Dumb Down Or Else

Last week, Erin Einhorn wrote this article in the Daily News about a New York City principal who essentially ordered his teachers to "dumb down" their classes so they could pass at least 65% of their students. Yes, he used the words "designing your expectations to meet their abilities," but this is just code for dumbing down (even I have used a more charitable term for this phenomenon, "subjective standards," which visitors here will find throughout previous posts, but I admit it means essentially the same thing).

Now, I don't think a 65% pass rate is unreasonable; as I wrote in an earlier post, I have found in my experience that roughly 2/3 of any class, sometimes less, never more, will do their work consistently and have a chance to pass. Indeed, throughout my teaching career in New York City, I have typically passed roughly 2/3 of my students every semester, with occasional variations up or down (this does not include the brief time I spent on Long Island, where I was forced to pass just about everyone even though the 2/3 ratio basically held).

What struck me here was not so much the exhortation to lower standards and expectations, nor even the blame-the-teachers strategy so often employed by administrators, parents, and the general public. It was the accusatory tone of the principal's memo itself. To wit:

"If you are not passing more than 65% of your students in a class, then you are not designing your expectations to meet their abilities, and you are setting your students up for failure..." [emphasis added]

Repeated use of second-person pronouns, even in correspondence, is usually intended to put the reader on the defensive; even if it is not an accusation, it reads like one. It's hard to interpret this as anything other than an accusation. This is clearly a person who wishes to accuse and blame his audience, and make the reader feel embarrassed and guilty. Looking at the clauses one at a time:

"If you are not passing more than 65% of your students..." Recall the discussion about failure in previous posts: failure is something the student did, not something the teacher did. The principal here seems to be buying into the same profoundly wrong concept that infects the minds of students and parents, i.e., that failure is punitive action taken by the teacher, rather than a denotation of student performance. However, if this is true, then it must also be true that passing is a matter of pedagogical grace, a gift instead of an achievement. Accusing and blaming the teachers for "not passing" x-number of students, turning both "pass" and "fail" into transitive verbs, takes both failure and achievement out of the students' hands.

"...then you are not designing your expectations to meet their abilities..." Aside from the euphemistic quality of the last seven words (discussed above), the clause as written implies that this can and must be the only cause of the condition cited in the first clause. Even if there were any credence to it, it represents an absurd over-simplification of what is in reality a much more complicated matter. It is a time-honored political technique to blame a particular problem on one particular person or group of people, or one singular cause, but all it really accomplishes is to firmly and wholly fix blame where it does not wholly belong, leaving any and all other causes unexplored, unattended and unaddressed.

And I don't need to go over again the long-term effects of adjusting standards and expectations down to the students' individual abilities, as I've written extensively about that in previous posts. How does this principal think these students got to be in the "lowest third percentile" (see below) in the first place? They have always had standards and expectations adjusted for their level, and they have grown so accustomed to it that they no longer have any incentive to learn. If standards and expectations are always adjusted down to the students' level, THEY WILL NEVER IMPROVE.

"...and you are setting your students up for failure..." Another classic politician's technique; imagine some horrible or completely undesirable outcome or goal, embody it in some clichéd and hyperbolic catch-phrase, and accuse someone of consciously and actively desiring to bring it about. Not to pick on the right-wing lunatic fringe, but this is like when they say, "If you think that, then you're helping the terrorists win." It's a despicable tactic, and should be beneath the dignity of a high school principal, particularly if his goal is to help, rather than defeat, his faculty.

All this is unfortunate given that some of the memo's content is quite useful and productive. He advises his teachers to examine their policies and standards, and to "scaffold[] your instruction and work[] through your assignments with your students, as opposed to simply assigning and expecting work." This is useful advice, but there is a difference between "working through assignments with students" and actually doing their thinking and work for them. There is also a difference between advice and accusation. The tone of the opening remarks that precede this suggest that the advice given here is meant to imply that teachers are not already doing any of these things, and that can be profoundly insulting. Few things in school make me angrier than when a supervisor accuses me of not doing something that I actually AM doing, based on nothing more than an assumption. (This was a favorite tactic of the vile, despicable creature who was the principal of my previous school, so when I see it now it bothers me even more.)

Further, as I have discussed before, for teachers to examine and refine their own efforts in this fashion, i.e., find ways to get more students to pass, is useful to themselves philosophically as a means of professional development, but for others to shift the burden and the blame entirely to teachers for passing or failing students is unreasonable, counterintuitive, and just plain wrong. We can NEVER, EVER make it OK for students to choose not to do their work, no matter what the quality of instruction. If a person has an obligation to do something, it is NEVER OK to do nothing.

Whatever constructive momentum the memo may have achieved in the middle of its first paragraph was sabotaged at the end, with this:

"Most of our students come from the lowest third percentile in academic achievement, have difficult home lives, and struggle with life in general. They DO NOT have a similar upbringing
nor a similar school experience to our experiences growing up. We must all remember this as we work with them and for them to make them successful."

This is just another way of saying, pity them. Feel sorry for them. MAKE THEM successful. There is a difference between helping downtrodden kids and feeling sorry for them; a difference between teaching them to succeed and artificially "making" them succeed; a difference between compassion and pity. When adults make excuses for kids, it validates and enables their making excuses for themselves. When adults feel sorry for kids, it validates and enables their feeling sorry for themselves. There is no hope for us as educators, not if we truly aim to educate, if our primary approach to working with children is to pity them, make excuses for them, lower our expectations and "make them successful" by pretending, and allowing them to pretend, that they actually are successful, just because they have "difficult lives."

I do not know Mr. Lieberman, nor have I worked in his school, so I must emphasize that this is not meant to be about him. However, the article and memo have unfortunately reminded me of the sick, demented, twisted monster who was the principal of my previous school, and the confounding hypocrite who was my supervisor on Long Island prior to that. I only make reference to the Daily News article and Mr. Lieberman's memo as further evidence of what I've essentially been writing about all along, much of which stems from my experiences with those two people (although to call the former a "person" would be far too charitable). I understand that principals and supervisors have accountability themselves, and need to achieve particular results. I just don't know that a profoundly wrong and counterintuitive educational philosophy is an appropriate short-term fix for a long-term problem. It's rather like trying to cure cancer with Tylenol.

Cosby on "Meet the Press"

Comedian/actor/author/activist Bill Cosby, of whom I've been a fan for over 20 years, appeared yesterday on NBC's Meet the Press (along with co-author Dr. Alvin Poussaint) to promote his new book, Come On, People: The Path from Victims to Victors. Mr. Cosby has been an outspoken critic of the cultural and sociological trends that have affected and afflicted the black community in America in recent years, imploring black parents and youth to take a more active role in parenting, education, moral development, and in securing for themselves a brighter and more prosperous future by taking responsibility for themselves and acting wisely and prudently, rather than blaming others for their plight and misfortune. While his forceful, blunt message and very public stance on the issue has drawn some criticism, people of all races and cultures would be wise to listen to Mr. Cosby's admonitions about how our lives are determined by the choices we make from day to day, not by the conditions that exist around us which are beyond our control.

One particular moment on the program caught my attention (transcript available at MSNBC.com):

-----
(Videotape, July 1, 2004)

MR. COSBY: Hey, man, let me tell you something. Your dirty laundry gets out of school at 2:30 every day. It’s cursing and it’s calling each other n*****s as they walk up and down the street. They think they’re hip. They can’t read; they can’t write. Fifty percent of them. They, they, they take it into the candy store. They, they put it—they put themselves on the train and on the buses, and they don’t even care what color or what age somebody else is. It’s about them, and they're cursing and grabbing each other and laughing and giggling and going nowhere. And the book bags are very, very thin because there’s no books in them.

(End videotape)

MR. RUSSERT: The audience seemed to be responsive.

MR. COSBY: Yes, because the people know exactly what I’m saying. See, a great deal of, of the negative is about people not wanting so much attention in that area, but it has to come out. If it is what it is and that is a horrible, horrible problem, then we must direct ourselves to it. I keep thinking about a parent who’s called in to, to the principal’s office because the child is misbehaving, and so many teachers have, have said, “And the parent comes in yelling at us, that their child would never do that, and why are they called, and all of a sudden it’s, it’s no longer about ‘We’re, we’re here to talk about making corrective behavioral changes in your child,’ but about the parent who is using all kinds of language and threatening people.” It’s something that goes into the person.

-----

What Mr. Cosby is talking about here is the ubiquitous my-child-can-do-no-wrong attitude which today's parents bring with them into school whenever they are displeased with the child's academic evaluation, a disciplinary outcome, or any other determination made by a school official. "How dare you tell my child she's not fabulous!" The outright hostility with which parents view any less-than-stellar assessment of their child's performance and behavior is comparable only to the degree to which they are usually proven wrong.

Last year, I had a student not show up to class on the day of a final essay. Since this was the first essay of the term, any student who did not show up that day received a zero and thus failed the first marking period. (Of course, those with legitimate absences were afforded an opportunity to submit the essay the next day, but it is the student's responsibility to do so.) Over the course of the day, I took careful note of every absent student, typing a list of names and adding to it each period, and ultimately distributing it to my Assistant Principal and the 10th grade Guidance Counselor. I made special note of that day's absence on my weekly conduct and attendance charts, and sent a form letter to the parent/guardian of each absent child to inform them that the child was absent and would receive the aforementioned zero.

The student subsequently asked if she could submit the essay later but she never did, nor did she ever dispute that she was absent that day. That is, until Open School Night. When she came into my classroom with her mother, I informed the mother that she had been absent from class that day and had not made up the essay. Stunningly, and for the first time, the student now claimed that she was in class that day after all (a bald-faced lie), and that I must have lost her essay. I showed the mother a copy of the list of absentees I had sent to the AP and Guidance, with this child's name unmistakably printed on it. I showed the mother a copy of my attendance bubble sheet for that week, as well as the handwritten weekly conduct chart for that week. I showed the mother all of the essays I had received from that class section (I still had them, as I prefer to hold onto them until the next writing project when they will be of some use in the classroom, as well as to show the parents on Open School), and there was no essay with her name on it.

In short, I showed the mother four separate items of proof (the Guidance list, attendance form, conduct chart, and missing essay) which were all in agreement, and would lead any reasonable person to conclude that the child must have been absent on the date in question. The response? What else would you expect? "If my daughter says she was here, then she was here."

Let me reiterate this, so there is no misunderstanding. Presented with four separate items of objective evidence on one side, and the unsubstantiated word of a 15-year-old girl on the other, this woman took the latter as the truth. And her solution was to go immediately to the assistant principal and demand that the child be taken out of my class and placed with another teacher.

It's perfectly understandable (albeit irrational) for adolescents to harbor a certain degree of paranoia about their teachers. Especially since they view academic failure as punitive action instead of a denotation of their own performance (as I've discussed at length in previous posts), students always think their teachers are out to "get them," as if we have some sort of special incentive to see to it that they all fail. Whenever my students have written fiction about school, the teachers and other adults are always portrayed as over-the-top, arbitrarily-evil cartoon villains (hence my adoption of the "Dr. Evil" persona at school to mock this ridiculous caricature). As absurd as it is, we accept it because that's how teenagers think.

Adults, on the other hand, should know better. Which is more reasonable, more likely, more believable: that a teacher would lie to make sure a student fails, or that a student would lie to make sure she doesn't? Could even the most hardened cynic answer the former?

Again, I ask: Is it any wonder our children are not learning?

Off Topic, Just for a Moment...

While I had hoped to confine this blog to issues relating to education, I find myself compelled to comment briefly on a current news item.

The story of Michael Devlin, the pizzeria manager who abducted an 11-year-old boy in 2002 and held him for four and a half years, only to be found out when he abducted another boy and police serendipitously found them both, grows more heartbreaking by the day. Between the state charges to which he pled guilty and was sentenced last week, and the federal charges to which he pled guilty today, this profoundly evil creature will never again see the light of day; he'll be 100 years old before he can even think about parole. But the details to which he admitted, apparently to avoid having even more details about his crimes come out at trial, are both chilling and deeply saddening to anyone who has ever cared about a child.

Aside from the abduction, sexual abuse, child pornography, etc. perpetrated by this individual, it seems that shortly after he abducted and abused his first victim in 2002, he decided to take the boy to a remote location and kill him. He took the boy out of his pickup truck and began to strangle him to death. And this child, with Devlin's hands on his throat, somehow "talked him out of it." The boy talked this monster out of killing him. 11 years old. I can't even envision this without feeling profoundly sad.

It goes without saying that what Devlin did to this kid, the fact that the victim lived with this man until he was 15, four critical years of his life which he can never get back, added to the kidnapping and abuse of the other boy, is all just unimaginable, ungraspable, inexplicable, unconscionable, and all the adjectives anyone can think of. Then when I think of what Bill O'Reilly was saying on his cable show after the story first broke earlier this year, that the now-15-year-old victim probably saw his abduction as some sort of vacation from parental and educational authority, that living with Devlin was more fun than living at home and that's why he didn't try to escape or contact his family, it just makes me sadder. Even I'm not that cynical about kids. I don't care what Mr. O'Reilly thinks about anything, but I remember him saying this, and in light of what's been revealed about this case this past week, I hope he will acknowledge his error.

It's rare that a news story comes along that affects me so viscerally, that produces such a range of emotions, that I feel the need to write about it in order to make sense of it and sort out my thoughts. I'm going to have to work on this for a while longer. I just can't believe what I've been reading. It's just heartbreaking.

CELL PhONES 4 JESUS

I thought I'd take the first post of the new school year to discuss the recent Supreme Court decision in Morse v. Frederick (the "BONG HiTS 4 JESUS" case), but I'm actually more interested for the moment in the New York Supreme Court's decision in Price v. N.Y. City Bd. of Educ., 2007 N.Y. Slip. Op. 27214, 16 Misc. 3d 543; 837 N.Y.S.2d 507 (Sup. Ct. N.Y. Cty. 2007). In the decision, which went largely unnoticed in the local press, Supreme Court Justice Lewis Bart Stone upheld the city's ban on students possessing cellular phones in public school buildings.

The plaintiffs in the case, a group of eight parents, sought a declaratory judgment to strike down the ban, arguing that a ban on use, rather than possession, would be sufficient to address any disruption problem which cell phones might present in school. They felt that cell phones provided a vital and indispensable communication link between themselves and their children, and that to ban them from public schools was a denial of their constitutional right to raise their children as they saw fit.

Judge Stone, wisely and with no small measure of contempt for these self-indulgent claims, dismissed the petition. He essentially found that the ban on cell phone possession, which is subject to exceptions under specific authorization (a fact entirely lost on the plaintiffs), had a rational basis and was not therefore faulty as a matter of law. Specifically, the judge emphasized the following points:

1. Any ban on use rather than possession would impose substantial logistical and financial burdens upon the already-overburdened school system, individual schools, and teachers. Between establishing procedures for internal regulation in each school, purchasing and installing screening and storage systems and equipment in every school building, the additional personnel resources needed for enforcement, not to mention placing teachers in the position of having to sacrifice instructional time to monitor and enforce any cell phone use regulations, it was clear to the court that a wholesale possession ban was not only reasonable but markedly preferable to a use ban. The court also noted that the Department of Education and the Chancellor considered these factors in choosing a possession ban over a use ban, hence the rule was not arbitrary or capricious; the plaintiffs clearly had not considered these or any other factors in insisting on the latter over the former. Ultimately, the petitioners could advance no "practically viable universal alternative."

2. As the cell phone rules provide for "authorization," the DOE did contemplate special circumstances under which a cell phone would be needed in school as an everyday matter. (Note that the DOE has amended the regulations this year, providing a procedure for a student to apply for permission to carry a cell phone in school for medical reasons.) The anecdotal "examples" provided by the petitioners, fancifully imagining certain dire emergencies in which a student might need to have a cell phone in school, were wholly insufficient to invalidate a carefully-considered administrative rule (i.e., such a rule should not be invalidated because some esoteric hypothetical terrible thing might happen someday; the potential for such an event does not outweigh the need for, and value of, the rule).

3. Most importantly, the court found that there was simply no Constitutional right to carry cell phones in school. Unlike the condom-distribution program that was struck down in Alfonso v. Fernandez, 195 A.D.2d 46 (2d Dept. 1993), the cell phone ban was not within the province of parenting rights (i.e., children's health) and fell squarely within the school's statutory authority to regulate disruptions to the learning process and to its educational mission. Neither the right of students to carry cell phones in school, nor the right of parents to see to it that they do so or to call them directly on those phones during school hours, constitutes a fundamental liberty interest under the Fourteenth Amendment.

Interestingly, in rejecting petitioners' constitutional claims, the court wrote that "the doctrine of substantive due process no longer exists as a matter of federal constitutional law."

(For readers with a non-legal background, "substantive due process" refers to the "liberty" portion of the Fifth and Fourteenth Amendments, essentially: "No person shall be deprived of life, liberty or property without due process of law." The legal doctrine of substantive due process attempts to define what "liberty" means by identifying precisely what a person's rights are; what a person is constitutionally entitled to do if (s)he pleases. In other words, certain rights are so fundamental to ordered liberty that we cannot have a free society without them. The government may not proscribe those rights without procedural due process, which refers to the lawmaking process itself, and the system of redress, used to enforce and protect those rights. Where fundamental rights are at stake, the government action is subject to strict scrutiny, requiring a compelling state interest and a law narrowly-tailored to serve that interest; otherwise, the government needs only a rational basis for the law or regulation.

Generally, any right which is explicitly granted by the Constitution and its Amendments is a fundamental right. The Supreme Court has been reluctant, however, to find any other unenumerated rights, although the most well-known and controversial is the right to privacy established in Griswold v. Connecticut and famously put to use in Roe v. Wade. The Court has also found that marriage is a fundamental right, in striking down a state law which forbade interracial marriage in Loving v. Virginia. The Court tends to construe unenumerated rights very narrowly; in Michael H. v. Gerald D., the Court held that while parents have a fundamental right to raise their children as they see fit, that right did not extend to a non-custodial biological father of a child raised by the mother's husband, whose name was on the child's birth certificate, as his own.)

While Judge Stone's statement seems severe, the point is that the court, particularly in the era of the conservative Rehnquist and Roberts courts, has essentially gone out of the business of carving out particularized rights under the Fourteenth Amendment which are not specified in the Constitution. In fact they have not done so since Roe, which itself was not strictly a Fourteenth Amendment case. Where the state has a rational basis for regulating a particular behavior, generally the state may do so. The Price case essentially held that not only do the schools have a rational basis, a compelling interest, and a very strong justification for banning cell phones, but that students and parents do not have a "right" to violate that rule or have it thrown out just because it may inconvenience them.

There are rights we need to have as a matter of liberty, which are indispensible to the concept of a free society, and then there are things which are simply a matter of convenience. A cell phone is a convenience, not a necessity. They come in handy in emergencies and can alleviate some of the anxiety of being incommunicado, but they are not inherently necessary to anyone's life or freedom. It is insulting to suggest that any child's need to have a cell phone on him while he's in class, let alone place or take a call during class, every day of the year is so vitally important to him and to our society that it should outweigh the distraction, disruption and other undesirable effects that the presence of cell phones in classrooms inevitably cause.

I have stated repeatedly that there would be no need to ban cell phones from the schools if the students could demonstrate either the capacity or the inclination to keep their phones silent and out of sight during school, but they can't. They can't, they don't, and they won't. What troubles me is that their (and their parents') solution to this problem is to complain, stage protests and file lawsuits in an effort to change the rule by force of narcissistic petulance, instead of doing the right thing in the first place and eliminating the rule by rendering it unnecessary.

The larger point which Judge Stone implies but does not specify, in declaring substantive due process essentially "dead," is that schoolchildren (and their parents) need to stop running to the courts claiming a violation of a "right" every time they find themselves subject to an inconvenient school rule, or the unpleasant consequences of violating that rule. A school is not in itself a democracy, in the sense that the student-school relationship is not analagous to that of the citizen-government relationship in society at large. It cannot be if the schools are to function properly. Are we to give children a vote in determining what school rules are? Who their teachers and principals are? What classes they take? What the school curriculum and grading standards are? And if we do that, will we also impose upon children the real consequences, such as incarceration and money damages, that adults in a democratic society face when they violate the law?

As everyone knows, adolescents tend to act on their momentary feelings and whims, and tend not to appreciate the risks that their behavior poses, nor make the sorts of careful risk-benefit analyses that temper (we hope) adults' behavior. As I've discussed in previous posts, adults tend to excuse young people's behavior and poor choices, and un-do the results, because "they're just kids" and can't be expected to appreciate risks. Yet these same adults insist that these children have "rights" just like everyone else. As a result, when their actions lead to unpleasant consequences, children tend to view those consequences as the violation of a right rather than the natural result of having taken a calculated risk.

Is it any wonder our children are not learning?

Hypothetical

The typical law school exam presents the student with a fact pattern (i.e., a story about two or more parties who have a dispute over something or other) and asks him to apply legal reasoning and substantive law to determine the respective rights and obligations of the parties, and perhaps determine who would be more likely to prevail in court and why. A former colleague shared the following story with me yesterday, so let's use that as the fact pattern, and then see if we can apply legal reasoning to the facts to determine the appropriate outcome:

Mrs. X is the mother of an 18-year-old high school senior, Y, who failed one of his classes due to his not completing and handing in required work. Upon learning of this, Mrs. X goes to the school, armed with a copy of the "Parents' Bill of Rights," which indicates that she has the right to be informed if her child is failing. She tells an Assistant Principal that she was not informed, and therefore Y's teacher cannot give Y a failing grade. She says that if she had been informed that Y was failing, she "would have made him do the work." The teacher disputes her contention and claims that she was informed. Y failed the previous marking period also, which his interim report card indicated.

OK, let's examine Mrs. X's claim one piece at a time, using basic legal reasoning and general principles of civil law. Does Mrs. X have a legitimate claim, and if so, is the remedy for which she is asking an appropriate one? The parental claim that "The teacher didn't tell me my child was failing, therefore she cannot fail" seems to be a fairly common one nowadays, and one must wonder if it really makes sense. Let's examine the situation in the context of a typical tort case, i.e.: Duty, Breach, Causation, Damages.

Duty

Without knowing precisely what the "Parents' Bill of Rights" says with regard to notification, it's difficult to say for sure just what the notification requirements and procedures in that school are. Let's assume for the sake of argument that it's just a generic statement like the one indicated above, and the school has standard procedures for NYC high schools for report cards, Open School, etc. The first question, then, is whether the teacher had an affirmative duty to personally reach out to the parent any time Y's average dipped below 65, or any time Y neglected to submit an assignment, and inform her of same.

Neither the Chancellor's Regulations nor the UFT Contract, nor any substantive body of law or regulatory scheme of which I am aware, explicitly creates an affirmative duty on the part of teachers to personally inform parents of a student's failing status whenever it may occur, nor of each and every individual failing grade or non-completed assignment, beyond report cards. Every school has a system for informing parents of student progress, including mid-term or marking-period report cards, progress reports or other mailings, scheduled parent-teacher conference events such as Open School, etc. Most city high schools have two intermediate marking periods (and thus two interim report cards) within each semester, therefore all parents are informed twice over the course of a five-month semester of their child's status in each class, in addition to the final report card in January or June.

Historically, personal phone calls or other correspondence to parents from teachers outside of these school-wide procedures have generally been regarded as a courtesy, an example of a teacher "going the extra mile" to help her students succeed. Parents, of course, have always been free to reach out to their children's teachers individually if they are particularly concerned, and teachers traditionally reciprocate in those individual cases. But does every teacher have an affirmative duty to reach out to every parent of every child whose average falls below 65, or who does not submit an assignment, any and every time either of these things occurs? Is it reasonable to place such a duty on the teacher?

The typical teacher has roughly 150 students across five classes; I've had as many as 170. While I keep my grades on an Excel spreadsheet and thus they are updated automatically every time an assignment is graded (or entered as a zero if it is not submitted), many teachers do not compute student grade averages until the end of the marking period. Even I sometimes don't know if a child will fail until he takes a midterm or final exam, or completes an assignment due just before the end of a marking period or semester. Either way, is it reasonable for a teacher to have to compute and monitor 150 students' grade averages every day, to personally call every parent whose child's average falls below 65 any and every time that occurs, to personally call every parent of every child who does not submit an assignment, as well as every parent whose child receives a low or failing grade on that assignment, every time an assignment comes due? Is it reasonable for the teacher who has spent hours calculating final grades to then have to personally call every parent whose child has failed a marking period or semester before filling out her report cards, which will in any case be mailed out presently?

To put it another way, is it reasonable to set a policy that a child cannot fail a class unless the parent was personally informed by the teacher in advance that she might fail?

Note that the word "every" keeps coming up here because we cannot call this an affirmative duty otherwise. What a teacher does for one student and parent as a matter of policy he must do for all. Of course a teacher can do this for individual students if he is asked by the parent, guidance counselor, administration, etc., and agrees to take on the responsibility, and he can do so on his own if he judges a student to be severely deficient, disruptive, uniquely troubled, etc., but if we are talking about an affirmative duty then it must apply to all teachers and all students in all situations.

Remember, the question is not whether teachers should or should not call parents, or whether it would be a positive and admirable thing to do. Of course they should, and of course it would be a good thing. The question is whether or not an affirmative duty exists; i.e., is the teacher required to do this in all cases, and will the parent and/or student be entitled to a remedy if he does not?

As we have seen, it is very difficult to find an affirmative duty for teachers to always inform parents whenever any individual child underperforms in school. It would just not be reasonable to expect teachers to do this for every student in every case, nor would it be an efficient use of a teacher's time and resources. We have report cards, we have Open School, we have all sorts of academic intervention services in the schools including guidance counselors. It is not always clear to a teacher that a child may fail until the teacher sits down to compute all of her students' grade averages at the end of a marking period. There is no reason why periodic report cards cannot satisfy the notification requirement. And whether a child passes or fails should be determined by his own ability and performance, not the teacher's non-pedagogical procedural compliance.

The issue also raises the question of the student's duty to be aware of his requirements and do his work, and the parent's duty to be aware of the child's work habits and progress. Recall the discussion in a previous post concerning entitlements and obligations. Every relationship between individuals, whether in a public or private context, involves reciprocal rights and duties; never are all the rights and entitlements vested in one party with all the duties and obligations placed upon the other. No system could function under such conditions. Recall also that minors are not immune from tort or contract liability based on their age. If any breach of duty has occurred here, the student has breached his affirmative duty (remember, he is in the best position to avoid the risk) to know and meet the requirements of that particular class, the intention of which is in any event for his own benefit.

The parent's claim that she "would have made him do the work" if she had known of his failing status is interesting in a couple of different ways. In the context of duty, it implies that the parent does not have a duty to see to it that her child does his work as a general matter, and in the case of this particular parent, would only do so if she is informed that he is failing. The claim obviously begs the question, why would the parent not do that anyway? Although it is not strictly at issue in this case, what is the parent's duty with respect to her child's academic performance in the first instance? (The claim also raises interesting causation issues, which are discussed infra.)

It therefore seems that, under the common law tort analysis, the teacher has no affirmative duty to personally inform the parent of the student's academic status beyond report cards and similar standard school-wide procedures. However, even if there is a duty on the part of teachers to keep parents informed in the fashion suggested, was that duty breached in this case?

Breach

Obviously, if there is no duty, there can be no breach. It is usually more arduous to establish a duty than to establish a breach of that duty, but assuming there was a duty in this case, the question then is whether the teacher fulfilled her obligation.

Unfortunately, more facts would be needed to make a definitive determination of a breach of affirmative duty. We know that the student failed the interim marking period and that this was indicated on his previous report card. The teacher claims to have informed the parent of the child's failing status, but by what means and precisely when are unknown, as is the nature of that information. The question may hinge on whether the report card itself satisfies the notification requirement; if it does, that ends the inquiry and there is no breach of duty.

However, the question may also hinge on whether it is reasonable to believe that the parent did not know that the child was failing, or in danger of failing, the course. The parent has already implied that she did not monitor the child's academic performance and was not concerned about "making him do the work," but that can mean several things. It could mean that she honestly believed the child was doing fine and did not need monitoring, but the interim report card would make that unlikely. It could also mean the child simply lied to her about his status and she believed him. Or it could mean that the parent, as mentioned above, does not see it as her responsibility to do that at all, unless she is personally informed by the teacher that the child is in danger of failing. Although the student's overall academic record is unknown, the interim report card should have been enough for the parent to know that the child was in trouble in that class.

Now, let us assume that the parent knew, but that the teacher still neglected to call and thus breached her affirmative duty to inform the parent that the child was about to fail. If we limit the inquiry to the teacher, we therefore must ask whether the teacher's breach of duty, and nothing else, caused the child to fail the class.

Causation

The classic test of causation in both tort and criminal cases is the "but-for" test. But for the defendant's actions (or negligence), the injury/loss would not have occurred. Then there is the additional element of proximate cause (the so-called, and self-explanatory, "Hitler's mother" problem). This is obviously the most difficult element for the parent to establish. If the student's grade is the measure and result of his performance (and let's assume, arguendo, that it is), the teacher's calling or not calling the parent has no direct impact on that; i.e., even if the teacher had a duty to call the parent and failed, the child still underperformed and still did not submit the missing work. The teacher calling the parent, by itself, would not have changed that. In other words, it is certainly possible (perhaps likely) that the child would have failed even if the teacher had called the parent, thus the "but-for" test fails rather quickly. The proximate cause of the student's failure is simple, and obvious: He did not do his work.

Hence the parent in this case attempts to establish causation by claiming that she "would have made him do the work" if she had known he might fail. (Which again begs the question, how does a parent not already know that her child might fail if he does not do his work?) This cannot possibly satisfy the "but-for" causation test, because it is not only indirect, but vague and hypothetical. There is obviously no way to know, with any degree of certainty, precisely what the parent would have done or said or what effect it would have had on the child, let alone that it would have averted the failure. Not only would we have to assume, with 100% certainty, that the parent would actually have done what she said she would, but that it would have had the effect she claims it would have had. That's a lot to assume; far too much to establish causation.

Even if the parent could establish causation, would it be appropriate to change the student's grade and pass him for the year, as a direct remedy for the teacher's failure to call the parent?

Damages

Here we return to the fundamental contention cited above: "No one told me he was failing, therefore he cannot fail." One does not need legal reasoning to see that this is a logical fallacy. Unfortunately, it has become a ubiquitous and convenient last-resort position for parents everywhere, an easy claim to make because it neither requires proof nor can be affirmatively proven.

The question here harks back to many of the points I have made in earlier posts, including the general reluctance to place the burden of learning on the learner or attribute blameworthy conduct to students, the idea of retroactively un-doing past events to absolve and benefit the student, the concept of failure as punitive action taken by the teacher rather than a denotation of student performance, etc. Yet as difficult as it is to find a logical justification for retroactively raising a student's grade based solely on the parent's ignorance thereof or lack of prior notification, this is most often what happens.

The bottom line is this: The fact that the teacher did not personally inform the parent in advance that the child was in danger of failing, even if the teacher had an affirmative duty to do that and breached that duty, does not alter the course of time and make it so the child actually wrote the essay or passed the exam the failure of which caused him to fail the course. It does not magically endow him with the skills and knowledge which he was heretofore unable or unwilling to demonstrate. Given the absence of direct or proximate causation, as discussed above, it would hardly be appropriate to simply change the child's grade to reflect what the parent thinks it "would have" been under some vague, attenuated hypothetical; i.e., to base the grade on something that did not actually happen. That simply makes no sense.

Sometimes in a case like this, the parent will claim that the teacher "did not give my child a chance" to either make up the work or do something else to earn a passing average, and demand that the child be allowed to submit the missing work, or do "extra credit" or somesuch, even if the term has already ended. Not for nothing, but the semester is five months long. There are roughly ninety school days over that time period. The student, over that time, has plenty of opportunities to choose whether to do his work or not, and decide how much time and effort to devote to that class and its requirements. It is absurd to suggest that any teacher, over a five-month period, does not give every child every chance to succeed and pass the course, or that teachers should be obligated to keep giving a student additional "chances" until the child and parent are satisfied with outcome. One cannot make up for five months of inaction and poor performance by writing one essay or taking one test. Students will not learn to make the most of the opportunities they are given if they know they will always be given one more.

(Personally, I do not believe in "extra credit;" you do the work you are assigned, period. If you are willing and able to do "extra credit," then you were able to do the assigned work but chose not to. You must now accept the consequences of that choice. When a failing student begs me for "extra credit" at the end of the term because it's "really important" that she pass my class for whatever reason, my response is simple: You should have considered that earlier, when you chose not to do your work. Yes, it's harsh, but it is a lesson young people must learn.)

All of this indicates a general reluctance on just about everyone's part to view academic performance, and particularly failure, as a result of the student's choices. Again, failure is generally regarded as punitive action even though it should not be. Not to belabor the point, as I've discussed this at length in previous posts, but if we are really here to teach, to educate young people on how the real world works, we do a very poor job of it by teaching them that their choices don't have consequences, that they do not and should not have to pay for their mistakes, negligence, and frankly, plain stupidity.

In the end, whether Mrs. X has a case or not, she is setting the most horrible example imaginable for her son. The lesson he will learn is thus: When things do not go your way, the proper thing to do is complain, claim ignorance, and demand to have what you did un-done, to have your mistakes corrected for you, because it must be someone else's fault, and you are entitled to the outcome you desire.

Fish Story

There's an old saying I recently read somewhere, and darned if I can remember where:

"Give a man a fish, and he'll eat for a day; teach a man to fish, and he'll eat for a lifetime."

The more I think about the entitlement grading model (i.e., the student begins the school year with a perfect 100 average without having done any work or demonstrated proficiency), the more I think that it is the root of almost all of the problems we have in the schools when it comes to actual student learning. It is a product of the ubiquitous self-esteem movement, which is more of an underlying philosophy than an actual pedagogical policy which is explicitly manifested in the classroom, like the entitlement grading model. That 100 average with which the student begins the year is the "fish" we give him that in many ways prevents him from learning how to fish. By making him happy today, we fail to properly prepare and equip him for tomorrow.

Just to recap, the entitlement grading model:

- Promotes the false axiom that "everyone's a winner" until proven otherwise;
- Promotes the idea that all students are automatically entitled to high grades and lavish praise, without having to do anything at all to earn them;
- Gives students a strong disincentive to do their work, or even to understand what to do; i.e., makes it preferable to not do the work at all than to do it and receive less than the maximum grade;
- Creates a disconnect in the student's mind between his work habits and his grade average;
- Gives students illogical ideas, e.g., that they should pass their classes with high averages because of their intellectual deficiencies, long-term absences, subjective dislike of or disinterest in subject matter, or other conditions inhibiting performance;
- Destroys the meaning of failure, and the meaning of achievement;
- Prevents students from learning by fostering a "defensive" approach to school; i.e., the student approaches his classes, schoolwork and assignments from the standpoint of minimizing loss instead of maximizing gain.

It is very difficult to find a logical rationale for the entitlement grading model. The only thing I can think of is the idea that if students knew that they had a zero average on the first day of school, that they had to earn 65 points or more starting from zero, they might find that to be too much of an uphill climb, and -- here we go again -- be "discouraged" and "turn off to learning." Starting with a 100 average would "make them feel better," be "encouraging," and having to "maintain" a 100 average will seem "easier" than having to earn it from the ground up. (None of this, of course, is logical.) In addition, one does not need to use pure mathematical logic to arrive at a student's final grade; I've often wondered precisely how such teachers compute the number of points to be "deducted" from 100 at the end of a marking period or semester, based on the grades the child received on submitted work, and how non-submitted work factors in. Is there any way to do it without it becoming completely arbitrary?

Using the economic model which I prefer, the child's final grade is the result of a simple mathematical formula. I enter into an Excel spreadsheet the numbers corresponding to the letter grades students receive for their notebooks and essays, create a formula to compute the weighted average, and the computer does the math (the average of each field of cells, each representing one set of assignments collectively worth a pre-determined percentage of the final grade, added together). When an assignment is not submitted, I enter "0" (zero) in that cell. In order for the formula to compute a number greater than 65, the students must generate positive numbers for me to enter into the computer by submitting work which meets or exceeds minimum grade-level standards. If the work is not submitted, I must then enter a zero. A zero in any cell will substantially reduce the average value of that field of cells (the fewer total number of entries there are, the more a zero affects the average), and it becomes less likely if not impossible for the numbers to add up to 65 or more.

Students who do not do their work at all, therefore, have no chance of passing, especially early in the term when there are not that many assignments to average in. Yet year after year I find it almost impossible to get students to understand this, and I now think I understand why. A friend of mine who teaches middle school told me recently that he and his colleagues are instructed and required to start every student off with a 100 average at the beginning of the school year. I can only imagine that the typical student who does not do his work, even if he does know that he will lose points for not submitting an assignment (and again, I really think there are students who believe they can't lose points for not submitting work), he doesn't think he will lose very many, certainly not enough to fail the class. The student thus does not believe he is risking very much by not submitting the assignment; or, alternatively, he may think that it's worth the risk. He may believe that it is less of a risk to submit nothing than it would be to submit something which might turn out to be insufficient or substandard.

The difference, then, is that under an economic model of grading the students must first demonstrate proficiency and learning before they acquire the points which will ultimately determine their final grade. Using the entitlement model, the points are already there; it is up to the student to avoid losing them, but to do that she really does not need to demonstrate either proficiency or learning. At the very least, the number at which the teacher arrives in the end will likely not be an accurate measure of the child's abilities and performance. Put simply, the child can "pass," meaning avoid the loss of more than 35 points, without actually learning anything (i.e., demonstrating that he has learned anything), which would not be possible under the economic model. Actual learning, then, becomes merely a hoped-for by-product of an arbitrary numbering system.

At the end of the day, the point seems to be to create a grading system whose primary purpose is to arrive at a number between 65 and 100 for practically every student; whether each student actually learns anything or not, or is able to demonstrate learning in any of many various ways, is a separate and tertiary concern. Remember, the first priority is self-esteem, not learning. The things which actually make learning occur, such as pointing out deficiencies in students' work, bringing attention to things which they do not know, or tying grades to objective measurements of actual ability and performance, tend to hurt children's feelings and make them uncomfortable, so we have to avoid those. We abandon the techniques that actually make learning happen and replace them with a steady and exclusive stream of praise, reward and "encouragement," thinking, hoping, that some actual learning will occur along the way.

Unfortunately, it often doesn't. The plain fact is that people of all ages need to "feel bad" in order to learn. Learning comes from experience, particularly negative experience; when we fail or are hurt, we learn how to examine what happened and prevent it from happening again. Actual learning comes from an awareness of what we do not know and what we cannot do, an acknowledgment that we can and must know more and perform better than we do now, and a commitment to engage with the mental and physical processes that will get us from where we are to where we need to be. A person learns nothing by starting at the finish line and then being congratulated for winning the race.

Why do we feel the need to play these psychological games with kids, and more to the point, ignore logic and reason along the way? As I've written earlier, when we do things like this we become enablers; we actually encourage precisely the kind of self-indulgent behavior and narcissistic personality traits we wish to avoid. The idea is to promote "achievement," but in the long run it has the opposite effect. We prefer, bizarrely, to give kids a false sense of achievement, because a system which has the potential to give them a true sense of achievement down the road would "hurt their feelings" in the here and now.

The saying about the fish which I cited above reminds me specifically of the so-called "writing process" which I was forced to employ in the Long Island school where I taught briefly several years ago. As I mentioned in a previous post, this "process" was only one step removed from having the students take dictation. Allow me to illustrate.

Session Two, Part A of the ELA Regents Exam is called "Reading and Writing for Literary Response." The task provides students with two short literary passages sharing a common motif or topic, which is enunciated in the instructions (e.g., "...write a unified essay about the nature of friendship, as revealed in the passages.") The students need to read the passages and develop a controlling idea about the topic (i.e., e.g., what do these two passages tell us about the nature of friendship?), then write a detailed response to each passage discussing how each author conveys that idea using specific literary devices. The task is neither easy nor simple.

My approach to instruction on these tasks has always been to provide students with a thorough understanding of how the essays need to be constructed and what they need to include, but only in the abstract (see the Plan of Action on my website for details); it is up to the student to actually read and understand the passages, find a controlling idea, develop a thesis, identify the key literary devices and write the actual response. The reason for this is that the ELA Regents is a test of "first-encounter;" whatever passages appear on the actual exam which the student takes, she will be reading them for the first time. There is no way to know or predict what the passages or the topic will be on the next Regents exam. Therefore, students need to learn, and gain actual experience with, reading, responding to and writing about literary texts in general, on their own, in such a way as to be able to apply those skills to any text they may read in the future.

However, in that particular school, I was expected and required to do essentially all of the students' thinking for them. For each Session Two-Part A task I gave them, my supervisor expected me to: explain what each passage was about and what it meant, tell students what their controlling idea and thesis should be, point out the important literary techniques and tell them which ones to write about, pick out direct quotations from each text and show them how to cite them, and tell them what ideas to include in their introduction and conclusion. In other words, it was my job to actually read and respond to the passages, think through the task, plan, develop and write the essay, and then give the students whatever I had come up with so they could score well on their essays. If they did not score well, then my explanation must have been inadequate; any deficiency in the essay was attributable to my not specifically telling them to include whatever was missing. If they did not write and submit the essay at all, it was because they "didn't get it" or "didn't know what to do" because I had, again, not given adequate explanation and instruction on what to write.

My supervisor, of course, rejected the idea that the students should be reading these passages themselves and coming up with their own ideas for these essays; she was entirely unmoved by (or possibly unaware of) the "first-encounter" nature of the Regents exam which I discussed above. Her position was that the students could not do these things on their own, could not be expected to do them on their own, and could not be faulted (i.e., could not be given low scores) for being unable to do them on their own. The idea was that if I gave them the solution to this particular problem (i.e., gave them a controlling idea and literary response details for this topic and these passages), they'd be able to solve whatever problem would appear on the actual Regents, with a different topic and different passages.

I strongly disagreed; my doing the students' reading, thinking, planning and composition for them, allowing them to skip those processes altogether, might earn them higher scores on these essays but would teach them absolutely nothing, let alone provide an accurate or reliable predictor of Regents performance. One cannot study for the ELA Regents; one can only practice. They needed to work their way through the task, reading material and thought process in order to learn how to do it on their own, without someone there to "explain" everything, as they would do on the actual Regents. But, naturally, the lower scores they were likely to receive as a result would -- once more, with feeling -- make them "feel bad" and "turn off to learning." So, since according to that supervisor it's "not his fault" if a student "doesn't get it," once again I had to give the students the proverbial fish, and just hope that when they actually found themselves out on the boat alone, they could operate the bait and tackle well enough to catch one.

In a self-esteem-based academic environment, not only can learning not possibly be the primary goal, it really cannot occur at all, because the things that actually make learning happen are antithetical to the preservation of fragile self-esteem. For some reason, we have chosen to give kids a false sense of accomplishment and enable the kind of self-indulgence and narcissism we wish to avoid, because a system that produces real winners would also have to produce, I'm sorry to say, real losers. Better to simply call everyone a winner than actually teach children how to win.

Redefining Failure

A couple of years ago I read an article in the Daily News about school officials in Britain who wanted to remove the word "failure" from the educational lexicon and replace it with the ridiculous euphemism "deferred success." In other words, if a child does not perform up to the minimum standard on an assessment, such as by answering too few questions correctly on an exam, we will not say that he "failed" that exam. The reason behind this, as stated in the article, was -- all together now -- we don't want the child to "feel bad" and "turn off to learning."

The only thing that really surprised me at the time was that it was happening in Britain, not here, though I'm sure it's crept its way across the pond. Many people have heard about this by now (Dana Carvey mentioned it last month on Real Time with Bill Maher), and thankfully it hasn't taken hold, at least not from what I've seen (the sentiment obviously has, but the euphemism hasn't). I only bring it up because I've been thinking a lot about what I wrote yesterday ["Twenty Questions" (June 5, 2007)], and I think there's a connection. The problem with the word "failure" is not that it makes kids "feel bad;" it's that no one seems to understand what it really means, least of all students, and yet no one wants to deal with it. Those who would solve the problem by simply eliminating the word "failure" and replacing it with a benign euphemism, regardless of their motivation, completely miss the point. They are correct that the word has power, but they are mistaken as to what that power is and where it comes from, let alone how to remedy it.

First, let's define "failure." What does it mean to "fail," in the general sense? My definition of failure is simple: the non-achievement of an achievable goal; a non-performance where performance is necessary or required and may be reasonably expected. Regardless of context, that is essentially what it means to fail. Now, toss yesterday's discussion into the mix: the economic model of grading (i.e., students start from zero and earn points by doing their work) on one side, and the entitlement model (i.e., students start from 100 and have points deducted along the way) on the other.

Under the economic model, a student can only fail as a result of inaction or deficiency. The student must complete and submit her assigned work in order to pass (i.e., earn 65 points or more), and also must perform at a certain level to demonstrate proficiency, learning, progress, and (eventually, hopefully) mastery, and thus be rewarded with a significant number of grade points. She must do her work to pass, and must do exceptional work to earn the highest grades. Therefore, the only way a student can "fail" under the economic grading model is if his work is substandard or deficient, i.e., below what he should reasonably be able to do at his grade level, or if he does not do the work at all, whether by choice or by negligence. This meets the basic definition of failure, supra. The student has an incentive to do the work and an incentive to demonstrate learning and thus increase his grade by producing higher-quality work product.

However, when we look at the entitlement model, and couple it with the ideas about blameworthiness which I also discussed yesterday, we realize almost instantly that the definition of failure, and the student's understanding thereof, must change under this scenario. Bearing in mind the necessary but mistaken belief that the student's grade should remain the same if she does not do her work, and that if she does the grade can only go down; i.e., where the student's final grade is a matter of how many points have been deducted rather than earned, the student now can only fail through action, and more to the point, profoundly negative and blameworthy action. If a student fails, it means she lost a significant number of points, that the teacher took them away, which could only have been the result of some terrible thing she did.

Regardless of whether the student (or parent) actually believes that he did something blameworthy to cause these points to be deducted, the perception nonetheless remains that a failing grade is some sort of proactive punishment; a "fine," if you will, a deprivation (unjust, of course) of something the student already possessed and to which he was rightfully entitled. A "failure" thus becomes tantamount to an accusation of grievous misconduct; "fail" becomes a transitive verb, an action taken by the teacher instead of a denotation of the student's performance. Hence students inevitably ask "Why did you fail me?" instead of "Why did I fail?"

Whereas under the economic grading model a failure means the student did not or could not obtain something, under the entitlement model it means the student has had something taken away. Whether we call it failure or "deferred success," this perception will not change.

It's no wonder, then, that the word "failure" is so upsetting to children and their parents. It has been made to carry a connotation which it should not, under any reasonable definition of the word, thanks to a misguided and counter-intuitive educational policy designed, like everything else, to make the children "feel good." Changing it to "deferred success" would merely sweep the problem under the carpet. The entitlement model of grading combined with the subjective performance standards I discussed earlier actually give students a powerful disincentive to do their work, learn, progress, and master their academic subjects. Why do your work if it can only make your grade average go down? Why try to improve when whatever your "best" is now will get you an "A" and allow you to keep that perfect 100 average you started with?

With all this talk about eliminating or redefining the word "failure," what about the meaning of "success" or "achievement?" Starting with nothing and earning 95 out of a possible 100 points is an achievement. Starting with 100 and only losing five along the way is not. In the real world, particularly in a merit-driven capitalist system like we have here in the U.S., success means making something out of nothing; taking what you have and gaining something more through skill, hard work, resourcefulness and perseverance. This is the lesson we need to be teaching our youth. Success is not starting with everything and ending up with only slightly less; it is not an accomplishment to merely avoid having what you already own be taken away, especially if you didn't earn it to begin with. Entitlements do not motivate people to better themselves.

Ultimately, I don't think the word "failure" needs to be replaced or even redefined; I think it needs to be better understood. So, too, do the words "success" and "achievement." These words should mean what they are supposed to mean, and nothing more.

Twenty Questions

Just recently I gave my students a take-home quiz containing 20 multiple choice questions. I am test-marketing this quiz for next year's students to take home in September at the beginning of the school year, to see if they can apply logic, reason and common sense to everyday school situations, such as what to do if you're absent on the day of an exam, what it means to be late to class, what to expect if you miss an assignment, etc. The idea for my current students is that they should, especially after having been in my class for a whole year, be able to get all 20 questions right and boost their grade average with what essentially amounts to a free "A."

Stunningly, incomprehensibly, most of the students who handed this quiz in got close to half the questions wrong. In one sense I should not have been surprised; after all, the questions were designed to illustrate all the possible wrong things I've seen students do (from which I drew the "wrong" choices for each question), in contrast with the one simple, logical, reasonable correct thing, but I have found in most cases that students tend to know what the right thing to do is even though they almost never do it. At the very least, they should have been able to determine what I would have thought the right answer was.

Two questions in particular stood out, in that the majority of the students answered wrong (correct answer in bold; typical student response in italics):

You are not late to class if
a. you have an excuse.
b. you have a note from guidance, dean, nurse, SPARK, principal, etc.
c. you are coming from gym.
d. you are coming from your arts studio.
e. your previous class ran long or let out late.
f. you come into the room less than a minute after the late bell.
g. you were in the room before the late bell and then left.
h. your belongings are at your seat when the late bell rings, even if you are out of the room.
i. you are standing just outside the doorway at the late bell.
j. all of the above.
k. none of the above.

On the first day of school in September, before the course begins, before any assignments are given and before any work is done or graded, your grade average is
a. 100
b. 65
c. 55
d. Zero (0)
e. whatever your grade in English was last year.
f. whatever you think you deserve.

Let's look at the first question first. The students were instructed to use logic, reason and common sense in answering, and to read each question and all the choices carefully. The question was, simply, under which of these circumstances are you not late to class? The question was not whether such lateness would be actionable or blameworthy. Given the strict liability for lateness policy I discussed in an earlier post, the students should have known that no matter what the reason is, if you arrive after class starts then you're late. The condition of being late involves arrival after a designated time, nothing more. Having a note or other mitigating factor does not alter the fundamental laws of temporal physics; a note does not turn back the clock. If you are late, you are late. Period.

(Note: The previous question was "You are late to class if...", so the fact of the student's arrival after the beginning of the period should have been a given, although in retrospect I might have wanted to include it in the question stem. However, many of the students who answered that question correctly, "...you arrive any time after the late bell, regardless of why," still answered this question wrong.)

The answer, then, indicates a couple of examples of flawed thinking. For one, it indicates that either the student did not read the question carefully or did not apply logic, reason and common sense, interpreting the word "late" to mean "at fault for being late." More notably, it indicates the mistaken belief that the perceived absence of blameworthiness somehow negates or cancels out the conduct. As anyone even vaguely familiar with tort law (or basic physics) knows, even if the conduct is not blameworthy, the event still happened, it cannot be undone, regardless of the actor's intent or whether he was knowingly "at fault." The question of fault is what is moot, not the conduct or condition. Late means late.

The wrong answer to the second question is even more troubling and even less surprising. The idea that every student walks into class with a perfect 100 average on the first day of school is one of the most ubiquitous yet completely counter-intuitive and, frankly, dumb ideas I've encountered in secondary schools. It's yet another example of what I discussed previously about every student and every parent thinking the child automatically deserves the highest possible grade and the most lavish, obsequious praise for whatever he does; that he's under no obligation to earn his grade points or do anything at all to deserve them.

Where does a child think her grade comes from? Where does she think the teacher gets the points from? Does it really make sense for a student to start the year with a 100 average and work his way down from there? If a grade is a commodity, using the economic model I discussed previously, what kind of sense does it make to start with the maximum? Why, for example, would anyone put $100 into a stock if there could be essentially no return on the investment, meaning the value could only go down? Why would an employee expect to receive his entire salary, let alone a glowing performance review, before his first day on the job? Why would a landowner pay a contractor in full before any work was done?

More importantly, where is the student's incentive to do his work if he knows that he has a 100 average right from the beginning? How does a student imagine her grade goes down from there? The student must figure, if she does the assignment and gets less than an A, her average will go down, but if she doesn't do it her average can't go down because she didn't do anything "wrong." In other words, if you do your work your grade goes down, but if you don't do it your grade remains the same. What kind of sense does that make? How else can you explain why students would or could ever choose not to submit assignments? Shouldn't any reasonable person know that if you don't submit an assignment you won't get credit for it? When I taught on Long Island, I had students flat-out refuse to submit certain assignments or do certain kinds of work, for no reason other than that they simply didn't want to or didn't "like" it, yet they had no conception at all that such refusal would or could result in failure of the course or even a lower grade. Somehow, I was the only one in that school who felt even the least bit troubled by this staggering disconnect from logic, reason and common sense.

I had a student tell me last year that I could not fail him for the first marking period because, as he put it rather forcefully, "I wasn't here!!" Let me rephrase and reiterate this, for emphasis: The child claimed that he should pass the course, because he was absent for the entire time in question. He had obviously done none of the course work, since he was not in class to do it, and thus had not demonstrated proficiency or improvement, nor could he participate or conduct himself properly in a class which he did not attend. Yet he insisted that it was unfair and wrong for him to fail, because he "wasn't here." He should pass, because he was absent.

No, really.


Setting aside for the moment the inherent, profound illogic of that contention, does it matter why he was absent? In this case, this particular student was absent from that class simply because he was chronically late to school and it was a first-period class; he "couldn't" get to school any earlier. But where do we get this idea that a student should automatically pass a class from which she has a long-term absence due to illness, injury, family emergency, etc., which is neither deliberate nor the result of her own negligence? At some point, don't we have to realize that a student has to actually take the course before he can pass it? This is how the first question discussed above connects with the second; i.e., the question of blameworthiness should be moot. Even if a long-term absence is not, per se, "her fault," a student cannot expect to pass a course she has not actually taken. That is simply absurd and no good can come from it. What we should do, the only logical thing to do, really, is find a way for her to take the course, even if it means staying in school an extra year.

The point is that in many cases it shouldn't matter whether a student's absence or other non-fulfillment of an objective requirement is his "fault" or not. Aside from the fact that teenagers and their adult enablers never regard their conduct as blameworthy to begin with, sometimes blameworthiness is simply not an issue. This idea that the absence of blameworthy conduct somehow changes an objective set of facts to the point where we are actually willing to act as if the thing didn't happen at all, or that it's "unfair" to follow the natural result of those circumstances if the child is not "at fault," makes very little sense. Life teaches us all eventually that sometimes unpleasant or inconvenient things happen even when we are not at fault. These situations need to be dealt with proactively, not artificially discarded retroactively.

We have an entire generation of children who believe that they should pass all of their classes with straight A's simply by virtue of having their names on the teacher's roster, and that they are entitled to have any unpleasant or unfortunate situation un-done and corrected in their favor so long as they are not to blame for creating it. In such an environment, no actual learning can occur.

Who's Who in Public Schools

In order to understand how legal principles apply to a high-school educational setting, we need to understand the precise nature of the teacher-student relationship, and the respective roles thereof. Civil law, particularly tort and contract, is essentially about the rights, duties, obligations and remedies of individual and corporate citizens as against other individual and corporate citizens, whether by mutual agreement (as in contract) or implication (as in tort). By contrast, criminal law and other statutory schemes involve the rights and obligations of citizens as against the state (i.e., the government, of both the U.S. and the several states) and vice-versa.

Even though the public schools are government entities, and school officials including teachers are therefore agents of the state, they do not represent or carry government authority in the same sense that police departments and regulatory agencies do, at least not in terms of the teacher-student relationship and the role of the student within the system. The government does control and oversee things like teacher certification, employment and collective bargaining agreements with the teachers and administrators and their respective unions, standardized testing, and to some degree, curriculum and assessment. In other words, the state has authority over the schools and the teachers, but the teachers do not seem to have that same authority as agents of the state over the students. Where parents can demand and receive things for their children like higher grades, reduced or abrogated punishment for misconduct, academic program changes, places on athletic or cheerleading teams, and the like; where teachers can essentially be compelled to change or ignore their own rules and standards in individual cases, they cannot be said to have inherent governmental authority.

Where is the disconnect? Why does the schools' authority as derived from the state and local governments that create them not extend to the teacher-student relationship? If adolescents are subject to the criminal laws and to the authority of police officers, why are they not subject to school rules, academic standards, and the authority of teachers in the same way? The principal reason, as suggested above, is that parents do not see teachers as authority figures in the same sense as police officers, or even workers at the Department of Motor Vehicles. While I don't mean to suggest that the schools do or should have the same function as the police, they both provide essential public services, and more importantly they are both charged with seeing to it that citizens behave in a certain way. The police must ensure that citizens obey the law (although it is the citizens' responsibility to know the law); teachers must ensure that students meet academic standards. We don't want to empower citizens to take the penal law into their own hands, or determine for themselves what the law is; why, then, do we want to empower students and parents to take academic and disciplinary standards into their own hands?

The problem, as I see it, is a fundamental misunderstanding of two critical elements:

(1.) What is the nature of the "service" which a teacher, as a public servant, provides?
(2.) What are the duties and obligations of students with respect to their teachers?

Without launching into a lengthy philosophical examination of precisely what it means to "teach," the service which a teacher provides is, or at least it should be, to provide students with instruction in the knowledge and skills which they will need to be successful in higher education and in subsequent employment. This obviously cannot occur without the participation of the students, and there needs to be a means of measuring not only whether or not the instruction is adequate, but if the students are responding and performing appropriately. The former is for the state and local educational authorities to determine; the latter is for the teachers to determine. At least, that is how it should be.

However, in the current environment the parents and students have essentially taken it upon themselves to determine both. The stereotypical paradigm has become: Every parent thinks his child is a straight-A student, and if some teacher does not give her an A, or if the child doesn't "like" that class, then that teacher must be doing something wrong and the school had darned well better do something about it. Which in most cases, it does.

In what other context do we endow private citizens with such authority to not only challenge but essentially determine for themselves the rules, regulations and determinations of a government entity? The courts have certainly not found that individual parents and students have any such authority; see, e.g., Blau v. Ft. Thomas Pub. Sch. Dist., 401 F.3d 381 (6th Cir. 2005) ("While parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child."), citing Leebaert v. Harrington, 332 F.3d 134, 142 (2d Cir. 2003) (The fundamental right to control the upbringing and education of one's child does not include "the right to tell public schools what to teach or what not to teach him or her."); Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 533 (1st Cir. 1995) (parents' fundamental right to control a child's education does not include the right to control curriculum at their child's public school). Why do the schools give it to them anyway?

The point is that teachers cannot effectively provide the public service for which they are employed unless they can exercise the public authority with which they are vested as agents of the state. In taking away that authority, parents, administrators and educrats have essentially altered the fundamental nature of the "service" provided by teachers. I don't think I need to repeat, again, what that is.

If teachers are not considered authority figures in the public sense, then the relationship between the teacher and student (and, peripherally, the parent on one side and school administration on the other) must be examined in a private/civil law context. The most practical analogue seems to be the employer-employee relationship. Since the ultimate purpose of schooling is to prepare students for an adult life of employment (and/or entrepreneurship), it makes the most sense to place the student in the role of employee. If I'm the teacher, I'm the boss; I make the rules, you the student work for me, and if you want to be "paid" (i.e., receive a high or passing grade), you need to show up for work on time, do the job, follow the rules and procedures, produce the product, do it well, and if you're not doing it well take steps to improve. I as the teacher have the authority and expertise to evaluate your work, yet I am also subject to the laws and regulations governing my business (i.e., academic standards handed down by the state and by school administrators).

An education is a commodity, and a very valuable one at that, more valuable even than a salary (a salary can be taken away; an education, once you receive it, cannot), but like any other commodity of any value it must be earned, worked for or exchanged for something else of value. If I'm the teacher, I have something you need, in the form of the knowledge and expertise to master the subject and the authority to evaluate your performance in the form of a grade. I have an obligation to provide you with this valuable commodity, as well as the tools and instruction with which you can obtain it. Yet you, the student, have an obligation to me as well; if I owe you this commodity, you owe me your best effort and best behavior. In this way it is much like a contractual arrangement; the student's obligation to do his work and follow the rules is consideration in exchange for the teacher's services.

The prevailing paradigm, however, is nothing like this. In the eyes of many parents, they and their children are the employers, the teachers are the employees, the parents' tax dollars fully comprise their duties and obligations (i.e., consideration), thus the teacher has no authority and is entirely subject to the parents' and children's whims and demands. Alternatively, and somewhat more disturbingly, the scenario is rather like that of a bailment; i.e., the parent is the customer, the teacher is the businessperson/employee, and the student is the commodity. It is analogous to the relationship of a car owner and a mechanic; the parent is the owner, I'm the mechanic, and the student is the car.

Consider this scenario in the context of what I discussed previously about expectations. If a customer brings his car in for service or repairs, and the mechanic discovers a problem of which the owner was not aware, or if the car develops a new problem after being serviced, it's certainly not the car's fault. Even if the customer does not maintain the engine properly or drives the vehicle harshly, he will still blame the mechanic if anything goes wrong. The customer typically doesn't know or understand much about automotive repair or the function of the internal-combustion engine, yet while the customer expects the mechanic to have that expertise, he will always be suspicious of the mechanic's diagnosis.

Whether auto mechanics are fundamentally as trustworthy as teachers, or more or less so, is not the point. While it is horrifying to think of children, particularly those of high school age, as property or as commodities, this is how many parents view their children in the context of their relationships with teachers and their role in school. While it may make some degree of sense for very young children in an elementary school setting, it makes no sense at all on the high school level. We cannot keep telling teenagers to "be themselves" and assert their independence and autonomy as human beings, then act as if they have no role in the determination of their own academic success (or failure). Adolescents, while not fully-developed psychologically, should nonetheless be mature enough to make reasonable, intelligent choices, and if they're not then they must learn, by being held accountable when their choices are wrong.

My parents, who grew up in the '40s, respected the authority of the schools and my teachers. The burden was on me to do well in school. Today's parents, who grew up in the '60s and '70s, learned through the dual trauma of Vietnam and Watergate to disrespect and distrust government authority and embrace self-determination (it wasn't called the "Me Generation" for nothing). It will take a very courageous stand by school administrators and teachers as a whole, or perhaps even in one place, to put an end to the self-esteem movement in schools and take back the authority which they need to truly and effectively educate our youth.