Thursday, May 9, 2013
For another perspective on the discussion of critical mass during the Fisher argument, Professor Sheldon Bernard Lyke argues that "the justices’ questions during argument exhibited a fundamental flaw in their understanding of the definition of critical mass--[p]recedent has never barred the use of numbers or goals" in attaining admissions diversity. Catch Twenty-Wu? The Oral Argument in Fisher v. University of Texas and the Obfuscation of Critical Mass, Northwestern University Law Review Colloquy, Vol. 107, p. 209, 2013.
In May, most teachers are in the grading cycle. Professor Joshua M. Silverstein writes a timely article that contends that "every American law school ought to substantially eliminate C grades by settings its good academic standing grade point average at the B- level because low grades damage students’ placement prospects and marks in the C range injure students psychologically." Law schools, Professor Silverstein writes, are the primary exception to the convention that C's are only given for unsatisfactory work in American graduate education. A Case for Grade Inflation in Legal Education, forthcoming, University of San Francisco Law Review.
Tuesday, May 7, 2013
As an Atlanta native, I have been following the indictments this spring in the Atlanta public schools cheating case, which USA Today and CNN call the nation's largest school cheating scandal. Thirty-five educators in the Atlanta Public Schools system (APS), including former school superintendent Beverly Hall, were indicted in March for participating in a conspiracy to cheat on standardized tests such as the Criterion Referenced Competency Test, which were used as benchmarks showing student proficiency. Showing progress towards student proficiency in reading and math are required by the No Child Left Behind Act. The APS cheating conspiracy was motivated, state investigators found, by federal incentives that the educators would receive, including cash, when Atlanta's students met the proficiency standards mandated under the No Child law. The APS officials and teachers are accused of cheating by giving students essay test questions in advance, assisting students during tests, and having grade-changing parties to erase and make students' wrong test answers correct. State investigators have found that teachers in 44 of the 56 Atlanta schools examined had done some form of cheating on federal tests, according to a 300-page investigative report given to Georgia Governor Nathan Deal in 2011.
Fulton County District Attorney Paul Howard Jr. has charged the educators under Georgia's Racketeer Influenced and Corrupt Organizations Act (RICO) statute, O.C.G.A. § 16-14-4(c). The educators are charged under the Georgia RICO section that makes it unlawful to "conspire or endeavor to participate in an enterprise through a pattern of racketeering activity while being employed by, or associated with, the enterprise"). Like the federal statute it was modeled on, Georgia RICO was intended to prosecute crime syndicates, but prosecutors gradually began using RICO for public corruption cases such as the APS cheating scandal. Georgia's RICO law differs from the federal racketeering statute because Georgia law allows a defendant to be convicted for an “endeavor” to participate in a RICO violation (giving Georgia prosecutors a theory of liability that the federal statute does not have) and broader definitions of "pattern of racketeering activity" and "enterprise," Michael P. Kenny and H. Suzanne Smith notes in their article, A Comprehensive Analysis of Georgia RICO. Both RICO variations will help prosecutors. But while prosecutors can make the case for the APS educators' bad behavior, it may be more of a challenge to prove that the defendants were organized, however loosely, toward achieving a common goal to cheat—beyond simply working for the APS and not wanting to lose their jobs. In a large scandal with many defendants, Howard will have to link the criminal acts with some sort of collective purpose, which usually requires a central figure directing the organization, notes RICO expert Jeffrey E. Grell in an interview with the Associated Press. The central figure here will be former Superintendent Hall. District Attorney Howard's job now is to convince a jury that Hall's alleged acts of whistleblower retaliation, firings, and document shredding shows her control and direction of the cheating scheme.
Also, NPR reports that suspicions have resurfaced about the remarkable turn-around of Washington, D.C.'s schools test scores under former schools chancellor Michelle Rhee. The suspicions center around allegations that unusual patterns of erasures and changed answers on student standardized tests. See Long-Lost Memo Stirs Allegation Of Cheating In D.C. Schools.
Friday, May 3, 2013
The issue of state regulation of online communication between teachers and students are the subject of recent student notes. James R. Baez and Kerri E. Caulfield discuss Missouri's Amy Hestir Student Protection Act that prohibits teachers from establishing “a nonwork-related internet site which allows exclusive access with a current or former student.” See Drawing a line in the shifting sand of social media: attempting to prevent teachers from “liking” a student outside the classroom, 30 Hofstra Lab. & Emp. L.J. 263 (2012). Elise Rosen Puzio examines the constitutional implications of laws restricting student-teacher online communication and proposes ways to protect students from teacher misconduct while not violating teachers' rights in Why can’t we be friends?: how far can the state go in restricting social networking communications between secondary school teachers and their students? 34 Cardozo L. Rev. 1099 (2013).
Louisiana's Senate Education Committee rejected a bill on May 2 to repeal a controversial law that allows teachers the right to supplement science textbooks with information about evolution and creationism. The Louisiana Science Education Act (LSEA) allows teachers to supplement standard textbooks with other materials that promote "critical thinking skills, logical analysis, and open and objective discussion of scientific theories [such as] evolution, the origins of life, global warming, and human cloning." While the law expressly disavows any intent to promote "a particular set of religious beliefs," most observers, including Louisiana Governor Bobby Jindal, understand the LSEA to allow teaching of creationism and intelligent design in public schools. The LSEA has been debated annually since its passage in 2008, and 70 Nobel Prize winning scientists have urged that it be repealed, according to the Associated Press.
Wednesday, May 1, 2013
Meanwhile, there are plenty of perspectives about what the Court will decide in Fisher, particularly as Justice Elena Kagan has recused herself and Grutter's author, Justice Sandra Day O'Connor, has been replaced by Justice Samuel Alito, who has been described as skeptical about affirmative action. At Fisher's oral argument, Justice Alito said he thought that the point of diversity policies is to allow underprivileged students access to higher education rather than promoting racial preferences. Read more predictions and perspectives on Fisher here, here, here, and here.