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From the Blogs

The information on this site does not constitute legal advice and is for educational purposes only. If you have a dispute or legal problem, please consult an attorney licensed to practice law in your state. Additionally, the information and views presented on this blog are solely the responsibility of Justin Bathon personally, or the other contributors, personally, and do not represent the views of the University of Kentucky or the institutional employer of any of the contributing editors.


Thoughts on Compulsory Attendance Laws

I recently read about Commerce City, Colorado mulling over the possibility of enacting a daytime curfew, from the hours of 9 am to 2:30 pm. Teenagers on the streets during this daytime curfew would be transported to their schools and levied a $499 fine. The city’s police chief and the two superintendents of the school districts serving Commerce City all support this proposal. One superintendent stated, “We know if we get them in our building, we can reach them, but we can’t do anything when they’re standing behind 7-eleven.”


I will contrast that effort in Commerce City with a view articulated by a colleague of mine when I taught at a high school in Utah. He desired to place a sign above the high school’s main entrance that read, “Only enter if you want to learn.” He felt a frustration with having to teach some students that had no interest in learning. His educational utopian was to work exclusively with students that wanted to take advantage of all that the high school had to offer. What about those who did not want to learn? He did not want to concern himself with these students.


Obviously, there are quite a few flaws in limiting access to education to those who want to learn – not the least of which is that such a policy would only serve to widen the opportunity gap between students. However, just forcing students to attend schools seems antiquated. So, what is the answer?


I believe that all students, regardless of background or ability, have an innate thirst for knowledge. All schools need to do is tap into that thirst and students will want to come to school each day (assuming the learning environment is safe – a plug for the video on bullying that was posted earlier on this site). However, to tap into that innate thirst requires resources. If I am at-risk of ending up behind 7-eleven then “business as usual,” or traditional public education with 30 students in one class listening to a teacher lecture, is going to fail to tap into my thirst.


Education must be allowed to become more attentive to the individual needs of each student if society desires all students to fully realize their potential. Specifically, a more individualized system of education would have to be defined by local education agencies. Just imagine a system where educators can identify the particulars of every student and each student has a genuine advocate. In addition, instruction is tailored to the needs and interests of each student. In such a system students would want to come every day not because of a law, but because adults cared about them and the learning was meaningful.


Such a system takes a significant infusion of resources and, given the political climate nationally, seems unlikely. It is significantly less expensive to just force students to attend school, albeit ineffective. I will end this entry with a quote from Richard Rothstein. In his book Class and Schools, Rothstein (2004) proposed widespread social changes to address the achievement gap. He then quantified the social changes at $156 billion, and recognized that it is politically unlikely that such changes will occur due to political apathy. He then offered the following explanation related to this price tag, which I feel applies to the idea of creating a more individualized system of education, “to say that this spending is not politically realistic is not the same as to say that it is unaffordable. An average annual spending increase of $156 billion is only about two-thirds of the average annual cost of federal tax cuts enacted since 2001” (p. 145).


Big Brother, Big Responsibility: Faculty Emails, Open-Records Acts & FERPA Compliance

Utilizing an open-records request to uncover faculty emails, records, and other personal and professional documents is something of a controversial topic and, increasingly, a cause for debate. Earlier this year, contributing editor to The EdJurists, Dr. Neal Hutchens, et al., published an article [1] in the Chronicle of Higher Education discussing a few such cases—including a request lodged by a political advocacy group to access a law professor’s documents after the latter authored a political opinion piece [2] criticizing the state’s governor. Dr. Hutchens and his co-authors underscore an important consideration in the dialogue about public access to faculty documents. The prevailing issue with these requests isn’t the important interests of transparency and accountability that state open-records acts demand; rather, the problem is that these requests are often used to suppress debate, and even harass faculty. However, state legislatures have begun --and may continue--to remove unfinished research, [3] or other certain types of faculty communication unrelated to government functions from the scope of disclosure under state open-records laws. [4] Dr. Hutchens and his co-authors also wisely suggest that courts and institutions should balance between the interests of disclosure and academic freedom. However, instead of spilling more ink on what Dr. Hutchens, et al., have ably discussed, I would like to briefly investigate another quadrant of the “access to information” map.

My last post dealt with the proliferation of student data collection, [5] which seems to be experiencing something of an upswing amidst privacy concerns. [6] The topic of student data privacy concerns is not far afield from, and in fact inextricably linked to, faculty privacy concerns. This is because open-records requests for faculty emails and other records or communications not only impact academic freedoms; they may have a chilling effect on day-to-day faculty responsibilities. Sometimes, between faculty, there are justified reasons for sharing identifiable student data, or other critical student information, particularly to serve a legitimate educational interest or even to address a health or safety emergency. Generally speaking, a faculty member’s email records at a public postsecondary institution may not be exempt from an open-records request. Furthermore, it may be difficult or impossible to search, cull out, and redact emails containing potentially private student data in the open-records request window. This means any resident of the state (including the press, a political organization, or a student's parent) could gain access to faculty emails with sensitive information. Assuming, arguendo, that this situation occurred, it risks disclosing protected information to someone who presumably has no legitimate educational interest in it, and would directly violate FERPA. [7] While most states’ open-records laws would shield faculty email correspondence in such an instance, as a practical matter, this example illustrates the need for expanded exemptions to open-records laws in the interest of student--and faculty--privacy. Ultimately, this issue is more than just a student or faculty issue; it is a systemic issue that, sooner or later, all educational institutions (and state legislatures) must address.

[1] Neal H. Hutchens, Jeffery C. Sun, Karen Miksch, Open-Records Requests and Academic Freedom, Chronicle of Higher Educ. (Jan. 10, 2014), available at While this trend seems to have increased in recent years, as Dr. Hutchens and his co-authors note, the “weaponization” of open-records laws to harass a speaker or impair an organization’s work was earlier catalogued in a 2006 Journal or Higher Education article. See Michael K. McLendon, James C. Hearn, Mandated Openness in Public Higher Education: A Field Study of State Sunshine Laws and Institutional Governance, 77 J. of Higher Educ. 645 (2006). For a discussion of the response one university faculty has made addressing the problems Dr. Hutchens’ article discusses, see Colleen Flaherty, Protecting Faculty Records, Inside Higher Ed (Jan. 14, 2014), available at

[2] Gene Nichol, McCrory’s Stands Strain His Ties, News & Observer (Oct. 14, 2013), available at To be fair to the Civitas Institute, Mr. Nichol’s criticism verged on the ad hominem--not a great look for a former university president. Id.

[3] See, e.g., N.J. Rev. Stat. Ann. § 47:1A-1.1 (2014); Ohio Rev. Code Ann. § 149.43(A)(5) (2014).

[4] See, e.g., Ga. Code Ann. § 50:18-72 (35) (2014).

[5] CJ Ryan, Private Eyes: FERPA and Student Data Security Breaches, The Edjurists (Apr. 2, 2014 at 8:50 pm), available at

[6] See, e.g., Benjamin Herold, Danger Posed by Student-Data Breaches Prompts Action, Educ. Week (Jan. 22, 2014), available at Even critics of the No Child Left Behind Act, Pub. L. No. 107-110, 115 Stat. 1425 (2002), acknowledge that the act promoted a salutatory leap in data collection--generally thought to be a good thing. However, the rate at which data collection has increased since the passage of the act, and more importantly, the kind of data collected, has caused alarm in recent months, particularly among opponents of the Common Core. Perhaps concerns like these prompted a modest response from the U.S. Department of Education on responsible collection of student data through online educational vehicles. U.S. Dept. of Educ., Protecting Student Privacy While Using Online Educational Services: Requirements and Best Practices, Feb. 2014, available at

[7] 20 U.S.C. 1232g(b). As a result of this federal statute’s requirements, some public postsecondary institutions explicitly discourage or altogether disallow their faculty and staff members’ posting protected student information in email correspondence, but as the statue does, carve out an exception for records kept in the sole possession of the record’s creator. Compare Office of the Registrar, Preserving Student Privacy, Univ. of Cal. Davis, available at (containing in pertinent part: “Students have a right to access most information in the records that the University maintains about them, including e-mail messages between faculty or staff that refer or relate to them. Knowing that a student might read your e-mail message later, keep your e-mail messages focused on facts and try to avoid communicating subjective judgments.”) with Univ. Registrar, FERPA Guidelines for Faculty, Staff, and Students, Univ. of La. Monroe 5, available at (strictly prohibiting: “[t]he transmission of grades electronically (e-mail) to any party, including the respective student . . . even at the student’s verbal or written request. Such transmissions could result in a privacy violation because they may not be secure and could be retrieved by an unauthorized party.”).


Education Law: A Year in Review Policy Institute

The Education Law & Policy Institute at Loyola University School of Law is holding an event entitled “Education Law:  A Year in Review” on June 25, 2014 from 1-5 p.m. The seminar will address important developments in the area of education law during the past year. Topics to be addressed include recent federal guidance on school discipline, bullying, and sexual violence; best practices in special education due process hearings; and other hot topics in the area of education law. CLE credit is available, and a reception will follow the program. For the full program and to register, click here.


Martha McCarthy Education Law & Policy Summer Institute

Looking for some Education Law Training this summer? 

June 12, 2014
9 a.m. to 5 p.m.

The Institute program will include several national speakers discussing current developments in school law including special education, bullying and harassment, and teacher evaluation.

For more information, check out the website at


Securing Freedom through Civic Education

I recently heard Dr. Os Guinness speak about the importance of the U.S. Constitution and the American experiment with freedom. Dr. Guinness argues that the U.S. is facing a gathering crisis of freedom and that we must act to protect our freedom.

Although we as Americans celebrate the freedom that we won in 1776, that was really just the first step in our great experiment. Next our founding fathers ordered freedom by setting its parameters in the Constitution. The framers of the Constitution placed much importance on gaining freedoms as on keeping them. They wanted a free republic that would last forever. Now maintaining freedom is our most important task as a nation. 

Dr. Guiness describes the paradox of freedom--that freedom is its own worst enemy. Freedom can be undermined in times of prosperity because people stray from the principles that tie us together as a nation and protect freedom. Freedom can also be damaged by actions that are desgined to protect us such as terrorism survelliance. 

It is returning to the first principles that is the most important step in maintaining freedom, according to Dr. Guiness. He describes a Golden Triangle of Freedom involving freedom, virtue and faith where freedom depends on virtue, virtue requires faith of some sort, and faith depends upon freedom to survive. Sustainable freedom depends upon the charater of the rulers and trust between rules and citizens. Only a virtuous people are capable of freedom. 

Although key to the survival of our democracy, since the 1960s, civic education has disappeared from our schools. Reintroducing civic education would return our nation to a common understanding of our the first principles or virtues upon which our nation was built and protect our freedom, particularly our freedom of conscience. He describes it like the bedding in which the Constitution sits. If the bedding is corrupted, the Constitution will fail. This would allow for a re-opening of the public square where every American would be able to speak their mind based on their own values, including religious values. 

He concluded that we need a renewal of faith and an end to culture warring.  The next chapter is crucial. Just like a novel, the hardest part of a revolution to write is the ending.  The chapter that the next generation writes will be critical for sustaining the USA.

Although I haven't read his books, as a supporter of civic education, I thought Dr. Guiness's arguments were important. I think civic education is something that we as Americans can all agree to support.

Having studied Establishment Clause jurisprudence, though, I understand why church and state are separate in the U.S. in the sense that laws cannot promote or inhibit religion, particularly in public schools. Yet as currently practiced it creates a conundrum where thousands of Americans feel excluded from the public square because their views are based on their closely held religious beliefs and these views cannot be used as the official basis for new laws. Instead, Americans who are driven by religious convictions to pursue worthy causes that better society as a whole must explain them in secular ways in order to be heard and taken seriously. Dr. Guiness argues that this exclusion is more serious than just a feeling of exclusion; instead it threatens to undermine the foundation of Constitution itself because it is these principles that undergird our original freedoms. I think what he envisions is an American society that would more readily welcome relgious views into the public sphere while still maintaining the formal separation, so that the laws themselves would not promote or discourage religion but that individual citizens are able to openly discuss their views in religious terms if they want to but then lawmakers decide to pursue or not based on the needs of the society. This reintroduction of civic education and a welcoming of religious voices into the public square would return the concepts of virtue and first principles back into the national conversation.


The Need for a Test to Help Courts Make Sense of Off-campus Student Speech

I have recently begun preparing for a paper I will co-author and present with Dr. Amy Dagley at Education Law Association's annual conference in San Diego where we examine trends in adjudicated free speech lawsuits involving off-campus communication resulting in on-campus discipline. This preparation included reading Benjamin L. Ellison’s opinion published in 2010 (85 Notre Dame L. Rev. 809). What struck me in Ellison’s piece was the following statement, “A test is needed to mark the boundaries of free speech protection from school discipline over speech that originates off campus.”


Ellison reviewed what other scholars have written on the subject of a test and then offered his own ideas. I would like to summarize the tests Ellison included in his opinion:


Tuneski advocated for an intent-focused test that would permit on-campus discipline if the student’s off-campus communication was directed toward the school, students at school, or school officials. The obvious challenge with this test is proving intent.


Adamovich argued that the standard for government employee speech should be applied to students’ off-campus communications. Specifically, Adamovich identified four points in determining if a student can be punished for off-campus communication: 1) intent, 2) “the number of listeners, 3) the nexus between the student speech and school operations; 4) the level of disruption” caused by the speech. Brenton and Servance also argued for nexus-based tests.


Pike differentiates between active and passive student communication. Active communications include email, text messaging, tweets, and phone calls. Passive communications are web pages, blogs, and social networking profiles. Ultimately, Pike argued that school officials should only be able to limit active forms of student off-campus communication.


Finally, Ellison offered a test that focused on pure intent and location. By pure intent, Ellison suggested that if school officials can prove that the student told others about the off-campus communication or showed others at school a website then intent has been established.  This definition of off-campus speech could be applied to all types of communication – electronic, print, etc.  With location, Ellison suggested that once school officials establish intent then the location transfers from off-campus to on-campus.


With that superficial summary of the different tests, I am interested in hearing what EdJurists bloggers and readers think on this topic. In effect, I am wanting to transition from one-way communication to a more interactive two-way discussion. I am also a bit of a dreamer and I think it would be commendable if this community of legal scholars were to develop its own test that appropriately differentiated between off-campus speech that is completely protected by the First Amendment and off-campus speech that should result in on-campus consequences. I am of the opinion that, ultimately, a test related to off-campus communication must adhere to the guidelines established in the student speech trilogy (Tinker, Fraser, and Hazelwood).


I look forward to reading what others think on this subject.


Auburn Looking for Education Law/Finance Expert

It is late in the typical job cycle for the year, but Auburn University has posted an assistant professor position in education leadership with a focus on education law and finance. The position is such that I think they would hire a new graduate potentially, depending on the pool.  

This would be a great job. I know some of the team members at Auburn and they are a strong program, at a strong university, and only a couple hours from the beach! 


Private Eyes: FERPA & Student Data Security Breaches

It is something of a truism to say that data collection is integral to individualizing student learning, providing educators with immediate feedback on the success of pedagogical delivery methods, and supporting successful educational methods with evidence-based rationale. To serve these important goals, states now have large-scale longitudinal information systems and upload large quantities of student data in an effort to track student performance over time. [1] Even local school districts now contract with third-party providers of database management, [2] storing everything from contact information and curriculum planning, to grades, test scores, disciplinary data, Social Security numbers, health information—representing extremely confidential information. [3] But, as with all data, when this information is not properly guarded, it is low-hanging fruit for the unscrupulous digital underworld. [4]

It should be noted that recent changes to the Family Educational Rights and Privacy Act (FERPA), relaxed security measures for this data. For example, under the prior regime, schools were required to obtain parental permission before sharing information in their school’s educational record. [5] Now, schools may disclose directory information (such as name, address, phone-number)—even to third-party vendors—so long as parents are provided the opportunity to opt out of any such releases. [6] But a concern greater than third-party vendor access to student information is that security breakdowns in confidential student data, particularly P-12 student data, may result in identify-theft fallout, which may not be known for years.

The call for safeguards to student data [7] exposes the shortcomings of the latest changes to the FERPA regime. While debate may continue over whether a student or student’s family’s ability (or right) to limit who collects or maintains information, including the data that companies and schools collect and retain, at the very least, students should have a right to responsible, secure data collection practices. A lot of ground lies between codifying this right into FERPA and granting a private right of action for violations of FERPA (which is currently unavailable to a victim of a FERPA violation); perhaps, it is time that policy and law makers tilt the pendulum back in the direction of privacy.

[1] See Benjamin Herold, States Make Progress on Data Systems, Advocacy Group Reports, Educ. Week (Nov. 19, 2013), available at

[2] See Natasha Singer, Deciding Who Sees Student Data, N.Y. Times (Oct. 5, 2013), available at Yet, for a fairly nascent cottage industry, the education technology software industry for pre-kindergarten to twelfth grade represents an $8 billion market. Id. See also, Natasha Singer, Regulators Weigh in on Online Educational Services, N.Y. Times (Feb. 25, 2014), available at

[3] See Benjamin Herold, Danger Posed by Student-Data Breaches Prompts Action, Educ. Week (Jan. 22, 2014), available at

[4] In recent months, student data breaches have occurred in Loudon County, VA, Chicago, IL, Tallahassee, FL, and Long Island, NY. “The 71,000-student Loudoun County [Virginia] public schools was thrust into damage-control mode last month after an outside vendor, New York City-based Risk Solutions International, inadvertently uploaded and left unprotected some schools’ emergency evacuation plans, as well as ‘directory information’ that included students’ names, addresses, telephone numbers, dates and places of birth, course schedules, and attendance histories . . . . Last November, the [Chicago school] district reported that 2,000 students participating in a free vision-examination program offered by the city had their names, dates of birth, gender, and ID numbers, as well as information from their exams, accidentally posted online. . . . In June, the Tallahassee Democrat reported that roughly 47,000 participants in state teacher-preparation programs had their personal information—including names and in some cases Social Security numbers—posted on the Internet for two weeks last spring. The information was being stored by Florida State University. . . . The 12,000-student Sachem Central School District [on Long Island, NY] suffered three data-security breaches in recent months, including one in which the names, ID numbers, and designations for free-lunch programs of 15,000 former students were posted online, according to a Newsday report.” Herold, supra note 3. Florida State is not the only postsecondary institution to fall victim to a data breach; Indiana University has spent more than $80,000 responding to a data breach that exposed the names, addresses and social security numbers of students enrolled at any of the IU’s campuses from 2011 to 2014. Data Breach Response Costs IU More Than $80,000, Diverse Issues in Higher Educ. (March 17, 2014), available at

[5] See, generally, 20 U.S.C. § 1232g (2007); Parents’ Guide to the Family Education Rights and Privacy Act: Rights Regarding Children’s Educational Records, U.S. Dept. of Educ. (Oct. 2007), available at

[6] See, generally, 20 U.S.C. § 1232g (2011); Revised FERPA Regulations: An Overview for Parents and Students, U.S. Dept. of Educ. (Dec. 2011), available at

[7] In December 2013, the Electronic Privacy Information Center, a Washington-based nonprofit, filed a complaint with the Federal Trade Commission accusing the popular financial-aid website of selling sensitive student information to third-party marketers without adequate disclosures. See Herold, supra note 3. To that end, Common Sense Media announced a new initiative last week to encourage the educational technology industry to safeguard student data from falling into the hands of corporate interests. See Ben Kamisar, Group Calls on Companies to Safeguard Student Data, Educ. Week (Jan. 22, 2014), available at See also Valerie Strauss, Why a ‘Student Privacy Bill of Rights’ is Desperately Needed, Wash. Post (March 6, 2014), available at; Adrienne Lu, Protecting Student Privacy in the Data Age, USA Today (Dec. 17, 2013), available at



Should an Educational Leader's Testimonial Speech be Protected?

Imagine that you are an educational leader hired to head up an important community college program for at-risk youth.  In your first days on the job, you do what any good leader does and audit the books.  Through this review, you discover that you have an employee who is drawing a large salary from the program, but is not doing much, if any, work.  You do some further digging, and you realize that this "employee" with the "no-show" job is also a sitting state legislator.  You care about your fiduciary duty over the public money you've been entrusted, so you confront the no-show employee and request that she begin showing up and working.  She not only refuses, but also threatens your livelihood.  You are not a coward, so you fire her.  Not only that, but when subpoenaed, you testify truthfully against her in her criminal trial once the feds discover her fraud.  Soon after, you are fired. 

You file suit against your former employer to challenge your termination as retaliation for your speech as a citizen on a matter of public concern.  But the District Court, and later the Circuit Court of Appeals, reject your challenge, citing the Suprme Court's recent decision in Garcetti v. Ceballos.  In Garcetti, the Court held that, "when public employees speak pursuant to their official duties, they do not speak as citizens, and the First Amendment does not shield their communications from employer discipline."  Essentially, speech that a public employee is hired to make is not that employee's own speech, but his work product, and may therefore be the basis of employer discipline.  The Circuit Court cites Garcetti and reasons that, because you testified only about matters you learned about at work, your testimonial speech "owe[d] its existence" to your employment, and was therefore made "pursuant to [your] official duties."  Notwithstanding the Garcetti rule, the Circuit Court proclaims that it is immaterial that your job does not require you to testify in judicial proceedings, as long as your testimony is about your job. 

Should this judicial sleight-of-hand resulting in an unbelievably expansive reading of the Garcetti exemption be allowed to stand?  In Lane v. Franks, the Court will consider the question on alleged facts similar to those in the vignette above.  Along with Professors Paul Secunda and Sheldon Nahmod, and on behalf of more than 60 other law professors, I have written an amicus brief (free download) arguing for the reversal of the 11th Circuit's flawed reading of Garcetti.  The case will be argued on April 28th, and it could have major implications for public employees--including educational employees--nationwide. 


Title IX and Teen Parents

Title IX of the Education Amendments of 1972 states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Since the passage of Title IX, school officials have been scrambling to ensure a documentable degree of equity between genders in every aspect of public school governance.


With that backdrop, I would like to summarize a conversation I recently had with a doctoral student. This female student was a teen parent who gave birth to her first child while in high school. She is now a principal of a school for students that are either pregnant or caring for their own children while completing the requirements for graduation (often referred to as “mothers school”). Students that attend her school, all of whom are female, choose this alternative setting for a number of reasons: access to free childcare while in school, specific emotional support provided to teen mothers from both the staff and the other students, and a learning environment that validates teen mothers’ adjusted priorities.


However, a majority of those who choose attend alternative schools for teen mothers also choose to loose access to a number of services found at traditional secondary schools. For example, most schools for teen mothers do not provide their students access to advanced curriculum such as honors or advanced placement courses. In addition, those attending mother schools seldom have access to transportation services through the school district.


As I have processed these facts, I have come to the conclusion that teen mothers are being forced to choose between access to an advanced curriculum and childcare. For some teen mothers, there is no choice – childcare will always win out over other factors. The irony, and potential legal pitfall, is that the teen fathers are not being asked to make similar choices. I recall a situation when I taught high school in Utah where two juniors had a relationship that resulted in the female student becoming pregnant. She gave birth over the summer and finished her schooling in an alternative setting her senior year while raising her newborn. The father, on the other hand, was the starting fullback for the football team in the fall and graduated with his peers. The differences in how these two students were treated stemmed exclusively from their gender.


I feel like teen mothers are being excluded from participating in advanced curriculum options based on their gender and this practice appears to violate Title IX. The evidence for the claim of discrimination based on gender lies in the fact that teen fathers are not facing the same difficult choices – childcare versus AP calculus.


Virtual Snow Days

Living in Michigan, the articles about virtual snow days have caught my attention this year. We have been pounded by bad weather this season, a combination of extreme low temperatures and higher than average snowfall. My kids have already missed 8 days due to bad weather, and some districts have missed more days. 

Michigan law provides many opportunities for virtual learning for K-12 students. The legislature has authorized 5 virtual charter schools and all public school students can take 2 virtual courses per marking period (Mich. Comp. Laws 388.1621f). For more flexibility, school districts can apply for students to receive seat time waivers, so they are able to receive their education without physically attending school. Yet, the Department of Education hasn't yet addressed the idea of virtual snow days. 

Are virtual snow days possible in Michigan? Probably not.

School districts are required to provide 1098 hours of instruction over at least 175 days to K-12 students. To count instructional hours for a particular building, pupils and certified teachers must be present and engaged in instruction. This instruction must be scheduled in advance and be available for the entire student population (MDE, Pupil Accounting Manual 2013). The requirement that pupils and certified teachers be "present" most likely means "physically present" because it is referring to counting hours per school building. Therefore, Michigan would have to change its Pupil Accounting Manual to allow for virtual attendance during snow days in order for this to be possible. 

As Michigan continues to develop its online educational practices, I think this is something to seriously consider as an option to allow students to learn in a way that is less disrupted by the state's sometimes extreme weather conditions.

Here is an article about the practice in New Jersey: The article describes the practice but says schools don't know if the instructional time will actually count towards the State's requirements.


ELA Submission Deadline: March 1

Just a heads up that the ELA submission deadline is this Saturday, March 1. 

Here are the details on the conference and here is the call for papers

ELA this year is in San Diego from Nov. 3-7. See you all there. 


School Law Position at Tennessee

For those interested. 

Love to have a great school law person as my southern neighbor. 


Sanity with Zero-Tolerance (Finally)

I hate zero-tolerance policies. Always have. They are just wholly unnecessary, legally silly, probably discriminatory, generally bad for kids and, on top of all that, don't even work

So, to my delight, finally zero-tolerance seems to have the worst of it in policy circles lately. Credit to Arne Duncan and the U.S. DOE for releasing new guidance last week that tries to put the brakes on mandatory suspensions and expulsions. I think the Secretary has intelligent things to say in this release video:   

The bottom line is that the law entrusts principals and other school leaders with the discretion to make appropriate decisions toward novel situations amongst kids. These disciplinary decisions can be incredibly difficult with intense lobbying on all sides. Many tears are shed and sleepless nights suffered over how to appropriately discipline kids. But, that is the job. It is a core function of a school leader and the manifestation of the trust provided to that position in our society. To attempt locally to shirk that responsibility through the use of hastily adopted zero-tolerance policies is cowardly. The policy position may appear tough, but it actually speaks to the weakness of the proposer. 

I am glad to see the light at the end of the dark, dark tunnel of zero-tolerance. 


Complying with Copyright Just Got Easier

One of the huge areas of potential copyright violations if you are a techy like me are around images. I post images to the blog, add them into my powerpoints, upload them to sites, ... so available images to use are important to me. All those same uses also apply to our kids and teachers in schools everyday.

On the web, only a few images are available to use without a direct copyright violation though. I usually try to find those images when producing documents, but it can be difficult. Compflight is a great tool and there are others such as the Creative Common search. These search engines take extra time to search and their search functions are not as powerful as core search giants like Google, Bing, and Yahoo. 

Well, Google has made this process easier by adding a licensure limitation on your image search directly on the search page (see image). Here is the procedure:

(1) run a search (such as "education law" below),

(2) go to "Images,"

(3) click "search tools," 

(4) use the "Usage Rights" drop down to select the licensure category. 

Now, this is not a fool proof method in that Google is not guaranteeing the license.  To be safe you need to independently check the license, but it is a great time saver and a really good step by Google during this Copyright Week to make the world a slightly more functional place (even if this doesn't address the core issue of the broken copyright system). 


Finance Conference RFP Deadline Tomorrow

Just a heads up that the deadline for submissions to the National Education Finance Conference is tomorrow, Jan. 15. The conference this next year is in Louisville, which of course is awesome for me. I've thus proposed a retelling of Bruce Baker and my brief on virtual school finance

Anyway, if you are interested in education finance, particularly from a legal perspective, it is can't miss conference. 


Copyright Week

Today is the start of Copyright Week, as sponsored by the Electronic Frontier Foundation, a host of other digitally interested organizations such as Creative Commons and Wikimedia, as well as other organizations interested in more open information such as the American Library Association. Here is a press release on the start of it. 

Whether or not you follow along this week, you should be aware that even as the Internet has made information more openly available than ever before in human history, many interests, specifically Hollywood, are pushing to make information increasingly protected behind copyright law. Congress has a tendency to want to listen more to Hollywood than well, common sense, so copyright law is only becoming more strict. Schools are sort of left in the middle of this and the result is that many teachers and students are technically criminals for copyright violations.  

If you want a basic introduction to copyright and education, here is a short article I did last year on it from T.H.E. Journal


Open Records & Academic Freedom in the Chronicle

The Edjurist's dear friends (Neal, Jeff & Karen) have a fascinating op ed. in the Chronicle of Higher Education today on the controversial request for university professor email and other documents by a conservative advocacy organization. 

Some thoughts of theirs: 

The problem with the unfolding episode in North Carolina isn’t the desire to challenge Nichol’s views and assertions. The problem is using an open-records request as a strategy to suppress debate. A law intended to add transparency and openness to government operations has been used to harass and silence.

Be sure to check out more thoughts from Neal, Jeff, Karen & their team at our sister blog,


SnapChat is Sending Images to the Government

Our kids really need to know that. Like now. Our younger teachers do as well. In your next legal training on anything related to social media, you should mention this. I teach a pre-service law course starting next week; I am definitely going to mention this in there. 

I'm not a user of snapchat myself, but I know that many of our students are heavy users somewhat on the premise that whatever they send will go away quickly. Well, no so much. 

Details here. H/T: Bethany Smith


Teacher Evaluation Law in Michigan: A Case Study

To further my interest in the legislative changes to teacher evaluation laws nationally, I partnered with Wayne State University researcher, Ben Pogodzinski, to investigate how teacher evaluation reform in Michigan affected labor relations in this strong union state through a survey of local district superintendents and human resource directors.

The Michigan legislature revised its educator evaluation system in two consecutive years: 2010 and 2011. The law now requires districts to adopt and implement a "rigorous, transparent, and fair performance evaluation system" that includes annual evaluations of teachers' job performance, to inform decisions regarding employee effectiveness, retention, promotion, firing, and the granting of tenure. These evaluation systems must include student growth data as a "significant factor" (Mich. Comp. Laws Sec. 380.1249). Student achievement growth will account for 50% of a teacher's evaluation by 2015 (Mich. Comp. Laws Sec. 38.81). 

While these types of changes to state teacher evaluation law were common around the country, the Michigan Legislature added a prohibition against collective bargaining on this topic (Mich. Comp. Laws Sec. 423.215(3)). This change was significant because the teacher employment relationship at the vast majority of Michigan's public schools are governed by collective bargaining.

Through our survey, we found that teacher unions continued to play an informal role in shaping teacher evaluation policy in about half of the districts relating to issues such as how student acheivement data would be used in the evaluation process, how classroom observations were structured, and teacher goal setting and attainment. This limited union involvement through channels other than collective bargaining may have contributed to administrators' positive reports about the labor climate in the state despite the significiant change in teacher labor policy.