Category: Education


Greetings, Salutations, and Current Events Questions on Exams

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

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

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

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Fiduciary Duty and Financial Aid


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

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

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Politics and Alumni at Dartmouth

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

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

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


Students sue Turnitin

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

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


March Madness

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

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

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

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

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


A One Sport Only Rule

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

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

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

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

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


Close the Education Gap with Advertising?

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

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


Shechem and Consideration

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

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

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

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

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

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

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

Short Course on Some Origins of Inequality

no child left behind.jpg

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

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

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

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

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

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

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

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Compulsory Education At Age 8

Today I attended an ABA Roundtable session on children at risk. The discussion was led by Karen Mathis, president of the association. One of the most remarkable facts that surfaced during this conversation was that, each year, 3000 kids don’t start in the Philadelphia school system until age 8. Apparently only Pennsylvania, and one other state, begin compulsory education at such a late date. As one can imagine, many of these 8 year olds start first grade at a huge disadvantage compared to kids who entered school at age 3 or 4. While these aged youth may be lagging educationally, they’re physically out of place as well. Compared to the 5 and 6 year olds, the older children are sometimes massive. And that physical gap explodes around the time these children are in 6th grade (at age 14.) As a result of the behavioral difficulties that follow, many kids in this cohort drop out – at age 16 or 17- while they’re still in middle school.

I found this state of affairs both surprising and sad. With all the other challenges we have focusing kids on education, who knew that we were failing at this most fundamental level: the minimum age for compulsory education?