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Controversies over school policies that impact transgender students have increasingly made headlines in the United States for the past few years. What legal protections do transgender students have in schools? And how have the Obama and Trump administrations interpreted the law in this regard?

My guest today is Suzanne Eckes, professor in the Educational Leadership and Policy Studies Department at Indiana University. She has written about the various legal cases involving transgender students.

Citation: Eckes, Suzanne, interview with Will Brehm, FreshEd, 177, podcast audio, October 21, 2019. https://www.freshedpodcast.com/suzanneeckes/

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Laws that mandate education for special needs students have not always existed. In the United States, courts only began referring to students with special needs in the early 1900s. At the time, such students were typically excluded from public school.

Things began to change after the Brown v. Board of Education supreme country ruling in 1954. Twenty years later in the 1970s, Congress enacted various legislation mandating educational services and support for children with special needs.

My guest today is Charlie Russo. In our conversation, Charlie details the power of the Individuals with Disabilities Education Act and situates it in an international context.

Charlie Russo is the Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law in the School of Law at the University of Dayton.

Citation: Russo, Charlie, interview with Will Brehm, FreshEd, 155, podcast audio, May 6, 2019. https://www.freshedpodcast.com/charlesrusso/

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Today we continue our Education and Law mini-series with a show on the legal and policy issues surrounding special education. My guest is Janet Decker, an Associate Professor in the Educational Leadership and Policy Studies Department at Indiana University. Dr. Decker became interested in special education policy when she taught students with autism.

In our conversation, Dr. Decker talks about the legal term FAPE, which stands for Free and Appropriate Public Education. FAPE is legally guaranteed to children under the Individuals with Disabilities Education Act. It is one of the most important legal issues in special education, but also one of the most problematic. What is the definition of ‘Free’ and ‘Appropriate’ ‘Public’ ‘Education’?

Janet Decker’s latest co-written book with Martha McCarthy and Suzanne Eckes is Legal Rights of School Leaders, Teachers, and Students, published by Pearson.

This episode was put together in collaboration with the Education Law Association.

Citation: Decker, Janet, interview with Will Brehm, FreshEd, 151, podcast audio, April 21, 2019. https://www.freshedpodcast.com/decker/

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Today we kick off a mini-series on education and law. Intermittently, overly the next 8 months or so, we’ll be airing a collection of conversations with scholars affiliated with the Education Law Association. These shows will touch on timely legal and policy issues affecting education.

For our first show in the education and law mini-series, I speak with Julie Mead about her new co-written report with Suzanne Eckes for the National Education Policy Center entitled: How school privatization opens the door for discrimination.

In our conversation, we touch on a range of issues related to voucher programs and charter schools. Julie reminds listeners that the dictionary definition of discrimination is not the same as the legal definition.

Julie Mead is the Associate Dean for Education and Professor in the Department of Educational Leadership and Policy Analysis at the University of Wisconsin at Madison.  She is a member of the Education Law Association.

Citation: Mead, Julie, interview with Will Brehm, FreshEd, 149, podcast audio, April 8, 2019.

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Today we look at the power of Participatory Action Research in public science. My guest is Michelle Fine. In the 1990s, she worked on a study called Changing Minds, which looked at the impact of college in a maximum-security prison. The research team comprised of women in and outside of prison.

For Michelle, participatory action research plays an important role in the struggle for social justice. It not only can change legislation, impact critical social theory, and mobilize popular opinion for educational justice; but seemingly small issues can also have deep and lasting implications.

Michelle Fine is a Distinguished Professor at the Graduate Center at the City University of New York where she is a founding member of the Public Science Project.

Citation: Fine, Michelle, interview with Will Brehm, FreshEd, 137, podcast audio, November 26, 2018. https://www.freshedpodcast.com/michellefine/

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Today I continue my two-part conversation with Justin Driver, the author of the new book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind.

In today’s episode, Justin recounts his biography from growing up in Washington DC to clerking for two Supreme Court justices.

Justin takes us through some of the Supreme Court cases involving public schools he thinks are most important but that receive little attention today.

He also looks to the future given the recent confirmation of Justice Brett Kavanaugh.

Justin Driver is the Harry N. Wyatt Professor of Law at the University of Chicago Law School. His book, The Schoolhouse Gate (2018 Pantheon), is receiving rave reviews. The New York Times called it “indispensable” while the Washington Post called it “masterful.”

Citation: Driver, Justin, interview with Will Brehm, FreshEd, 135, podcast audio, November 19, 2018. https://freshedpodcast.com/driver-p2/

Will Brehm 2:11
Justin Driver, welcome to FreshEd.

Justin Driver 2:13
Glad to be with you, Will. Thanks.

Will Brehm 2:15
Another tactic that you talk about in the sort of post-Brown era is this idea of color blindness. Can you explain how that has been used to sort of advance a particular agenda that might be counter to what Brown ruled?

Justin Driver 2:31
Yeah, so the colorblind notion of the 14th Amendment says that governmental entities are almost always prohibited from taking account of race no matter the purpose. And so Chief Justice Roberts’ opinion in Parents Involved can be seen as being about a colorblind vision of constitutional law. And of course, that vision of constitutional law has important implications for our higher education in thinking about the realm of affirmative action. And this is, you know, of course, the subject of a lawsuit that involves Harvard College right now. Interestingly, in the Parents Involved case, Justice Kennedy sort of disavowed the notion that the Equal Protection clause requires colorblindness. He voted to invalidate the programs in Louisville and Seattle because they classify individual students according to race. But he did insist that schools could take account of race, therefore not be colorblind, when they are drawing district boundaries in an effort to bring about racial integration or when they are citing schools, when they were building a new school, they can be aware of the racial demographics of the city as a whole and try to foster racial integration in that way. So, this is one area where we may see his replacement, Justice Kavanaugh, take a more conservative line in this area.

Will Brehm 4:14
So, it is quite interesting that you know, what you said at the beginning of our conversation where schools are typically the first encounter of the government for people, for young adults, for children, for citizens. But yet we see this struggle constantly of constitutional rights stopping at “the schoolhouse gate” to use the title of your book. So, what have you found to be sort of the common arguments in favor of limiting the Supreme Court’s reach into schools?

Justin Driver 4:47
Yeah, there are a host of arguments that recur in this area. Perhaps the foremost is that people say, well, Supreme Court Justices are not teachers, and they do not know what is happening in public schools. They also say that the schools are quintessentially local endeavors, and therefore the federal government should play no role whatsoever in this area. And then perhaps the other final reason would be that the Constitution of the United States does not mention education. I don’t find any of those arguments persuasive, and when one notes that all three of these arguments were advanced by the proponents of Jim Crow during the era of Brown v. Board of Education, it seems to me that we should all be less accepting of the power of those arguments. This isn’t to say that every dispute in the schoolhouse should make its way into a federal courthouse. But it does suggest that we should not just reflexively accept those arguments.

Will Brehm 6:09
So, I want to ask how you first got involved in studying education law. Where did you end up going to school in America? Like public school or private school? What is your background in schooling and legal issues in America?

Justin Driver 6:27
Yeah, so I grew up in Washington, DC. I grew up in South East Washington, DC, east of the Anacostia River. Starting from a very young age, I traveled way to upper Northwest Washington, the most privileged segment of Washington, DC, and in order to do that, I caught a bus to two different subway lines, and then had a long walk, and as I would undergo this daily trek round trip, I would think, what am I gaining as a result of this journey? Conversely, what are my neighbors not gaining? I can remember learning about Brown v. Board of Education right around 1985 and thinking that in the nation’s capital within shouting distance of the Supreme Court’s marble palace, there are still some schools that are all black, and that suggested to me that there’s often a large gap between law on the books and life on the streets. And then, when I graduated from college, I very much thought I was going to be a public-school teacher for the rest of my life. I got certified to teach public school and taught AP US history and civics to ninth graders. And when I was doing that, I had some vague sense that there were constitutional decisions that shaped the schoolhouse, but I would have been hard pressed to identify, say, Tinker v. Des Moines. And so, one of the goals that I have for this book is to render, in an accessible way, the origins of students’ constitutional rights, and the contours of students’ constitutional rights in a way that, not just lawyers but ordinary folks, including, you know, educators and principals and even enterprising high school students can understand. And so that’s sort of one of the major audiences for this book.

Will Brehm 8:28
And eventually, you end up being a clerk for two Supreme Court Justices. I think it was Justice Breyer and also Sandra Day O’Connor. Did you end up talking to them a lot about education and, you know, constitutional issues inside public schools?

Justin Driver 8:46
I did, yes. Both Justice Breyer and Justice O’Connor played no small role in motivating me to undertake this project. Not by directly encouraging me but through my interactions with them. You know, Justice O’Connor, when I was with her, was a retired Justice, and she had begun to shift her attention to thinking about the importance of civics. She was very disheartened to think about the way in which many young people don’t understand even foundational concepts of our government. And so, she was interested in trying to promote civic awareness about the separation of powers. My goal here is to do a similar sort of thing. That is to say, I believe that if students can think about their own rights, that as they exist within the schools, that it may make studying the constitution a more accessible, you know, sort of document. And so, I do hope that this will make people have greater amounts of awareness of constitutional rights generally, but if you can reach students at an impressionable age in a way that they will have a great ability to apprehend what’s going on, I think that that will lay an important foundation. Justice Breyer was also important. When I was with him, two of the cases that I write about in the book were decided, the ‘Bong Hits 4 Jesus’ case and also the ‘Parents Involved’ case. And he dedicated enormous amounts of time to thinking about both of these cases. And in doing so underscored to me the importance of constitutional decisions in schools for our nation’s larger constitutional order. You know, his father was an attorney for the school board in San Francisco, and he would often talk about how important that work was. And so, both Justice Breyer and Justice O’Connor did play, as I say, a significant role in motivating me to think about this work.

Will Brehm 10:54
Was there ever a time where you disagreed with them on some educational issue?

Justin Driver 10:59
I hold both of the Supreme Court Justices in very high esteem. I felt very lucky to be a law clerk there, and I viewed it as my job to help them with their jobs. You know, I now view the ‘Bong Hits 4 Jesus’ case in a way that is different from how Justice Breyer would have resolved it. Justice Breyer would have resolved the case along grounds of something called “qualified immunity”, and therefore not reached the underlying first amendment question. He did not go so far as to say that Joseph Frederick did not have a First Amendment right here, but he just wouldn’t have reached the question. I would have, you know, now today certainly have joined the opinion that Justice Stevens wrote, saying that punishing Joseph Frederick for this sort of speech violated his freedom of speech rights.

Will Brehm 12:00
So, returning to some of these cases and topics that your book very carefully details -both the public opinion, the Justice opinions, even the legal opinions in a lot of these journals that are published at the time- one of the topics that really stuck out to me was corporal punishment. I had absolutely no idea that this was still legal in America, let alone practiced -well, quite a lot in a few states- and more importantly that there was a clear racial difference between which students were receiving corporal punishment and which were not. And in this case, it was more African American students receiving corporal punishment. So, has the court ruled on corporal punishment, and what was some of their logic behind these rulings?

Justin Driver 12:52
Yeah, this is the issue that I care the most about that I cover in the entire book. The, in my view, scandalous persistence of corporal punishment. The Supreme Court in the 1970s had an opportunity to rein in corporal punishment in a case called Ingraham v. Wright. The case arose from truly egregious facts. James Ingraham was a middle school student in Florida, and he was on stage with some of his friends during an assembly, and he was instructed to depart the stage and did so with an insufficient sense of alacrity. For that pretty classic Middle School behavior, he was summoned to the principal’s office to receive five licks in the parlance, and that is to say, he was going to be struck with a two-foot-long wooden paddle. When his turn arose, he protested his innocence, and two assistant principals grabbed him, bent him over the principle’s desk, held down his arms and his legs, and he received not five licks but 20 licks. And this beating was so savage that even three days later he had a bruise that was six inches in diameter, that was tender, swollen, and purplish in color, and also oozing fluid. So, you would be hard-pressed to imagine a more, sort of, shocking set of facts than those that existed at Charles R. Drew Junior High School, James Ingraham’s school. It was an all-black school. And James Ingraham’s treatment was part of a larger reign of terror that existed where students were beaten for sitting in the wrong seat, for wearing the wrong socks to gym class, you know, for just incredibly minor infractions. And the school district, when they defended this policy, ended up making matters worse. There was a principal from a school in Miami Beach who said, “Oh, no, we don’t use corporal punishment in this school. We have a predominantly Jewish population, and they understand oral persuasion”. The implication there, of course, is that the black students at Charles R. Drew Junior High School understand only brute force. And so, the Supreme Court of the United States, it was a very odd opinion of five to four decision, Justice Powell said this does not qualify as punishment for constitutional purposes. The Eighth Amendment, of course, prohibits cruel and unusual punishment, but Justice Powell said, that, in effect means cruel and unusual punishment that stems from a criminal conviction. And so it was a very surprising decision because only a few years earlier, the federal courts got rid of what was called “the strap” in prison, meaning hitting inmates, and people thought, well, if you can’t hit people who have been convicted of crimes for not following orders, there’s no way in the world that you’re going to be able to hit public school students. But the Supreme Court did not see it that way and exactly as you suggest, Will, this is not just a historical artifact. Corporal punishment still exists. There are 19 states that have it, but in some ways that overstates its prevalence because there are five states that account for more than 70% of the instances of corporal punishment. And if there’s any, as I say, single goal that I have for this book, that it elevates the salience of corporal punishment and invites the Supreme Court to revisit this issue because I don’t think that the jurisdictions that retain this practice at this late date are going to abandon it on their own.

Will Brehm 16:38
And what is the constitutional issue at play for corporal punishment in your eyes?

Justin Driver 16:43
Yeah, so the strongest claim would be the Eighth Amendment claim, and I think that this is an argument that would appeal to liberals, but also the libertarian inflected vision of constitutional law that is ascendant in some right-leaning circles. If you are a libertarian, you have a skepticism of state authority. And in what instance could it be starker where the state is exercising dominion over an individual than physically hitting someone with a foreign object? I should say that public school students are the sole remaining group in American society that governmental figures can strike with impunity.

Will Brehm 17:33
Wow. I mean, that leaves me speechless. Another issue today is, and we hear it more and more from politicians, is that we need to start arming teachers to prevent lone shooters with the rise of mass shootings in American schools. What are some of the constitutional issues that you see when it comes to arming teachers, when it comes to police officers inside schools, as we see more and more of that happening. You know, what sort of issues arise constitutionally?

Justin Driver 18:08
Yeah, so the Supreme Court’s case involving the Second Amendment is a case called Heller v. District of Columbia. It’s written by Justice Scalia and did confer some limited individual’s right to bear arms, but the opinion was quite careful to say that nothing in the opinion should be understood to disturb regulations involving firearms in sensitive government buildings, and it particularly mentions public schools. So, I have seen some claims that the Second Amendment should make it so that laws prohibiting guns in public schools are impermissible. That is a very difficult argument to square with Heller itself. It is of course true that there have been a number of truly upsetting and deeply disturbing incidents involving firearms. Indeed, massacres is not too strong a word in thinking about Columbine and Newtown, and Parkland. And so, there is no doubt that many judicial opinions refer to our post-Columbine era. I am sensitive to the needs for school safety. I take that very seriously. And I do not think that if a school wishes to have metal detectors that the constitution should be understood to prohibit those efforts. I do also think at the same time that we need to have a realistic approach to the likelihood of a school shooting that’s going to happen at any particular school. I came across a statistic that suggested that any given school in America can expect a school shooting roughly once every 6000 years. And so again, it is to say that these are rare events. They are highly salient events, but we should not believe that a school shooting is a likely event where our children, say, attend schools.

Will Brehm 20:16
Another issue that seems to be on the minds of many Americans today is illegal immigration. We have Donald Trump constantly talking about this caravan of basically migrants from South America, Latin America, moving their way up through Mexico to the Mexican-American border, hoping to seek asylum from all sorts of various troubles from where they came from. In terms of immigration and unauthorized immigration, has the court ruled on anything related to immigration and education?

Justin Driver 20:54
Yeah, so there is a really important case that too few people know about called Plyler v. Doe, which was decided in the early 1980s. That case involved a Texas statute that sought to exclude unauthorized immigrants from Texas public schools. The Supreme Court of the United States invalidated that measure and said that it is unconstitutional to bar, in fact, the children of unauthorized immigrants from the nation’s public schools. Some constitutional law professors have tried to minimize the importance of that case. They say, well, Texas was the only state in the nation that had such a law at that time, and so we should not view the Supreme Court’s intervention as momentous. They say, in effect, that only those cowboys down in Texas would be drawn to this sort of a measure. But we know very well today -as your question suggests, Will- that anxieties about unauthorized immigration are far from confined to the nation’s border. And so, I view Plyler v. Doe as so significant because had the Supreme Court not in effect interred the Texas measure, there is no doubt that other states would have passed similar legislation. And so, as a result of the Plyler v. Doe decision, millions of children have been able to receive an education who otherwise would have been denied one. And so rather than viewing that as some insignificant decision of marginal import, I think that Plyler v. Doe is among the most significant decisions that Supreme Court has ever issued.

Will Brehm 22:40
I mean, obviously, it had a huge impact on access to education, which is seen as an idea that so many people in the world of education want to advance.

Justin Driver 22:51
Yeah, I should say one more thing about Plyler v. Doe, by the way, that I fear that the current court could revisit that issue. John Roberts, when he was a young attorney working in the Reagan Department of Justice, co-authored a memorandum suggesting that Plyler v. Doe was incorrectly decided. You know, Justice Kennedy, who is now no longer on the court, never weighed in expressly on Plyler v. Doe, but I strongly believe that he would have found it to be correctly decided. I could quite easily imagine his successor thinking that it was wrongly decided, and so I fear that states are going to enact legislation that is designed to invite the Supreme Court to revisit that issue, and if the court were to reverse course, that would have calamitous consequences for our constitution order.

Will Brehm 23:45
That brings up a very interesting point. Throughout your book, you really focus on the courts composition, and you focus in on these different Justices and sort of the different majority opinions that they could form, you know, 9:0 or sometimes 8:1 or sometimes 5:4. We now live with a Supreme Court that is deeply divided ideologically. But Justice Roberts is now seen as sort of the quote unquote, swing vote, which I am not sure if that even is the right way to describe it. But he said sort of in the middle ideologically. So, what do you see if you were to sort of think about the future of the Supreme Court and education? What do you see happening in terms of student constitutional rights?

Justin Driver 24:39
Yeah. So, in addition to the Plyler v. Doe decision, potentially being in flux, I can imagine a couple of other areas that Justice Kennedy’s departure and Justice Kavanaugh’s joining the court could make a difference. So, I think about the establishment clause involving religion. The Supreme Court has, in my view, done a pretty good job of making sure that public schools are not places where students are being proselytized to. When Kavanaugh was in private practice, he co-authored a brief casting doubt on some of this jurisprudence in a case called Santa Fe v. Doe, where a public school had students to deliver prayers over at a high school football game over the school’s loudspeaker. Justice Kennedy thought that did violate the establishment clause, but if Kavanaugh continues to hold the view that he expressed as an attorney, then the area of religion in public schools is a potentially hot button area. Another area that keep an eye on would be the legitimacy of race-conscious actions taken by school boards. We spoke about Parents Involved earlier, and Justice Kennedy departed from the rest of the GOP appointed Justices in finding that some race-conscious measures were permissible. Kavanaugh, when he was in private practice, wrote a piece for the Wall Street Journal, where he suggested that race-conscious measures should be almost automatically regarded as unconstitutional. And so, I think that those are two areas where the current court could lurch to the right in the area of students’ rights.

Will Brehm 26:49
So, looking across the history of Supreme Court rulings, what can we learn?

Justin Driver 26:55
One of the most important lessons that I draw from this research is that the Supreme Court has an especially vital duty to protect constitutional rights within the schools. The Court’s decision in Barnette from 1943 makes this very point in a really powerful way. That case involved requiring students to pledge allegiance to the American flag. Jehovah’s Witnesses believe that reciting the Pledge of Allegiance violated their religious faith. Justice Jackson wrote an opinion for the court that invalidated that measure, and he said that the freedom of speech involves a corollary right not to speak. But more important than any single line from that opinion is his insistence that the school is a vital theater for constitutional law, because Justice Jackson said, if we discard constitutional rights within schools, then we teach youth to discount constitutional principles as mere platitudes. And he says, we risk strangling the free mind at its source. And I cannot imagine a more powerful and important lesson than the one that Justice Jackson gave to us in the 1940s.

Will Brehm 28:24
Well, Justin Driver, thank you so much for joining FreshEd, it really was a pleasure of talking today.

Justin Driver 28:29
Thank you, Will. I really enjoyed our time together.

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Do constitutional rights stop at the schoolhouse gate? Are American students, in other words, granted the freedom and protections outlined in the US constitution?

This question doesn’t have an easy answer.

My guest for the next two episodes is Justin Driver. In his new book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind, Justin explores most if not all Supreme Court rulings on students in public education.

In the first part of my conversation with Justin, we explore the constitutional significance of school rulings and focus much of our attention on the issue of race.

Justin Driver is the Harry N. Wyatt Professor of Law at the University of Chicago Law School. His first book,The Schoolhouse Gate(2018 Pantheon), is receiving rave reviews. The New York Times called it “indispensable” while the Washington Post called it “masterful.”

Citation: Driver, Justin, interview with Will Brehm, FreshEd, 134, podcast audio, November 12, 2018. https://www.freshedpodcast.com/driver-p1/

Will Brehm 2:15
Justin Driver, welcome to FreshEd.

Justin Driver 2:18
Glad to be with you, Will. Thanks.

Will Brehm  2:19
So, I want to just jump right into this and ask why is public school a significant location to even study constitutional issues?

Justin Driver  2:28
Yeah, we don’t often think about public schools as legal entities, but they are, in fact, animated by Supreme Court decisions affecting constitutional law. It’s also true that the public school is the first place that most people encounter the government for sustained periods in their time. There are more than 50 million public school students in the country and it takes several million of adults to run schools and that means that about one sixth of the American population is in public school on school days. It’s also true that I am particularly drawn to examining constitutional law and the public schools because the disputes that enter the school often are reflective of larger cultural anxieties that exist throughout the nation. And so, one of the arguments that I make in the book is that by tracing these particular conflicts, one can understand the last 100 years of American history. So those are a couple of reasons why I think this is a particularly important area to study.

Will Brehm  3:43
And so, for much of the history of the Supreme Court though, the justices rarely ruled on education, on school. So, what was the general logic historically that the court took when it came to schools and the Constitution?

Justin Driver  4:00
Yeah, the first case that I write about in much depth chronologically, is a case called Cumming v. Richmond, where a community in Georgia closed its high school for black students but kept its high school for white students open. And the Supreme Court of the United States refused to find that was a violation of the equal protection clause. Even though you might regard these schools as some people have said as separate and unequal, right. There’s no high school for black students. Nevertheless, the Supreme Court said, in effect, that these are local matters that the Constitution of the United States says nothing about one way or another. We’re not going to get involved in this quintessentially local arena. And that rationale was representative of the overall approach for many years.

Will Brehm  4:59
And another case that I often think about is Plessy v. Ferguson, but I always associated it with schools, but in fact, it was about train cars. Could you just explain the logic of that case and how it fit into this sort of historical narrative of education being seen as a local issue?

Justin Driver  5:18
Sure. So, Plessy v. Ferguson is a case that’s decided in 1896. Louisiana has a racially separate rail system. The language that many people identify with Plessy v. Ferguson is “separate but equal”. That language comes, not from the Supreme Court opinion, but it actually comes from the Louisiana statute in question. And the Supreme Court decision written by Justice Brown, says that if racial classifications are reasonable then they pass constitutional muster. Justice Harlan, of course, wrote a famous dissenting opinion where he says that our Constitution is colorblind. Interestingly, for our purposes, Justice Harlan wrote the majority opinion in Cumming v. Richmond, which we spoke about a moment ago, upholding the closing of the black school. And this suggests that Justice Harlan is not quite the avatar of modern racial enlightenment that some Supreme Court Justices hold him out to be.

Will Brehm  6:33
And looking at these two cases, Plessy v. Ferguson and Cumming v. Richmond, you say that African Americans at the time, in the 19th century, the court basically provided civil equality but denied African Americans’ social equality. Can you explain what the difference was at that time?

Justin Driver  6:55
Yeah, so this is an unusual thing to our modern ears. We think of equality as being a largely undifferentiated concept. But in the 19th century it was divided into a few different categories including, as you suggest, civil equality on the one hand, and social equality on the other. Civil equality would have meant the ability to enter into contracts and things of that nature whereas social equality would have meant the sort of things that lead to interracial intimacy, including interracial marriage, but also importantly, for purposes, integrated schooling would have been regarded as socially equality. And so, Justice Harlan dissented in the Plessy v. Ferguson decision because he viewed rail cars as involving civil equality. Evidently because people were buying tickets for rail cars, he viewed that as being civil equality, whereas the Justices in the majority in Plessy v. Ferguson would have regarded the rail car separation as a form of social equality. And so, Justice Harlan is able to write the Cumming v. Richmond opinion because he viewed integrated schooling also. And he would have regarded that with  schooling matters as involving social equality, and therefore, the Equal Protection Clause would have said nothing about that whatsoever.

Will Brehm  8:27
So, it seems like a lot of the sort of beginning cases of the Supreme Court in education or in public schooling in particular, were really about saying, schooling is this local issue, and we’re not going to get involved too much. Separate but equal is okay. So, when did the Supreme Court actually take more of a stance that said, okay, the state is actually infringing on civil liberties of students or of individuals when it came to schools? When did that actually happened?

Justin Driver  9:01
Yeah, beginning in the 1920s, the Supreme Court begins its involvement with education. It’s important to say that the major cases from the 1920s did not involve public schools but were instead thinking about constitutional infringements by the state with respect to private schools. One case from the 1920s is a case called Pierce v. Society of Sisters. There, Oregon passed a measure that required all students to attend public schools. In other words, it sought to outlaw private schools and in particular, parochial schools. The measure was backed by the Ku Klux Klan and their fear was that Catholic schools prevented Catholics from being what they would have referred to as “Americanized”. The Supreme Court of the United States invalidated that measure and said in resident language, the child is not the mere creature of the state. And so, Pierce v. Society of Sisters along with another pair of decisions, that was an important intervention and step on the path toward finding that public school students also had constitutional rights within the public school.

Will Brehm  10:31
I find that pretty amazing that it took so long to recognize that students, American students, had constitutional rights like American adults. I guess that’s the separation here.

Justin Driver  10:47
Yeah, that’s right. It is a striking phenomenon. One of the things that jumped out at me as I was working on this book was the incredibly contingent nature of constitutional decision making. And we sometimes think that constitutional law is sort of foreordained and this was anything but, in the sense, that the development in this area was hardly something that would have been foreseen at the beginning. And so, it was very much unfolded in fits and starts and quiet plausibly, many of the most important decisions could have been decided the other way. So, what jumps out at you is also something that’s striking to me.

Will Brehm  11:32
And one of the most important decisions that I think you highlight in your book is Tinker v. the Des Moines Independent Community School District. Could you explain what that case was and how that’s relevant to seeing students as having constitutional rights?

Justin Driver  11:49
Yes. So, Tinker is a case out of Des Moines, Iowa, where in the 1960s students want to wear black armbands in protest of the Vietnam War. This is in December 1965, long before there’s any mass mobilization against the Vietnam War. When the Des Moines school officials got wind of this plan, they said, “Oh, no, this is too hot of a topic. We have a graduate of the Des Moines schools who died over in Vietnam. And he still has buddies here. And if you all wear black armbands, his friends are going to regard you as dishonoring his legacy” and so they said, “You can’t wear the armband and said that you are unwelcome to attend school as long as you wear the armbands”. And at the time it’s a really open question as to whether students have first amendment rights. Justice Fortas writes a magnificent opinion and it gives me the title for my book, he says, “It can hardly be argued that students shed their constitutional rights at the schoolhouse gate”. Justice Black wrote a vehement dissenting opinion, where he says, students are there to be seen and not heard. Our society is too permissive. And, in effect, the youth culture is spiraling out of control. Justice Black gave his descent from the bench and he spoke for more than 20 minutes. That’s a signal of unusual, deep displeasure with the majority’s opinion. It’s not merely that the majority was wrong for Justice Black, it’s that they were dead wrong. So, he spoke for a really long time, he was fairly frothing at the mouth and Chief Justice Warren is reported to have said, “Old Hugo really got caught up in his jockstrap on that one”. And so, it’s a really remarkable opinion. But, you know, the opinion by Justice Fortas, it was significant because it reconceptualized the role of students in American society. Fortas, the real sort of innovation here is that, he says that, “Students are not merely receptacles that teachers fill with information. Instead, students talking to each other about the issue of the day is not some sort of distraction but instead a vital part of the educational process itself”. So, I think of Tinker as a really important breakthrough. Unfortunately, in my view, the court has failed to build on Tinker in the way that it should have.

Will Brehm  14:41
So, what happened since then? I mean, it seems like giving agency to students in the educational process -by giving them constitutional rights, the ability to have free speech, advanced ideas in their own way, challenge ideas that are seen as normative -that seems like, in my mind, a good thing. I mean, you’re saying that that has actually sort of shifted to the other direction, towards Justice Black’s dissent?

Justin Driver 15:09
Justice Black’s dissent continues to be embraced by Justice Thomas. He wrote an opinion in a case called Morse v. Frederick from 2007 that Justice Black was exactly right, and that Tinker was wrongly decided, students should have no first amendment rights whatsoever. Justice Thomas, of course, is an originalist and he said that, you know, in the original understanding, teachers commanded, and students obeyed and so it was quite striking that he waxes nostalgic. Justice Thomas’ views are not representative of the current court but in recent years -in recent decades- the court has carved out a number of exceptions to the foundational rule of Tinker including in the Morse vs. Frederick case itself. I should say I’m calling it Morse v. Frederick but just about nobody calls it Morse v. Frederick. Instead, it’s routinely referred to by lawyers as “the Bong Hits 4 Jesus case”. That message was on a 14-foot-long banner that a high school senior in Juneau, Alaska unfurled from across the school as the Olympic torch made its way down glacier Avenue in Juneau, Alaska. The principal sees Joseph Frederick unfurl this banner, marches across the way, rips the sign out of his hand, and then suspends him from school. And the question is, does this violate his first amendment rights? The Supreme Court in a very odd opinion written by Chief Justice Roberts said that if the school believes that the speech is designed to promote illegal drug use, then it’s permissible to punish the student for that speech. And I say that’s unusual from a First Amendment perspective because it’s a hallmark of the freedom of speech that you’re supposed to be neutral with respect to viewpoint. You can’t silence pro-drug speech if anti-drug speech is permissible because the marketplace of idea, you should allow people to have their say. Justice Stevens wrote a really important dissenting opinion in this area. He was quite elderly at the time. And he said that he could remember prohibition, and that we should in effect view Joseph Frederick, as attempting to participate, however, inarticulately, in a growing debate about the legality of marijuana. And of course, he means by that, with respect to prohibition, that what is illegal today can become legal tomorrow. And of course, 11 years have passed since the “Bong hits 4 Jesus” decision and Justice Stevens’ dissent assumes only added significance and force.

Will Brehm 18:07
Do you think that the “Bong hits 4 Jesus” ruling would be overturned in this new era where marijuana is becoming increasingly legalized?

Justin Driver  18:16
It’s a good question. The court is typically reluctant to reverse itself and to overturn precedents. I do, however, hope that the Supreme Court will demonstrate renewed interest in vindicating students’ speech. The Roberts Court has a reputation as being a staunch defender of the freedom of expression. Indeed, some people think it’s rather too enamored of the freedom of speech and identifies infractions where they don’t properly belong. But one major area where it has failed to vindicate free speech rights is students’ speech. And so, I do hope that the court would be willing to revisit Morse v. Frederick and also build on Tinker. Let me give you an example. You know, the Tinker case, the rule that emerged from that was that if teachers have a reasonable forecast of a substantial disruption then it’s permissible to punish students for speech. But the problem with that rule is that it reads in what might be regarded as a “hecklers veto”. This is a term that first amendment mavens use to describe when particularly sensitive listeners can, if they object vociferously enough to the speech, decide to silence speech. And so, we see many of these cases where students grow upset and they can threaten their classmates and rather than talking to the folks that are threatening violence or unrest, instead, too often, in my view, school officials silence the speech. And so, I find that a distressing development and I do hope that the court will revisit this issue.

Will Brehm  20:15
Yeah, it’s so fascinating that even today, it seems like constitutional rights literally stop at the schoolhouse gate. That children, that young adults, are viewed fundamentally different as citizens, right? They don’t have the same necessarily constitutional rights as adults, for instance. And I guess, for me, what’s so interesting is that the issue of race in your book sort of cuts across all of the different cases that you profile, that you go through in such great depth. And, in a sense, this idea of separate but equal from Plessy v. Ferguson and the idea that you don’t want this interracial mixing going on because maybe children are seen as innocent and, you know, corruptible and mixing races is going to have some sort of negative outcome. That seems to be a recurrent theme over many different cases. And of course, the big case that people probably always associate with education is  Brown v. the Board of Education. So, can you talk a little bit about what did Brown v. Board of Education actually do? And maybe more importantly, what didn’t it do?

Justin Driver  21:29
Yeah, it’s a great question. Brown v. Board of Education is the most widely celebrated opinion. Today, Judge Kavanaugh, during his confirmation hearings said that he thought that Brown v. Board of Education was the most important decision in the Supreme Court’s history. More important than Marbury v. Madison in an important early case dealing with judicial review. But even though everybody sort of knows Brown, people have widely different views about what the opinion actually held. So, this is a case from 1954 dealing with racial segregation by law in the nation’s public schools. There are 17 different states that require Jim Crow and another four states that permitted Jim Crow, including Topeka, Kansas. And so Chief Justice Warren writes a unanimous opinion, saying that in the realm of education separate is inherently unequal. But the question becomes exactly as you suggested, Will. What does Brown mean? Does Brown nearly forbid segregation? Or does Brown require integration? And so, the decision itself set off a fierce debate to control the meaning of Brown and ultimately, it’s my argument that I advanced in the book that the erstwhile segregationist successfully claimed the mantle of Brown.

Will Brehm  23:09
How so?

Justin Driver 23:10
So, in 1956, Senator Sam Ervin of North Carolina helped to mastermind a document called the Southern Manifesto. Senator Ervin was a graduate of Harvard Law School and a former Justice on the North Carolina Supreme Court. He was quite legally sophisticated and also a staunch segregationist. And he said -right around the time of the Southern Manifesto, which was a document that said that Brown was wrongly decided- he made a public statement where he argues, “Brown is a deplorable decision and it’s also not as drastic as people think”, he says. And so, over time, he eased away from the first part of that construction, that it was deplorable, and said, it’s not as drastic as people think, meaning that he contended, Brown does not require integration. And indeed, over time beginning in the 1960s, he would say that Brown, properly understood, forbids the efforts of school districts to require integration. And that is an argument that ultimately carried the day in a case called Parents Involved in Community Schools from 2007 which was decided when I was a law clerk at the Supreme Court for justice Breyer.

Will Brehm  24:39
And what did that ruling state?

Justin Driver  24:41
So, in Parents Involved, the court considered plans out of Louisville, Kentucky, and Seattle, Washington. They wanted to have greater amounts of racial integration than would flow from assigning people simply to their neighborhood schools. They say we have racially diverse cities, but our schools are racially isolated. And so, in order to make sure that the schools are reflective of the greater racial diversity than we have in our cities, we’re going to take account of race in order to bring about racial integration. Chief Justice Roberts writes an opinion that effectively claims the mantle of Brown and says that it forbids these sorts of programs. He says that Brown invalidated regimes that told students where they could go to school based on the color of their skin. These programs in Louisville and Seattle tell students where they can go to school based on the color of their skin. It matters not one wit, for constitutional purposes, according to Chief Justice Roberts that the programs in the modern era were designed to bring people together and that in the Jim Crow era, they were designed to keep people apart, and indeed keep racial minorities subordinate.

Will Brehm  25:57
It reminds me of the book, ‘Through the Looking Glass’. It’s like everything is turned upside down. You know, like, how did we go from seeing Brown -as celebrating Brown to reintegrate schools, to get rid of segregation- to having, in 2007, a Supreme Court Justice, use Brown to argue, basically, segregated schools. As so many students today know -I mean, even myself. I went to school in the US and I’ve seen so many public schools that were either 99% minority students, or 99% white students, and it’s so obvious that schools are so segregated today in America.

Justin Driver  26:42
Yeah, it’s it was a very upsetting decision for me, when I was a law clerk to Justice Breyer and Justice Breyer wrote a very long and in my unbiased view, wholly, convincing, dissenting opinion, where he says that it is a cruel distortion of history to compare Topeka, Kansas of the 1950s to Louisville and Seattle of the modern era and he offered what we could think of as an integrationist conception of the reconstruction amendments. Unfortunately, though Justice Breyer’ opinion did not carry the day.

Will Brehm  27:19
Well, Justin Driver, thank you so much for joining FreshEd. It really was a pleasure of talking today.

Want to help translate this show? Please contact info@freshedpodcast.com
Have any useful resources related to this show? Please send them to info@freshedpodcast.com

Nine public service employees are suing Navient, the student debt service provider, for providing misleading and inaccurate information. They allege that Navient engaged in predatory lending, more interested in turning a profit than finding them the best repayment plan.

My guest today is Randi Weingarten, president of the American Federation of Teachers. ATF has been helping their members navigate the student loan industry. What they found is shocking.

For Randi, there is a legal and electoral path to find justice for student loan borrowers.

Citation: Weingarten, Randi, interview with Will Brehm, FreshEd, 133, podcast audio, November 5, 2018. https://www.freshedpodcast.com/weingarten/

Transcript, translation, and resources: Read more

What are Americans’ views of higher education?

The common story is that people see higher education as an investment in the future of an individual. More education from the best university will result in high salaries in the future. In this story, the public doesn’t appear. It’s all about the private good of higher education.

But what if this story is wrong? Or at least biased by the very questions being asked? Instead of asking if higher education is an investment in one’s future job prospects, what if we asked about higher education’s public value?

Well, my guests today did just that.

Noah Drezner and Oren Pizmony-Levy, together with Aaron Pallas, conducted a nationally representative survey in America on views of higher education. Their findings tell a new and powerful story.

Noah Drezner is an Associate Professor of Higher Education at Teachers College, Columbia University, where Oren Pizmony-Levy is an Assistant Professor of International and Comparative Education.

Citation: Drezner, Noah D. & Pizmony-Levy, Oren, interview with WillBrehm, FreshEd, 124, podcast audio, August 19, 2018. https://www.freshedpodcast.com/drezner-pizmony-levy/

Transcript, translation, and resources:

Read more

 

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Ted Dintersmith is not your normal Silicon Valley venture capitalist trying to save the world through technology. He’s much more complex.

After producing the film Most Likely to Succeed, which premiered at Sundance in 2015, Ted embarked on a trip across America. For nine months he visited school after school, meeting teachers in ordinary settings doing extraordinary things.

Today Ted joins FreshEd to talk about his new book What School Could Be: Insights and inspiration from teachers across America.

Ted is currently a Partner Emeritus with Charles River Ventures. He was ranked by Business 2.0 as the top-performing venture capitalist in the U.S. for the years 1995-1999.  In 2012, he was appointed by President Obama to represent the U.S. at the United Nations General Assembly, where he focused on education.

Citation: Dintersmith, Ted, interview with Will Brehm, FreshEd, 108, podcast audio, March 19, 2018. https://www.freshedpodcast.com/dintersmith/

Will Brehm:  2:03
Ted Dintersmith, welcome to Fresh Ed.

Ted Dintersmith:  2:05
Great to be here.

Will Brehm:  2:06
So in the fall of 2015, you literally went back to school for an entire school year, not just one school that you went to, but hundreds of schools across every state in America, what on earth made you decide to embark on this journey to go back to school?

Ted Dintersmith:  2:26
A lot of people ask me that, particularly my friends and my family members, because it is a little ambitious to go to all 50 states in a nine month period. And the trip really didn’t take entirely the shape I expected. So initially, I felt this, and I still feel I mean, every single day, I feel the urgency of anticipating what the future is going to be like for our young adults, and having schools adapt and modify and transform themselves to keep pace, which I think very few schools actually are doing for good reasons, because the innovation economy’s sprinting ahead. So I sort of said why didn’t I go on this really ambitious trip to make sure people understand there’s urgency here. But as I traveled and I took it very seriously, I heard the, believe it or not, the advance campaign planning team who did all the work for Mitt Romney’s 2012 presidential campaign. So it’s like, every day from morning, you know, breakfast till the end of the day, which would, the end of the day was typically 10, 10:30 at night with a community forum, I’m just meeting all these people, I’m going to all these schools. And yeah, boy, I just learned so much. I talked to so many interesting people, I saw so many interesting things. And so I thought, it’s like the classic thing, I thought I had something to say to America. And instead they had a lot more to say to me. And then that ultimately led to my writing a book about it.

Will Brehm:  3:50
So okay, so you went across the country speaking with thousands of people, what did you hear? What were people telling you about the state of education in America?

Ted Dintersmith:  4:01
Whether there’s just a million different perspectives on this, and you realize how incredibly complicated and intertwined our education system is, with schools, subject to all sorts of external forces, you know, state legislators, school boards, college admissions, parents, real estate agents, on and on, there are million different things that come into play, when it comes to the decisions that get made in schools. I’d say, if there’s one major takeaway is that in education, we largely have a system that is run by non-educators telling educators what to do, it’s sort of a few things in American society where that takes place. And you find that a lot of the people who project their views on the school really are thinking about the school they went to 30, 40, 50 years ago. And they’re not able to step outside of that kind of dated perspective on what’s to be accomplished in schools, or maybe more importantly, how to assess whether schools are doing a great job. And so you realize that, and this is similar, I think, to one of my perspectives from business is I generally learned a lot more about a business when I talked to the people actually kind of in the trenches doing the work than when I talked to senior managers, and I worked with some very good senior managers. But if you really want to understand what’s going on, talk to the people doing the work. And that’s what I was able to do. And I think it’s unusual because you know, I recognize I’m humble about the fact that I’m a person with a business background interested in education. And when I say that, as soon as you say those words, I have a business background now, and you’re interested in education, a lot of people in the classroom, you know, like the blood drains from their face, because they’ve seen that movie before. And it’s not a particularly good movie. But I found what I really put the time into, listen to them to hear about what they were experiencing. And in particular, to see some of the amazing things they were doing. It was really energizing.

Will Brehm:  6:05
So why is there a disconnect between the people running education and the people basically doing education, right? Like, why are the upper level managers so disconnected?

Ted Dintersmith:  6:17
In my book I talked about this, and the common denominator, and it’s not 100%, nothing ever in life is 100%, but a lot of the people that make their way to the top of these bureaucracies, you know, states, federal, you know, two things. One is they generally have very strong academic credentials. So school work for them, they expect it should work for everybody, they have no beef for the fact that they, you know, got into an elite undergraduate school and then went on to get their PhD from Harvard in the Graduate School of Education. So they are fundamentally aligned with the process of school. And they are also people that were able to work their way through and up to the top of large bureaucracies. So they know how to work a system, they have a mindset around policies and procedures and metrics, and they do what I think they’re inclined to do, what they’ve succeeded within their own personal life. And then they take that and apply it to schools across America. The problem is, a lot of kids have incredible gifts that go beyond the realm of the academic. And when you start to standardize education, so you can measure the progress of kids, I think you largely destroy the learning.

Will Brehm:  7:33
So on this trip of yours, was there anything in particular that you changed your mind about after meeting all of the educators and students and parents and principals? Like, what was the biggest thing that you came away saying, Wow, I really think differently about that now?

Ted Dintersmith:  7:50
Well, I clearly shifted not dramatically, but whatever respect I had for teachers going into the trip, which was a reasonably high level of respect only got higher. I mean, the number of teachers that would share with me, you know, in tears, you know, a variant along these lines, which is, every morning, I have to decide, do I do what’s best for my students, or what the state tells me to do? There are a lot of teachers in that category. You know, an incredibly moving day for me, is going to the national teachers Hall of Fame in Emporia, Kansas, and you see this knoll where they have these plaques and monuments and, you know, not massive monuments, but commemorating the teachers who gave their lives in classrooms for their students. And it just hit me, you know, like, we trust these teachers with the lives of our kids, but we don’t trust them with their own lesson plans. I mean there’s something really wrong there. And so that was one of my biggest things was just sort of an increase in respect and appreciation. As well, you hear all the time people say, you know, well, our teaching forces are innovative or one that really troubles me is why our public schools can’t innovate. And, you know, you realize, you put public schools and No Child Left Behind straight jackets for 20 decade, in 20 years. You tell them what they can’t do day in and day out, and then you criticize them for not being innovative. I mean, that is not fair. Despite it all I met a lot of teachers doing incredible things in public schools that I write about that just blew me away when they were able to think differently about how they want to engage and inspire their kids.

Will Brehm:  9:32
I want to ask you a list of terms basically that are sort of these I don’t know popular faddish policy terms in education today that we hear a lot in the media and a lot of politicians and big education reformers, quote unquote, reformers talk about and I want to hear your perspective of these terms, but from the perspective of all the people you’ve met. And so the first one is 21st century skills. We hear this a lot these days, what is your opinion on 21st century skills?

Ted Dintersmith:  10:05
Would people listen to me? I don’t hear a lot that’s different from what happened back in the days of Plato. And so I think in some ways, thinking that you have to be a creative problem solver, a communicator, whatever. And putting that in the context of the 21st century is a bit of a misnomer.

Will Brehm:  10:23
What about college ready?

Ted Dintersmith:  10:25
You know, this one to me is, and I pointed this in my book as one of the biggest factors impeding innovation in our K through 12 schools, and disengaging so many students. And honestly, lots of the college ready content is not of intrinsic interest to kids, is not terribly relevant to adults, and is largely baked into a system because it’s easy to test. And so I feel like we need to step back and say, we have gone dramatically overboard and pushing college ready onto the agendas of our particular middle school and high school kids.

Will Brehm:  11:03
Stem, STEM education?

Ted Dintersmith:  11:06
Another trendy thing you’ll read all the time, every kid you know, you are not going to do well in the 21st century without a STEM background, which is I think pure baloney. I actually think liberal arts is really important, you know, because they do teach these fundamental things that are important. You know that just as Plato and Socrates took on very challenging issues, kids are immersed in some of these complex ideas you find in literature, or history or philosophy, or any one of a long set of disciplines can be great vehicles for developing skills that are really important. STEM, first of all, and this is in my book as well, as I talked about the fact that, you know, for instance, MIT students on graduation day, somebody had the great idea which I think it actually is a really great idea to videotape these students on graduation day taking on this incredibly difficult challenge, which is they give the students a light bulb, a wire and a battery and say, can you light up the light bulb and kid after kid after kid, you know, cap and gown, you know, degree from the most prestigious Engineering Institute in the world, five on AP Calculus BC, five on AP Physics, 800 on the SAT and MIT blah blah blah, I mean, like, these are the best of the best, they can’t light up a light bulb. What you know, with a wire and a battery, they can’t do it. And, you know, right up the river, I talked about Eric, Missouri at Harvard in what he learned in his physics courses at Harvard. And so I’m actually deeply skeptical that when we say kids are really getting great at STEM, that in a lot of cases, I don’t know that it really goes much beyond memorizing formulas, memorizing definitions would be facile with being able to spend them back on an exam and slightly varied forms. And so, you know, like, I feel like if a kid’s passion is STEM, it can be a great path forward. But I think we need to start blending the academic with a lot more the applied, you know, that kids that are interested in physics need to be shadowing a master electrician and wiring things up and actually making circuits work instead of just memorizing Coulomb’s law and Kirchoff’s law, because I think we’re fooling ourselves when we think we’re producing great scientists and engineers in our colleges, the employers often tell me, they get here, they don’t really understand much of anything, we got to teach it to them as if they’ve never taken these courses.

Will Brehm:  13:29
It reminds me of that one part in your book, where you talk about this presidential summit that you attended when Obama was president. And there was all sorts of discussion all the way up to the Secretary of Education about calculus. You know, calculus is the thing we need to put back into the curriculum and get more kids taking calculus. And, you know, so why is that sort of this narrative that reaches all the way up to the highest levels of policymakers?

Ted Dintersmith:  13:58
Well, I put it back on the policymakers, the people that say things like that, and don’t know what they’re talking about. And they really don’t. I mean, you know, if you can google my background, I mean, I published papers written back before computational resources were really much of anything. When I had to do clothes for medicals by hand, you know, so I’m not without a fair amount of perspective on when calculus actually was useful, and how it’s a lot less used today. I mean, you know, and kids will get done with AP calculus, and you ask them when would you ever use this? Their answer is, I have no idea, you know, but they might be able to, if they’re particularly good at it to a hyperbolic cosine transformation. But Photomath or WolframAlpha does that instantly on your smartphone so we have these kids spend nine months replicating what a smartphone can readily do without ever making a mistake and they never quite get to how to apply it and actually calculus is something that has very limited applicability. You know but if you’re one of these bureaucrats, it just sounds good. You know, oh, well, kids, you know, isn’t it a tragedy that half the kids in America in high schools they don’t offer calculus. And college admissions officers, oh, we really look for kids that have taken on the rigor of calculus. You know, it’s just mind numbing, because most of the kids that take calculus are not taking statistics. You can get great jobs with statistics, it’s important for career, it’s important for citizenship, it comes into a lot of your personal decisions that are consequential and yet, we’re telling kids take something that almost no adult in America uses and don’t take something that’s indispensable across the three most important things in your life, work, citizenship and personal decisions. You know, it’s like and we just owe our kids better than that, we owe our kids a more informed perspective on the things we advocate as being important.

Will Brehm:  15:55
Okay, so going back to this list of buzzwords and ideas and policies. What about charter schools? What did you find about charter schools as you were crossing America?

Ted Dintersmith:  16:05
Well, I think that charter schools, public schools, private schools, take the category, I don’t care which one it is, you can find some great examples of schools, some okay examples and some bad examples. And I actually don’t think those percentages across the type of school that is are all that different. Yet, you know, you read in the newspapers, you look at where a lot of philanthropists direct their money. And so charter schools are dramatically superior to public schools, despite the data that says there’s really not an appreciable difference in performance. And those are performances measured by standardized tests. And there’s a lot of evidence that charter schools are doing, you know, two things. One is they’re trying to somehow dot the kids that are going to test as well, I think you see some of that. And also they are relentless about test prep. And so I think there’s nuance to these things. But we often just try to simplify it. And so there are charter schools out there, my film Most Likely to Succeed is about High Tech High in San Diego, a really spectacular school. It’s a charter school, it was started back in the days when there was a small number of charter schools formed to really prove out bold in different types of innovations. And I think most people would say there’s a role for that. That’s an important thing to have in our education system. Today, though, most charter schools are co-opted by people who are just going to try to grind out better test scores from their students and hold that up as a measure of success. And I think it’s such a shallow view of things that, you know, we just, again, we need to think harder when millions of kids lives around the lines with the policies and decisions and the massive amounts of funding we direct to schools, you know, are tied to things that just don’t reflect careful plot.

Will Brehm:  17:54
So on your trip, when I read your book, it is very, it’s much more optimistic than I actually imagine that would be before I started reading, and I want to get into some of that optimism about you know, there are many schools and systems in America that are basically doing everything different than what you’re just talking about before, you know, I mean, they’re not trapped in this old way of thinking. And there are many educators trying their hardest to innovate within the constraints of the system that exists. So can you tell me a little bit about, you know, the inspirational features of some of these schooling systems? And, you know, what do these really innovative schools look like that you visited and met the teachers and students who attended?

Ted Dintersmith:  18:43
Yeah, it’s so interesting because one of the challenges I faced in writing the book and I hope I met it is that the specifics of the things that blew me away, you know, when you looked at exactly what these kids were doing, there was no rhyme reason they were really quite different. But there were general principles that undergirded them that really made the difference between, you know, a kind of same old same old classroom where kids, you know, just kind of go through the motions and the occasional question is, will this be on the test, versus these classrooms, these schools, these even out of school settings, where kids are just racing ahead, you know, the learning is deep and retained and joyful, and you just sort of say, man, they have got this and which is why I found the whole trip so inspiring, and why I think and remain deeply hopeful that we’re going to make enormous progress in, you know, a relatively short period of time, because we don’t need to invent what works, I mean, it’s being done, you can find something really great in any school in the country, certainly, any community has its great proof points. And so we don’t need to travel to Finland to see better education, you know, we don’t need to travel to Shanghai, you know, I mean, it’s like it’s being done in the US, it is being done in lots and lots of places. And I think one of the things we need to do a better job of celebrating those successes, which is a goal of my book, and encouraging other people not to copy it, but to in their own way, embrace things that help their kids, you know, have better learning outcomes and be better prepared for a world that’s going to be full of opportunity for the people that are creative and bold and, you know, think outside of the box and curious and a bunch of other things that often get left behind in the process of school. But that world for somebody that’s just conditioned to jump through hoops for somebody that’s just good at memorizing content, replicating low level procedures that kid’s going to be in a world of hurt point forward. And so I think it’s that pattern. And that’s why intentionally wrote the book picking things from every state in the country to really reinforce the point that it’s not just in, you know, actually I found Palo Alto I found California to be not that innovative you know, but you can find these great things in places that many people don’t think of its innovative you know, that North Dakota is, you know, the country that Kentucky’s, you know, these there these really great people fighting in every single day to advance learning for their kids.

Will Brehm:  21:22
And do you think all of the different models and systems that you’ve seen that were inspiring? Are they scalable? I mean, you said don’t copy it, right. But how then can it be scaled even a whole school district or a whole state, you know, maybe not think about the national level?

Ted Dintersmith:  21:40
Yeah, and I write about districts. So, you know, I’ve got a great chapter, a great profile of what’s going on in Charlottesville, Virginia, great district level innovation, the state level New Hampshire, so not only can it I mean, it is being scaled but it’s being scaled at a meta level instead of at a prescriptive level. And so what the people that are really thinking carefully about this are doing is scaling a set of conditions instead of scaling, you know, a cookie cutter model of a particular classroom or school. And I think that’s really the difference between, you know, two decades or more of US education policy, which is decided on behalf of everybody across the country, you need to do X and so now we’re going to make you do it. And we will hold, you know, Title One funding out to sort of bribe you to make sure you, you know, march to the right tune on this versus the really informative, thoughtful leaders like, you know, Jenny Barry in New Hampshire who are looking at how do you put in place the conditions that led superintendents and principals and classroom teachers do the things they entered the profession to do? And how do you trust the teachers to lead the way in far more informed assessments. And so to me, that’s really incredibly encouraging, you know, where you look at a model that is not being scaled, as I say with you, Will, on October 17, study x in class y, which, I mean, who the heck wants to live in a world like that students don’t want to, teachers don’t want to, I mean, when we micromanage a curriculum, and say that all kids need to study the exact same thing for the exact same high stakes test, we really are undercutting any real chance of learning and proficiency development among kids, as opposed to putting in place a condition. So let people run with things, set their goals, really just knock it out of the park in terms of accomplishment.

Will Brehm:  23:44
So what are some of these conditions, right? Like, there must be some sort of, I don’t know, more abstract conditions that that might be able to be scaled to the middle level, like you said?

Ted Dintersmith:  23:55
I put it at the top of the list where it works. There’s a high degree of trust, you know, and if you, you know, it’s one of the things that happens, the bigger the bureaucracy, the more the machine moves away from trusting people to implementing policies and procedures to keep something bad from happening. Once you take trust out of the system, once you, you know, look at what we did our brilliance of holding teachers accountable to standardized test they didn’t believe in and I think, shouldn’t have believed in. You know, we’ve really, you know, cut the legs out from under, you know, what our schools are capable of doing, you know, so that’s the first thing I’d say trust. Second thing is having clarity about where you want to get with kids. And, you know, I talked about, you know, schools, districts, even states that are thinking very carefully about what are the, what are the competencies, what are the skill sets and mindsets you want your students to be developing and be clear at that level. And then working back from that, to understand what school experiences will lead to that. And for sure, the competencies that are going to matter going forward are not memorizing content, replicating low level procedures, following instructions. Machine intelligence is already far better at that than any person could ever be. But it is things like, you know, creative problem solving or aspects of citizenship or aspects of character like never giving up. And so the question is, then how do you embed those in the school experience but not fall prey to this cockamamie thing, like, we’re going to have standardized test of grid, you know, like, you know, like we would someday be here, we’re going to have standardized test of creativity, which honestly, kind of falls in the category of a profoundly bad idea. But, you know, and then really tying the student work to authentic accountability, are they producing things they’re proud of that beat some level of some standard, you know, if a kid is really going to be held accountable to their ability to do great work in language arts? How do you test that? Well, you know, it turns out, you know, and this is another thing that I think is so interesting is that, that if you don’t feel the need to roll all these things up into a particular number, it turns out there are easy ways to, you know, make sure the kids are held accountable. I mean, I often share the story that in 25 years in venture capital, I never want to ask somebody what their SAT scores were, what their grade point average was, but I always ask them to send me three or four writing samples of work that they’re proud of. I’ve learned so much, it didn’t take me five hours to read three or four writing samples. And I actually think that that approach said a lot about my successes as a venture guy is I can read their best examples in, you know, a few minutes, 5, 6, 7 minutes, I can read them. And if they were interesting, I could pick up the phone and talk to them and say, you know, of the things you sent me the third one really struck by interest. Tell me more about it, ask him some questions. If it was really their work. If they really mastered it, they had great answers. And so you think about something like the SAT essay question, right? I think this is so telling is that for 12 years, the College Board gave essay questions on the SAT, it’s actually something really useful to do, you know, kid has no prep, you know, no help from any adult, they can’t anticipate the topic, there’s a proctor you really get to see the kids on writing.

If they had just said for all applications, admissions officers, if you want to see an authentic example of the kids work without coaches, without parents, without tutors, click on this and you’ll see their essay. They didn’t do that. No, they said, we got to put a number on it. And so they ran these essays through these, you know, out of work people they’d hire off of Craigslist, who in interviews will say, I didn’t even read the work I just scan it, people have debunked it by taking great writers and having right sheer nonsense and getting a 750 to 800. If they just were, you know, five paragraphs, four to five sentences per paragraph, invert the sentence structure, introduce some vocabulary words that you know, that are unusual or challenging. Bingo 750 to 800.

And you realize like we obsess about rolling it up and do a few numbers when we’re really letting the easy measurement tail wag the learning dog. And so like New Hampshire, there are digital portfolios with these students, teachers lead the way in authentic assessments but they can be audited. So if your school board and your school is saying most of our kids are doing anywhere from well to outstanding in these areas, you can say I want to look at 10 at random portfolios, see for yourself, teachers cross check each other. To me, that’s far better in terms of getting kids to work on authentic, you know, projects and essays and you know, they value creativity, they really do align with developing skills that matter with a thoughtful assessment system or assessment framework as opposed to boom, high stakes test. They’re generating multiple choice or formulaic essays, somebody somehow turns them into a number. And then when they go up 0.7%, everybody says, great, when they go down 0.3%, everybody says the bottom is falling out. I mean, it really makes no sense.

Will Brehm:  29:26
America is sort of known maybe in a more negative way for having very different funding levels between schools based on these property taxes, and then also deeply segregated schools even after Brown versus the Board of Education. How do you think America is going to be? Or do you think America is going to be able to overcome some of these race and class divisions that we find in schooling?

Ted Dintersmith:  29:56
Yeah, it’s a huge issue. And I talked about being, you know, two different schools 10 miles apart, in Mississippi and, you know, it’s just night and day. One is in a building that anybody would probably say should be condemned. And the other one had, you know, just football fields, fields, plural, you know, practice fields, the main stadium I mean, it’s just most beautiful place in the world you can imagine and you find that all over America. I’m not picking on Mississippi is that it’s almost anywhere you go, you can, in 10, 15 miles you can find two school particular here, urban, suburban area, you can find two schools in close proximity with dramatically different amounts of budget, you know, funding is really this, you know, Rodriguez versus the San Antonio decision more than Brown versus the board that drove all that because local property taxes tell the story. And that’s a very difficult gap to get people to face up to, because the ones with the cloud, the ones with the power, you know, are the ones that you know, have their kids going to the better resource schools. And so it’s a huge issue. But then we take something that’s an enormous challenge. And we make it that much worse. Because if you look at the data on how much time kids in the under resourced schools spend doing worksheets. I mean that’s their day, they’re doing worksheets around the clock. They’re giving material that they have no interest in, material that we can’t really explain how it will ever matter them in life, you know, we block them from getting a high school degree because they can’t pass Algebra Two. I mean, you know, like, I got a PhD in math modeling from Stanford. And I’m not sure in my career I ever used anything from Algebra Two. I mean, you know, like, it’s just really astounding the things we pile up block kids from getting a high school degree, because nobody ever steps back and thinks about it. And so what I found, which gave me encouragement, actually, quite a bit of encouragement is when the heart and soul of school was far more aligned with challenges that were messy and ambiguous and connected with the real world where it wasn’t clear what you needed to do to get an A where you knew you were going to fail multiple times and had to just keep coming at it where you know, where it required real out of the box, you know, out of the box thinking that you know, again and again, people would tell me oh my gosh, you know, these underperforming kids, the at risk kids, the kids that we’ve sort of viewed as being not on the right side of the bell curve, they actually blow us away when they’re doing something they care about. And oftentimes a really rich, you know, micromanaged kids fall apart when they’re given that kind of ambiguity. I mean, they paralyzed, they’re paralyzed when they think they might fail. And so it suggests this view that we could better prepare all kids by connecting more of their school experience with taking on, you know, creating and carrying out initiatives that one way, shape or form make the world better that do have lots of ambiguity and lots of messiness, and lots of challenge with them, that’s actually better preparation for them later in life, and starts to make real progress and reversing that achievement gap.

Will Brehm:  33:14
So when I was finished reading your book, I kind of I was left feeling to be honest, that a lot of what you’re saying is about education is really for getting children prepared to enter a workforce that is going to look radically different in the future than it does now. And I just wanted to ask on your journey, did you experience or witness in a sense civics or citizenship, or the ability to learn how to be in the world? Right, like, so how does citizenship education fit within public schooling? I mean, is education only about jobs? Or is there more?

Ted Dintersmith:  33:52
Yeah, and you know, I do write a lot about school experiences, where kids are connected to the world and in different ways, making their world better. And in some of those ways, it’s directly aligned with the career path. And that’s important to me, I mean, I feel like we have given a kid an enormous gift if they come out of high school with the skill set to directly get a job that pays well above the minimum wage. And by the way, I think that’s doable for most kids in school in America today, and their K through 12 years.

And you know, so as opposed to spending the entirety of K through 12 on college ready, which means that the kid leaving high school really has to choose between a crap, a lousy minimum wage job or college, they pick college. You know, the math on that is pretty dreadful with, you know, only half finishing in six years or less. And then of those that finish, only half of those get any kind of a job we normally associate with a college degree. So it’s sort of like you start down the four year path, four-year degree path. And it’s one chance in four in a reasonable time frame, at least the kind of job everybody thinks a guarantees, and of those kids, no matter who they are, you know, 70% are taking on substantial amounts of student loan debt. And trying to pay off student loan debt, if you don’t have a very good job is a nightmare. And so, you know, I look at that. And so I feel like in a ruthless economy, and people need to try, I mean, if they google me, you know, like, I know a lot about innovation. People need to really recognize the fact that machine intelligence is just advancing at a blistering pace. And you know, I tell this story about the team that got funding at Google for the driverless car, which is now I want to say, maybe eight years ago and so they put their careers on hold, they made this big bet on driverless cars, you would think that they would be by and large really optimistic about being able to pull it off and the most optimistic person in the founding groups said that it would take at least 20 years before we’d have driverless cars. So you know, three years ago, driverless cars were three times safer than human driven cars. So if it’s been talked about today, it will be real in 10 years. I mean, it’s just will be real.

So that’s why I push so hard for making sure kids have an ability to plug in to the economy and make their way forward. I don’t think by the way, it’s either or, I don’t think it’s just and actually really celebrate and focus on schools that blend the academics with the career that learn about electricity by shadowing a master electrician instead of studying Coulomb’s law that captured documentaries, you know, the right docu.., produced documentaries to capture aspects of their local history. I think there’s a way to blend.

Experiences are really give kids a career lift with experiences that get them thinking about intellectual ideas. And that’s one of the great roles these teachers play is to say, oh, you’re interested in this, What about this, is sort of move that initial interest to something broader and to really get at the core thing of citizenship you know, I mean, what is it mean to be a citizen i mean, is it you know, AP US history, right? But everybody says that the gold standard for history classes in high school in America is AP US history. You know, it’s like less than a class period on the Constitution. I mean, the number of adults that can explain to you anything about the Constitution is, you know, like you’re lucky if it’s one in 50. And so we give lip service to preparing kids for citizenship, but I don’t think it’s happening. And yet if kids suddenly start proactively identifying opportunities, challenge problems in their community and learn that they can take their own talents and their ability to learn and their ability to just keep going at it with support from their community and they can make a positive difference in their world. That to me is the most important citizenship lesson we can deliver to our kids.

Will Brehm:  37:54
Well, Ted Dintersmith, thank you so much for joining Fresh Ed and best of luck promoting the book.

Ted Dintersmith:  37:58
Well, thank you, thanks for having me and I really love what you’re doing so I hope we get a chance to meet in Tokyo and I’m just cheering you on from afar.

Will Brehm:  38:06
Thank you so much

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