June 26, 2009

How to steer CYA-oriented bureaucracies, or why NCLB supporters need to think about libel law

Someone at USDOE sent me an invitation to listen to the June 14 phone conference where Arne Duncan explained how disappointed he was in Tennessee, Indiana, and other states with charter caps, let alone states such as Maine with no charter law, and how that disappointment might be reflected in the distribution (or lack of distribution) of "Race to the Top" funds (applications available in October, due in December, with the first round of funding out in February 2010). There are a few details that reporters didn't ask about (Duncan's somewhat surprising statement that a good state charter law would set some barriers for entry rather than establish a "Wild West of charter schools," and the way that small charter schools and charter schools with grade configurations outside state testing programs can stay off the radar for accountability purposes), but I was not surprised that two Tennessee reporters were called on for questions.

But apart from the selection of reporters for questions, the phone presser and other DOE moves made me think about the various uses of power in education-policy federalism. In limited ways, explicit mandates can be effective, if there is a sustained willingness within the USDOE (and esp. OCR) to make painful examples of the nastier school systems that try to evade those mandates. Offering technical assistance is another method, and despite the massive conflict-of-interest problems in Reading First, I agree with one of the researchers in the field who thinks that Reading First did improve primary-grade reading instruction, on balance. (Thumbnail version: hourslong scripts, ugh; explicit instruction in phonemic awareness and some other fluency components, obviously necessary.)

But neither heavyhanded mandates nor technical assistance can do everything, and neither works with the greatest motivation for both defensive and hubris-oriented bureaucracies: risk management. If you are a public school teacher or administrator, my guess is that you can identify some fairly silly action by your district that was motivated almost entirely by CYA motives, and if you can marry those CYA activities to pedagogy, you've been lucky or have a black belt in administrative maneuvering. (If you have such victories, please describe them in comments! Otherwise, we'll all wallow in the shared misery of observing defensive administering and the all-too-frequent ensuing train wreck.)

I think the federal government can shape bureaucratic behavior to the good by using that risk management and structuring accountability policies around that. And here's the lesson I take from my high-school journalism class in ninth grade 30 years ago: libel law in the U.S. generally recognizes the truth as a positive defense agaist libel allegations. That seems like a backwards way to frame the legal issue -- after all, isn't it common sense that a publication is libelous only if it's false? -- but the notion of a legal positive defense gives an individual or organization a way to organize behavior in a way that is both professionally appropriate and also make a legal defense aligned with professional expectations. Because the truth is a positive defense against libel claims, even an idiotic general counsel for a newspaper or publisher looks to the professionally-appropriate standard: is there documentation that the published work is true?

Sometimes a positive defense is not explicitly part of jurisprudence but evolves as a practical guidance for clinical legal work and internal advice for school systems. Observing procedural and professional niceties create exactly that type of positive defense in special education law. There is nothing in federal special education law to carve out an explicit positive defense for school system behavior, but many articles written by Mitchell Yell over the past few decades constitute a convincing case that school systems now have a de facto positive defense: professional documentation of decisionmaing and scrupulous adherence to procedural requirements are a positive defense against a broad range of allegations by parents of and advocates for students with disabilities.

Yell has argued (persuasively) that due-process hearing officers and judges use procedural adherence and professional documentation as a filter in special education cases. If a school district can document that it has paid attention to procedural mandates and has met professional standards for documenting decision-making, then hearing officers and judges are extremely reluctant to look at the substantive merits of those decisions. But if a school district has ignored standard procedural expectations that most districts meet, or if a school district has kept no or inadequate documentation of its decision-making rationale, then all bets are off and a hearing officer or judge will be much less likely to defer to the school district on professional judgments.

In essence, Yell implies, school districts can avoid adverse judgments if they pay attention to timelines and other procedural niceties and if they keep teachers and principals on their toes about current "best practices" as well as deadlines, notices, etc.  Not all districts are aware of this positive defense, or I suspect that some enterprising special education researchers could make a mint running seminars, "How never to get sued again." 

More broadly, I'm beginning to think that the construction of a positive defense against charges of incompetence would be healthy for school systems and state policies. The devil would definitely be in the details, but instead of being frustrated by a consistently observed school system behavior, maybe we should take advantage of that consistency.

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Posted in Accountability Frankenstein on June 26, 2009 12:38 PM |