to shame and shun the signatories to the ad. Why?

Posted by Dave Hoffman at 11:13 AM | Comments (11) | TrackBack

Three Views of Education as an Associative Good

The Posner-Becker blog had a good discussion of education rankings 2 months ago. I was particularly struck by Posner's observations on the self-fulfilling prophecy aspect of rankings:

The effect of college ranking on the education industry is unclear, but my guess is that it is negative. . . .Given the high costs of actually evaluating colleges, employers and even the admissions committees of professional and graduate schools are likely to give weight to a school's rank, and this will give applicants an incentive to apply to the highest-ranking school that they have a chance of being admitted to (if they can afford it). The result will be to increase the school's rank, because SAT scores and other measures of the quality of admitted students are an important factor in a college's ranking. That increase in turn will attract still better applicants, which may result in a further boost in the school's rank. The result may be that a school will attract a quality of student, and attain a rank, that is disproportionate to the quality of its teaching program.

Henry Hansmann wrote an interesting piece on this phenomenon, calling education an "associative good," since, "when choosing which producer to patronize, a consumer is interested not just in the quality and price of the firm's products, but also in the personal characteristics of the firm's other customers" (emphasis added). Hansmann concludes by wondering if "the increasing technological sophistication of our society, which is fueling the trend toward stratification among the elite educational institutions, will someday produce technologies that make it less important for elite higher education to be a residential experience, and hence remove much of the associative character of higher education." Franklin Snyder offers evidence that blogging is one such technology.

But don't underestimate dominant interests' passion for rankings, cautions McKenzie Wark (whose bookpage for the source I'm quoting interestingly fails to mention it was published by Harvard University Press). He claims that "Education is organized as a prestige market, in which a few scarce qualifications provide entree to the highest paid work, and everything else arranges itself in a pyramid of prestige and price below. Scarcity infects the subject with desire for education as a thing that confers a magic ability to gain a 'salary' with which to acquire still more things." In other words, the rankings are the purest form of artificial scarcity. . . . a precious commodity in an era when the diminishing scarcity of resources that meet basic needs limits their contribution to economic growth. Wark worries that education will "split[] into a minimal system meant to teach servility to the poorest workers and a competitive system offering the brighter workers a way up the slippery slope to security and consumption."

I'll expressly disclaim endorsement of any of these three theories. I just find it interesting how the staid and sober observations of a Posner can resonate with Wark's radical theory, once we interpose the "associative goods" concept.

Posted by Frank Pasquale at 01:51 PM | Comments (0) | TrackBack

Greetings, Salutations, and Current Events Questions on Exams

Greetings, everyone, and thanks to Dan, Dave, and the rest of the Concur-ers for the invite to spend some time guesting over here (and for the warm introduction). I guess, if nothing else, my guest stint will provide some anecdotal data about just how many blog-readers read both Concurring Opinions and PrawfsBlawg, my permanent home...

Anyway, I thought I'd start with a practical question: Whether, and to what extent, folks think that is a good idea to put current-events-based questions on a final exam? Borrowing (shamelessly) from my soon-to-be-former colleague Michael Froomkin, my con law final exam included a Morrison v. Olson-based question about the Office of the Special Counsel (for details on the issue, see Michael's posts here and especially here).

Leaving aside the merits of this particular question, it strikes me that we as profs have a temptation to write current events-based questions, both because reading the news triggers our own intellectual curiosity, and because it's a way to keep the substance "fresh" from year-to-year. But are there reasons not to? I consider a couple below the fold:

Reason Not To #1: Sometimes, it's too obvious. Students read the same newspapers we do (I hope, anyway), and, if they're paying attention, find the same things interesting. And so, to whatever extent students would be left to guess as to a fictitious fact pattern, here, they can think through the answer beforehand. Moreover, even if only one or two students might prepare for it out of a class of 110, that's almost more unfair, for it skews the exam toward those more on top of current events.

Reason Not To #2: Sometimes, it's harder to grade. The example I used this semester might help; as Michael notes, it's a very close call, at least under extant doctrine, whether there might be a Morrison problem with the Special Counsel statute. If the fact pattern is more deliberately engineered, it might allow students to come to a more definitive answer...

I'm sure there are others, too. There are also fairly obvious reasons, I think, why using current events can be a good idea... First, it helps tie ideas that are somewhat abstract to real-life current events. Second, it helps generate ideas in the first place. Third, in some cases, it may even help us better understand the issues to read a whole bunch of student papers with different answers.

But ultimately, I think I'm on the fence. What do others think?

Posted by Steve Vladeck at 10:25 PM | Comments (13) | TrackBack

Fiduciary Duty and Financial Aid

The financial aid scandal, sparked by NY Attorney General Andrew Cuomo's investigation (and possibly a shut-out competitor) has already led to some settlements with lenders and universities. The basic thrust of Cuomo’s investigation is that if lenders pay administrators referral fees (whether direct or indirect) to steer students to take certain loans, that conduct is a deceptive trade practice, "in violation of New York Executive Law ' 63(12) and General Business Law 349 and 350 and other relevant state law."

Universities are falling over themselves to settle with NY, as is the lending industry, in light of some bad facts: the companies have sought to influence financial aid administrators with stock, Broadway tickets, and other goodies. So this question is, literally, academic: is the alleged conduct by the university employees a violation of a fiduciary duty (loyalty) owed to students?

I’m going to assume that such agency questions are not preempted by federal law. The first, and probably dispositive question, is whether financial aid administrators are agents of students for the purposes of filling in loan applications. It is at first glance a hard fit. But in my corporation's casebook, I teach agency through Basile v. H&R Block, 761 A.2d. 1115 (Pa. 2000). In Basile, a tax preparation firm took a kickback from Mellon Bank for arranging that customers seeking an advancement on their tax refunds use the bank. The question in the case (after federal TILA claims fell away) was whether H&R Block was the agent of Basile. If it was, then (obvious) Block violated its duty of loyalty by not disclosing the referral and profit-sharing relationship.

The Court found (contrary to others on similar facts) that there was no agency relationship:

"[T]here is no showing that appellees intended Block to act on their behalf in securing the [refund loan]. To the contrary, Block offered appellees the opportunity to file their tax returns electronically with three options [electronic filing for a fee, electronic filing for a fee with direct deposit of the refund; electronic filing for a fee with a loan], only one of which involved a [loan.] It was appellees alone who decided to take advantage of [the loan . . . Block simply facilitated the loan process . . . Simply introducing appellees to a lender willing to provide a loan is not sufficient to create an agency relationship . . . If Block's method of doing business is worthy of the condemnation that appellees suggest, presumably the marketplace will react to correct it. IT is not our place to imbue the relationship between Block and appellees with heightened legal qualities that the parties did not agree upon."

Block is wrongly decided. The proper inquiry is the principal’s control over the agent with respect to the activity in question, and the agent’s consent to the relationship. Block sold itself as trustworthy, and filled out the tax forms for customers under their supervision, giving rise to an expectation that it would act in the customer’s interest.

The financial aid fact pattern is clearly distinguishable. As I understand it, at most schools students fill out and submit forms themselves (albeit with counseling). Schools provide a list of recommended lenders, but that list is not exclusive, and students are not penalized by the school for going “off-list.” On the other hand, like Block, students probably have reasonable expectations that colleges are acting in their interests, and like Block, are in a position of vulnerability, and are badly positioned to evaluate the free market options available to them. The issue might turn on whether the colleges complete and submit forms for the students under the student's supervision - we certainly need some kind of manifestation of assent by the purported agent to be bound to the relationship.

To the extent that universites are students' agents, which I think unlikely, nondisclosed referral fees and gifts would almost certainly be disloyal. What would be the remedy? As against the agents, disgorgement certainly. But could students sue universities for the difference between what they expected (the best loan available) and what the got (the loan on the list)? This seems to me to create some pretty difficult proof issues - loans are desirable for reasons other than interest rates - and would likely make it hard to certify a borrower class.

In the end, I don’t know how this kind of claim would work out. What do you think?

Posted by Dave Hoffman at 10:01 AM | Comments (5) | TrackBack

Politics and Alumni at Dartmouth

Today's Boston Globe carried an interesting story about an upcoming board of trustees election at Dartmouth College. According to the story, the upcoming election has become a heated battle over direction of the university. On one side is the alumni council, which nominates candidates for open seats on the board. On the other is a group of alumni dissatisfied with the university's direction, a group that is apparently willing to spend tens of thousands of dollars to nominate and elect their own candidates to the board.

This year's independent candidate, Professor Stephen Smith of U. Virginia Law School, says he is running to support smaller classes and stronger athletic teams. One of his opponents, San Diego Padres executive Sandy Alderson (an attorney himself as well as a former Marine sergeant), claims that Smith is the hand-picked candidate of "a well-funded, disciplined political organization" with a conservative political agenda. Alderson claims that he was interviewed by two other independent trustees with conservative ties who concluded that they couldn't support him. Smith, for his part, asks ""What is conservative about class size or athletics?" while acknowledging that alumni donations have funded the $60,000 he has spent on mailings for his campaign.

The story closes with a quote from Peter Robinson, one of the independently elected Dartmouth trustees. Addressing all colleges and universities, he says, ""The alumni are coming. But they won't sack your institutions, just reconnect them with American life."

Posted by Alfred Yen at 11:27 AM | Comments (0) | TrackBack

Students sue Turnitin

I saw on a listserv that two high school students have sued Turnitin, a service that identifies plagiarism, for copyright infringement. The apparent basis for the suit is that Turnitin archives papers it reviews for purposes of comparison against future papers. The Washington Post story about this suit contains opinions suggesting that the plaintiffs (who seek $150,000 in damages) have a good case.

While Turnitin does appear to violate the copyright holders' right of reproduction, I think fair use clearly applies. Even if one considers the use commercial (couldn't one also characterize the use as for purposes of criticism?), there is, in my opinion, no way that the use affects the marketplace for the copyrighted work. Turnitin's archiving results in no distribution of the works. There is simply no way that this use injures any of the financial incentives associatd with copyright. What person writes a paper thinking "Hmmmm. Maybe one day I'll get royalties when my paper gets submitted to Turnitin."? This case reminds me of the one against Google Print, but I think it's a lot weaker.

Posted by Alfred Yen at 01:19 PM | Comments (4) | TrackBack

March Madness

Mike Jarvis, former men's basketball coach at Boston University, St. John's, and George Washington, writes in his Yahoo! column about the academic costs of division 1 basketball, particularly at tournament time. He recounts his GW team's run in the NCAA tournament and the classes his players had to miss, along with the assistance provided by the univerisity (tutors, advisers, and administrators) to ameliorate the problem. He candidly admits that these measures were not full compensation for missed class time. He suggests having internet connections to live classes and class archives as solutions to the problem. He then laments that measures like this will not be taken because of money: "The rationale usually given is that it will cost too much, and if we do it for the men, then we have to do it for the women. What a great idea. Why not do it for both?"

I hope that colleges would take steps like this. It doesn't seem that hard or costly. It would be really bad if colleges wouldn't do it because they don't want to do it for women, too.

That having been said, Jarvis points to money as the problem in the wrong way. The problem isn't the cost of helping athletes keep up with their classes. The problem is the desire of the NCAA and its member institutions to earn money from weekday TV broadcasts. According to cnn.com, CBS pays about $545 million per year to televise the NCAA tournament games. That's serious money, enough to pull some excellent academic institutions into athletic schedules that not only take athletes away from class, but also make it effectively impossible to study certain subjects (particularly lab science classes).

Real remedies for this problem go way beyond the Internet solution proposed by Jarvis. It would be naive to think that the NCAA and its members will give up this cash flow anytime soon, so athletes will continue to miss classes and find it impossible to take others. College athletes therefore ought to get extra guaranteed years of scholarship assistance (including room and board) after eligibility expires so they can take classes that were impossible during their playing years. Alternatively, they could receive money that could be spent on tuition (or something else - maybe grad school?) after their playing days. Sports Illustrated proposed an athletes' bill of rights in a recent story on college sports (particularly Ohio State).

I'm not optimistic that reforms like this will happen soon. For all the good that they do, the NCAA and its member institutions seem bent on growing the commercial enterprise of college sports. As self-professed educators first, they ought to do more to ensure the academic success of the talent that makes all that money possible.

Posted by Alfred Yen at 07:02 AM | Comments (4) | TrackBack

A One Sport Only Rule

A story that has stuck in my mind is the recent misfortune of a swimmer/hockey player at Latin Academy in Boston. According to the Boston Globe, the freshman athlete competed in both swimming and hocky, thereby violating a Massachusetts Interscholastic Athletic Association rule restricting students to one sport per season. The penalty is loss of eligibility for the season and forfeiture of all games in which the athlete played. Latin Academy and the athlete appear to have suffered those penalties.

I am not ordinarily someone who thinks that penalties against athletes are too light. Star athletes get a lot of preferential treatment in our society. But this one struck me as quite a pity. The young woman in question is a freshman and had no idea she was violating a rule. Her school missed it.

According to an MIAA spokesperson, the rule exists to protect athletes from injury and to "allow adequate time for academics." Fair enough. However, if the MIAA were really concerned about sports taking up too much time, they'd have rules about how many hours a week students can spend in practice for a single sport. Or, perhaps Massachusetts should have a limit on time spent for ANY extracurricular school related activity. They presumably don't stop children from playing in both the school musical and a sports team, and the hours spent could be comparable. And, of course, if the student had been a figure skater, she could easily have spent more hours doing that while playing hockey. Indeed, if she competes for a swim club, she would spend the same amount of time training even though she didn't swim for her school team.

The partial disconnect between the rule and its stated purpose makes me wonder if there aren't other reasons for the rule that better justify it. For example, the limitation of one sport per season preserves roster spots for other students to participate.

In the end, I don't know if I really think the outcome here was a gross miscarriage of justice, but I do think the young woman and her school suffered a pretty harsh penalty for violating a rule that seems not to serve its stated purpose too well. Quick perusal of the MIAA rules indicates that the suffered penalties are roughly the same (ineligibility and forfeiture of games) as if she had taken money to compete. Anyway, it seems to me that rethinking of this rule and/or its penalties is warranted.

Posted by Alfred Yen at 08:42 AM | Comments (4) | TrackBack

Close the Education Gap with Advertising?

What if a technology company like Microsoft supplied a school with computers students could use for free? Self-interested, maybe, but certainly there could be a convergence of interests there. Well, what if the company then required that the computers not run any alternative software? A little less nice, but in a country where income, education, and opportunity are closely intertwined, poor schools would have to think seriously about turning down such an offer. Well, what if the company then implemented a technology that required students to watch enough advertising to justify the use of computers and repossessed the computers if students didn't watch enough ads? I'm not dismissing this model as, on net, bad for students -- I'd want to see some data on that. But I find the mixture of commercial interest and education more than a little disturbing.

(FYI, I first read about the Microsoft patent on Slashdot.)

Posted by Donald Braman at 10:15 AM | Comments (2) | TrackBack

Shechem and Consideration

I have been thinking about the value of the Bible as a pedagogical tool. I am not much of a fan of the notion that the common law somehow rests on the Judeo-Christian tradition or that the Ten Commandments are the basis of our modern legal system. To be sure, I do think that the Bible has had its influence on our law, but if one is seeking for origins of the common law, I think that feuding norms among the pagan barbarians of northern Europe is a better bet. Still, the Bible is full of law, and I think that this law is useful for its very strangeness. (Also, as a Mormon, I labor under some religious guilt due to the fact that Brigham Young and other early Mormon authorities taught repeatedly that lawyers were the spawn of Satan and essentially on the road to hell. I take comfort in the fact that God is clearly a lawyer.)

For example, a few days ago I gave a brief lecture on the history of contract to my students. One of the points I wanted to make is that contract law is a relatively late development. Early legal systems seem to go to work immediately on issues like ownership of land, inheritance, and crime. Contract comes only later. I illustrated the point by noting that there is an enormous amount of law in the Pentateuch governing everything from ritual purity to what oxen may or may not eat while plowing the fields. There is not much in there, however, on contracts. To be sure there are rules about debt, and covenant, which is a vaguely contract-y idea, figures prominently in Biblical stories. Still, you'll search Exodus to Deuteronomy in vain for anything like a general theory of contract.

Here is another possible example: Understanding the usefulness of consideration as a formality can be tricky. Fuller argued that forms serve an evidentiary function, but what exactly do we mean by an evidentiary function? Consider the following story from the Book of Joshua. At the end of his life, Joshua gathers the Children of Israel together at Shechem and offers them a choice: Will they promise to serve the God of Israel or not? The Children of Israel insist that they want to covenant to follow Yahweh, and Joshua then leads them through various formalities to make the commitment binding. The text says:

So Joshua made a covenant with the people that day, and made statutes and ordinances for them at Shechem. . . . And he took a great stone, and set it up there under the oak in the sanctuary of the Lord. And Joshua said to all the people, "Behold, this stone shall be a witness against us; for it has heard all the words of the Lord which he spoke to us; therefore it shall be a witness against you, lest you deal falsely with your God." (Joshua 24:25-27 (RSV))

Why the rock? It is a formality that Joshua goes through to make the promise binding, and its purpose is to provide future evidence of the covenant. Should any Israelite in the future try to serve other gods, then Yahweh can insist that he or she has promised to serve only him. Should the erring Israelite have a convenient lapse of memory, then God can point to the rock. "Look," he can say, "that rock stands there under the oak tree because you made the promise at Shechem with Joshua." The formality reduces the problem of proving the contract ex post.

I love this story because of its strangeness. (I always imagine Dell and Microsoft entering into a licensing agreement and setting up a sacred rock someplace in Seattle to memorialize the deal.) Furthermore, it is precisely the strangeness of the story that makes it useful for thinking about the law. Our problem is that we forget how weird our own laws are and therefore can have a hard time seeing clearly what they are doing. In this sense, the Bible is pedagogically useful precisely because it has lost most of its salience in our culture. Most students (even in southern Virginia) are unlike to have the story of the Shechem Covenant at their fingertips. It sounds wierd to them, and that is useful.

Or it may simply be my perverse love of legal anachronism.

Posted by Nate Oman at 01:17 PM | Comments (6) | TrackBack

Short Course on Some Origins of Inequality

Recently my law school's clinic "filed a class action lawsuit in federal court on behalf of all parents of children attending Newark Public Schools who are being denied their rights under the No Child Left Behind Act." BlackProf regular Shavar Jeffries is lead counsel for the plaintiffs, who charge that the "Newark Public Schools district has systematically failed to meet even the Act’s minimum notification requirements."

In honor of that effort, I'm highlighting a fascinating article from the NYT Magazine by Paul Tough on the challenges facing the No Child Left Behind (NCLB) effort. The article notes that NCLB aims to erase a persistent achievement gap between African American and white, and lower and middle/upper class, students (by 2014). It summarizes two bodies of literature on the subject:

The first is about causes; the second is about cures. The first has been taking place in academia, among economists and anthropologists and sociologists who are trying to figure out exactly where the gap comes from, why it exists and why it persists. The second is happening among and around a loose coalition of schools, all of them quite new, all established with the goal of wiping out the achievement gap altogether.

The "causes" literature is fascinating. I've heard about studies like Lareau's Unequal Childhoods for some time, but the quantifications provided in the article are compelling:

By age 3, the average child of a professional heard about 500,000 encouragements and 80,000 discouragements. For the welfare children, the situation was reversed: they heard, on average, about 75,000 encouragements and 200,000 discouragements. Hart and Risley found that as the number of words a child heard increased, the complexity of that language increased as well. As conversation moved beyond simple instructions, it blossomed into discussions of the past and future, of feelings, of abstractions, of the way one thing causes another — all of which stimulated intellectual development.

I've heard similar explanations of a new gender gap in academics; social critics claim that boys too often succumb to a "dude culture that demeans academic achievement" and discourages expression of ideas.

So what are the solutions? They involve massive effort, and will test whether NCLB is mere opportunistic "symbolic politics" or a real effort to address inequality.

Tough (the NYT reporter) draws three lessons from successful charter schools:

The schools that are achieving the most impressive results with poor and minority students tend to follow three practices. First, they require many more hours of class time than a typical public school. . . . .Second, they treat classroom instruction and lesson planning as much as a science as an art. Explicit goals are set for each year, month and day of each class, and principals have considerable authority to redirect and even remove teachers who aren’t meeting those goals. . . . . Third, they make a conscious effort to guide the behavior, and even the values, of their students by teaching what they call character. Using slogans, motivational posters, incentives, encouragements and punishments, the schools direct students in everything from the principles of teamwork and the importance of an optimistic outlook to the nuts and bolts of how to sit in class, where to direct their eyes when a teacher is talking and even how to nod appropriately.

These all sound like reasonable steps to me, but very difficult to implement. A key question then arises: is the charter school form the only one that can implement them? Or can they be integrated into a public school framework? Jeffries raises doubts about the latter possibility. My own sense is that, whatever the institutional home of successful interventions, I hope that society more properly rewards and recognizes the committed teachers who are making a difference here. One of my cousins taught in a religiously-affiliated school in Watts, where part of her sacrifice entailed not having health insurance--and after a car accident she was stuck in an overcrowded ER in County Hospital for 14 hours before receiving care. Perhaps the Bush Administration should signal a commitment to charter schools by guaran