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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