Archive for the ‘Education’ Category

More on the Student Data Grab

posted by Daniel Solove

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.

  December 30, 2011 at 9:19 pm   Posted in: Education, Privacy   Print This Post   No Comments

The Student Data Grab

posted by Daniel Solove

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.

  December 29, 2011 at 9:26 pm   Posted in: Education, Privacy   Print This Post   No Comments

Student Privacy in Peril

posted by Daniel Solove

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.

 

  December 19, 2011 at 3:38 pm   Posted in: Education, Privacy   Print This Post   No Comments

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

posted by Kyle Graham

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.”

  December 3, 2011 at 1:34 pm   Posted in: Education, Humor, Just for Fun, Law Talk, Teaching   Print This Post   12 Comments

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

posted by Jeffrey Kahn

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.

  November 20, 2011 at 8:55 pm   Posted in: Education, Law Practice, Law School (Scholarship), Law School (Teaching), Uncategorized   Print This Post   7 Comments

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

posted by Deven Desai

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:

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  November 3, 2011 at 8:06 pm   Posted in: Education, Innovation, Political Economy   Print This Post   3 Comments

Suggested Reading (for Law Students and Profs): Open Book: Succeeding on Exams from the First Day of Law School

posted by Danielle Citron

Barry Friedman and John C.P. Goldberg have a new book out on how to take law school exams called Open Book:  Succeeding on Exams from the First Day of Law School.  It is something different and really worth recommending.  Here are a few reasons why I would love my students to read the book and its online content.  First, the book imparts fabulous advice on why law profs give exams and how those exams directly connect to law practice and the whole law school endeavor.  Second, the website has so many practice exams (in all of the core areas) with marked up answers that explain the reasons behind the prof’s thinking and evaluation of the answers.  This is an incredible help: students learn what worked on the exam and why.  Third, the joy that the authors take from teaching and the practice of law leaps off the page — it’s so clear how wonderful they are as teachers and mentors.  Their enthusiasm and respect for what lawyers do is obvious and inspiring.  The pedagogy will appeal to law professors, and it is an entertaining read, nicely illustrated.  The website is full of useful content (those practice exams and feedback I talked about).  (Profs: to check it out, you need an access code to get to the premium content but can easily get one by writing them from the author contact page.)

Here’s the back-of-book blurb:

Open Book is the ultimate insider’s guide to succeeding on law school exams. The authors draw on decades of classroom teaching and student counseling to create a concise, lively book that imparts a method of law school exam-taking that maximizes your chances of success—and helps prepare you for the world of practice. Their Web site (www.openbooklaw.com) gives you access to valuable exam-related resources.

 

  September 14, 2011 at 12:33 pm   Posted in: Book Reviews, Education, Law Practice, Teaching   Print This Post   No Comments

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

posted by Ari Waldman

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?

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  July 31, 2011 at 9:25 pm   Posted in: Education, First Amendment, LGBT   Print This Post   One Comment

Off-Campus Cyberbullying and the First Amendment

posted by Daniel Solove

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.”

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  July 28, 2011 at 1:03 am   Posted in: Education, First Amendment, Privacy, Privacy (Gossip & Shaming)   Print This Post   No Comments

Some Thoughts on The FAIR Education Act

posted by Ari Waldman

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.

  July 13, 2011 at 12:40 pm   Posted in: Education, LGBT   Print This Post   7 Comments

Universities and the So-Called Customer

posted by Thomas Crocker

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.

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  May 21, 2011 at 9:11 am   Posted in: Education   Print This Post   5 Comments

Law Schools and the Curve

posted by Solangel Maldonado

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.”

  May 4, 2011 at 9:59 pm   Posted in: Education, Law School   Print This Post   8 Comments

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

posted by Taunya Banks

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.

  April 27, 2011 at 8:14 pm  Tags: academia, Education  Posted in: Education, Uncategorized   Print This Post   2 Comments

Digital Law Books: II

posted by Lawrence Cunningham

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.

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  April 5, 2011 at 1:17 pm   Posted in: Contract Law & Beyond, Education, Law School (Scholarship), Law School (Teaching), Law Student Discussions, Law Talk, Teaching   Print This Post   No Comments

Key Performance Indicators: Power as Knowledge

posted by Frank Pasquale

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:
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  March 4, 2011 at 5:27 pm   Posted in: Civil Rights, Culture, Education, Law and Humanities, Philosophy of Social Science   Print This Post   One Comment

Rights and Responsibilities of Digital Citizenship

posted by Danielle Citron

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. Read the rest of this post »

  November 28, 2010 at 10:53 am   Posted in: Culture, Cyber Civil Rights, Cyberlaw, Education, Google & Search Engines, Politics, Social Network Websites, Technology, Web 2.0   Print This Post   3 Comments

College Preparedness, Law, and the Structure of Standards

posted by Craig Livermore

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.

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  November 11, 2010 at 2:32 pm  Tags: College Preparedness, Education, Education Law, Education Policy, Higher Education, Minorities and Education, Obama administration, Policy, Race and Education  Posted in: Civil Rights, Culture, Current Events, Education, Law and Humanities, Law and Inequality, Race, Uncategorized   Print This Post   No Comments

Higher Education Accreditation and Brain Drain

posted by Alan Chen

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

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  November 9, 2010 at 1:47 am   Posted in: Education, Law School, Uncategorized   Print This Post   2 Comments

Law, Education, and Hard-Driving Reform

posted by Craig Livermore

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.

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  November 1, 2010 at 1:38 pm  Tags: Education, law and education, Reform  Posted in: Education, Jurisprudence, Politics, Uncategorized   Print This Post   3 Comments

Online Learning and Bias

posted by Lawrence Cunningham

The New York Times ran stories today and one month ago sparked by the billionaire Bill Gates’ campaign to transform college teaching from the traditional classroom model to an on-line system.   The two stories mention empirical research about the value of online training compared to traditional classroom teaching.  

Today’s article cites research showing that students taking a basic college course partly online did better on tests and in later recall than students taking it entirely in the traditional classroom way.  Omitted in today’s article is the research referenced in the story a month ago showing that those results may hold up for some groups of students, but not all.  Doing worse online than in the traditional classroom setting were Hispanics, males, and “low achievers” (those with lower grade point averages).   

I’m concerned that today’s omission makes the story misleading.  True, the two referenced studies differed a bit.  The one reported last month compared pure traditional classroom teaching with pure online teaching; the one reported today compared pure traditional teaching to a hybrid format combining online and classroom components.  Still, today’s piece made it sound as if there’s no doubt that the hybrid model is clearly superior to the classroom model for all students.  But it doesn’t appear that the research makes that clear. 

In today’s paper, there was plenty of space to add a qualifier.  As it stood, the piece contained several paragraphs taken from the public relations materials that Mr. Gates and his backers have developed to promote this vogue in education.  A few column inches were allocated to a photograph of Mr. Gates.  IMHO, it would have been better to mention the qualifications and ask proponents of online college teaching to comment on how such qualifications affect their vision.

Below are block quotes from the two NYT stories for contrast. Read the rest of this post »

  October 11, 2010 at 10:23 am   Posted in: Education   Print This Post   One Comment

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