The book was the most thorough examination of the results of efforts to give mayors control – or at least strong roles – in schools in dozens of cities across the United States. And there was something in it for pretty much everybody – supporters of mayoral control focused on conclusions about greater administrative effectiveness in such systems, critics pointed to conclusions that the impact on academic achievement had been generally small in most cities.

But Wong was in Milwaukee this week and, in a presentation to about 25 people at the Milwaukee Athletic Club, came down firmly on the side of mayoral control, including in Milwaukee. In his talk and in an interview following his talk, Wong said data that have come in since the book was written has been increasingly encouraging for mayoral control advocates.  He cited New York City as a good example of a place where mayoral control correlates with improving academic results overall and a shrinking gap in achievement between have and have-not students.

Wong said traditional systems, such as the one in Milwaukee, create fragmented decision-making, and that creates blockages to taking steps that improve academic outcomes.

“This is not a silver bullet,” he said about giving control over pivotal decisions to a mayor. “But these are the necessary conditions that would allow large, complex urban school districts to move away from the status quo.”

Mayoral control increases accountability by focusing it in the mayor’s office, while systems with multiple points of control, such as the current situation in Milwaukee, lead to playing “the blame game” and avoiding necessary steps. “If we keep doing the status quo, we know for sure it’s not going to improve much,” Wong said.

What about a proposal unveiled this week from several lawmakers and education organizations to give Milwaukee’s mayor a voice in major decisions about Milwaukee Public Schools while keeping most of the control in the hands of an elected School Board? “It will not work,” Wong said. “It continues the institutional fragmentation. It is an incremental arrangement . . . The incentives for governing remain the same.”

Wong said the concerns of critics, especially those in minority communities, need to be considered and whatever system prevails in Milwaukee needs to be one where people’s voices are heard. But that can be done effectively within a mayoral control system, he said, pointing to cities that use such steps as community boards to help make decisions about schools and to pick members of school boards.

With a governor who is a lame duck and a mayor who is running for governor , is this the best time for overhauling school governance in Milwaukee? “There is never a good time in urban school districts,” Wong said. “Nothing is easy.” But the results make it worth the struggle.

What about the fact that a choice needs to be made soon for a new superintendent of schools, given the pending retirement of William Andrekopoulos? All the more reason for the Legislature to approve mayoral control proposals, Wong said. “It has to happen fast,” he said. “They should make it effective Jan. 1.”

Wong, chair of the Education Department of Brown, was in Madison and Milwaukee for three days as a guest scholar of the Wisconsin Center for Education Research and the Robert M. LaFollette School of Public Affairs, both part of the University of Wisconsin-Madison.

How much is at stake? Included in the material was a list of how much each state could potentially receive. For Wisconsin, the figure was $150 million to $250 million.

It is unlikely Wisconsin actually will get that much. It appears there are some points where Wisconsin will score well (atmosphere for creating charter schools), and other points where Wisconsin will not do well (track record on closing achievement gaps, such as the one between white and black students).

Each state’s application will be judged by committees still being formed. The rubric assigns points to each of more than a dozen areas of interest, with a total of 430 possible points. Among the areas carrying high point potential: “Improving teacher and principal effectiveness based on performance,” 58 points; “turning around the lowest-achieving schools,” 40 points; and “ensuring successful conditions for high-performing charter schools and other innovative schools,” 40 points.

Make no mistake — this will be a competition. President Barack Obama made that point in his speech last week in Madison and Secretary of Education Arne Duncan underscored it in interviews accompanying the release of the final rules. Obama said this was much different than the usual federal program that makes sure everyone gets something. Duncan said there will be more losers than winners in the process. Furthermore, the final say on the grants lies with Duncan. Congress does not have to approve, which will reduce the interest in appeasing anybody (or everybody).

States have until mid-January to submit applications for the first of two rounds of awarding grants. That’s a big reason why Gov. Jim Doyle has been pushing for fast action by the Legislature on a range of proposals related to education. Some were approved last week, but the fate of others — the more controversial ones — remains to be seen. Still no word on whether there will be a special session of the Legislature in the next several weeks to consider ideas such as giving Milwaukee’s mayor the dominant power in governing Milwaukee Public Schools.

Is it required that Wisconsin approve mayoral control in Milwaukee to win Race to the Top money? There is nothing in the final rules that says you have to have mayoral control. But Duncan has a lot of latitude to make decisions on his judgment, and he is firmly partial to mayoral control. Doyle and Milwaukee Mayor Tom Barrett say that, as a practical matter, Duncan and the people who will score the grant applications will want to see approval of overhaul of MPS governance as a sign that Wisconsin is serious about change.

The involvement of high school students as presenters at the sixth annual Restorative Justice Conference at the Marquette Alumni Memorial Union Tuesday was one of the reasons the day-long event, attended by a capacity crowd of about 350, was a success. The conference was sponsored by the Marquette Law School Restorative Justice Initiative.

Three students from Milwaukee’s Custer High School, two girls and a boy, didn’t offer research evidence or a PowerPoint presentation. They just described incidents they have been involved in as bullies and as victims, gave their thoughts on why students act the way they do — and held the rapt attention of the audience.

All three are part of the Violence Free Zone project at Custer, run by Running Rebels, a local organization that aims to direct teens away from violent behavior. 

“I feel people are bullies because they have nothing better to do,” said Kenyonna Glass, an eleventh grader. Shanique Harvey, a senior, said kids act like bullies because they think it helps get them in with the popular crowd. Lavonte King, a freshman, said he had been both a bully and a victim. “When I get bullied, I usually go bully someone else, take my anger out on someone else,” he said.

Asked by moderator India McCanse, executive director of Literacy Services of Wisconsin, what advice they would have for parents who want to reduce the chance of their children being either bullies or victims, Shanique said, “I would have to tell a parent to get more involved.” She suggested parents take some days off work and spend the time with their children.

But Kenyonna said, “Depends on who the parents are.” For many children, the problems of their parents are a major source of their own problems, she said. At another point, she said that often, “The person who is doing the bullying is probably going through things at home.”

Lavonte said he didn’t feel he could talk to anyone in his family about problems he is having with bullying. He said sometimes he talks to his younger brother. The brother doesn’t understand, he said, but it helps Lavonte to talk to him.

Shanique said if adults in the family can’t help, there are other adults. “Every child has someone they can look up to,” she said. She said high school life is hard for many teens, adding, “They have so many opportunities, and they don’t know they have them.”

In the keynote speech of the conference, Brenda Morrison, co-director of the Centre for Restorative Justice and an assistant professor in the School of Criminology at Simon Fraser University in British Columbia, outlined the attributes of approaches that lead to justice being done with people and not to people, as she put it.

Restorative justice efforts that aim to solve problems, heal wounds and direct those who have caused problems onto better paths are underway at many Milwaukee schools and in some criminal justice settings in Milwaukee. Morrison said, “Milwaukee, you have a lot to be proud of.” She said people elsewhere should learn from Milwaukee how to develop a comprehensive citywide strategy for restorative justice. She singled out for praise Justice Janine P. Geske, a distinguished professor on the law school faculty and head of the school’s initiative.

Morrison offered the three R’s of a restorative justice program – respect for the person, responsibility for behavior, and repair for harm done . She said, “We have to be willing to get involved in each other’s lives and stand up against behavior such as bullying.” As for lawyers, she said, “There are lots of really good lawyers doing amazing work within a system that needs to move to the next level of justice.”

The conference concluded with presentation of Starfish Awards to eight Milwaukeeans for their contributions to the community. They are:

One: Obama said, “I’ve got to be honest, we’ve got to do a better job of moving bad teachers out of the classroom, once they’ve been given an opportunity to do it right.” His calls for recruiting higher-quality teachers and rewarding top teachers better didn’t get applause, but this line did. Secretary of Education Arne Duncan said in a telephone interview after the speech that this didn’t surprise him — it happens wherever the president speaks about education, he said. Raising the quality of teachers, in large part by doing more to identify quality teachers (and those who aren’t) is one of the highest, but most difficult, priorities for Obama and Duncan. And moving out the ones who really aren’t good at it is especially difficult, particularly given the defensiveness of teachers’ unions when such issues come up.

Two: His call for overhauling the way testing is done nationwide. 
He said he didn’t want to see more testing. “What we want to do is finally get testing right.” he said. This drew applause, and so did a line about getting test  results back to teachers in a short enough time to be useful. Wisconsin’s current testing regimen means students are taking the annual tests this month, but schools won’t get results for several months. This is hugely unpopular in the state, with educators arguing it leaves results almost useless to them. One of the highest priorities for a revamping of the state testing system is speeding up the cycle.

Three: His call for parents to do more to be part of the education process. ”Lifting up American education is not a task for government alone.  It will take parents getting more involved,” Obama said. (He then digressed into an anecdote about his daughter Malia struggling with tests in science, which also clearly struck a chord with the audience.) Duncan said the call for parents to do more also consistently generates warm reactions. A subject of huge importance but formidable complexity, parent involvement is getting more attention from educators across the U.S., including in Milwaukee. There appears to be a growing belief that schools can do more than simply throw up their hands when it comes to parents, and that strategies exist to lead many parents to become better allies of their children’s education.

Obama and Secretary of Education Arne Duncan, who will be with him, are firm supporters of many of the ideas being incorporated into the legislative package. Wisconsin clearly has to make changes such as these if it wants a decent chance at a share of the $5 billion in the Race to the Top money and other incentive funds Obama and Duncan will distribute over the next couple years.

It appears highly likely a special session of the Legislature will be called in November to consider the education proposals. The outcome is not clear.

There remains a lot of resistance, not only to mayoral takeover in Milwaukee but to proposals that might lead to a system for setting teacher salaries statewide that would include performance incentives. It was a big breakthrough for those seeking change when several key legislators, including Sen. Lena Taylor and State Reps. Pedro Colon and Jason Fields, came up with an alternative plan that was agreeable to Doyle. The three and several others joined Doyle in unveiling the plan last week.

But what’s a bigger card to play than bringing the president to town? There have been lots of presidential visits to Wisconsin in the last few decades, but all of them I can recall focused on either election campaigns or national issues such as the economy or health care. The White House is always very careful in picking times and places for visits and Obama’s trip to Madison now, specifically to talk about education, can only be seen as part of the campaign to push the legislators to join in supporting the reform package.

Which leads to two questions: How openly will Obama say that? Some supporters are concerned that he won’t be direct enough. And what will go on behind the scenes, where Obama is expected to meet with a variety of people, including those involved in the current education debate, out of the view of the news media and public?

On the one hand, given both the importance and the difficulty of turning MPS around, it would be nice to see more passion, more vision, and more tenacity from the person who proposes to lead the effort.  On the other hand – well, I am reminded of Woody Allen’s old quip that he would never want to belong to a club that would have him.  We might rightly suspect that any politician who wants responsibility for MPS does not really understand the magnitude of system’s difficulties.  Perhaps the Mayor’s reservations are evidence of the sort of good judgment that will be necessary for MPS’s next leader.

Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. . . . From today’s vantage point, one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.

Although O’Connor and her colleagues upheld the constitutionality of the University of Michigan Law School’s affirmative action program at issue in Grutter, her opinion reflected a belief that affirmative action programs would draw to a close at some future point.

Data released by the College Board, the organization that administers the SAT exam, at the end of August suggests, however, that the end date for affirmative action is probably still a long way off. 

Once again, Non-Hispanic whites and Asians scored significantly higher on the SAT than African-Americans and Hispanics, and the pattern of scores provides no evidence that the gap is closing.  Over 1.5 million college-bound seniors took the test, the largest number in history.

The SAT now consists of three sections — writing, critical reading, and mathematics — each of which is scored on a scale that ranges from 200 to 800.  Since April 1995, the targeted median score on each test has been 500 (rather than 450 as it was before).  Consequently, the range of combined scores is 600 to 2400, with an “average” score being 1500.  The actual average for the 2008-09 academic year was 1504, essentially the same as it was the previous year.

For the test as a whole, Asian students scored 1633 compared to 1581 for non-Hispanic whites, with most of the disparity resulting from a significantly higher mathematics score.  Other groups did not do nearly as well.  The scores of Native Americans and Eskimos averaged 1448; Hispanics, 1364; and African-Americans, only 1273.  Males of all races, who counted for only 46.5 percent of test takers, outscored females, 1523 to 1496.

Much of the discrepancy in racial performance is due to socio-economic factors that adversely affect black and Hispanic adolescents.  Low family incomes, single-parent homes, low levels of education in the family, and the lack of role models who have achieved academic success all contribute to poor test performance. For example, students of all races with family incomes of $200,000 or more averaged 1702 on the SAT; those with family incomes of below $20,000 scored 1321.  Students whose parents had at least one graduate degree averaged 1683; those who parents had not finished high school scored only 1281.

With this kind of disparity in SAT scores, only affirmative action programs can guarantee that African-Americans and Hispanics will be proportionally represented at America’s more selective colleges and universities.  Although we may reach Justice O’Connor’s sunset at some point, right now we are clearly still in the middle of the day.

The court said much else of note.  This includes that the diploma privilege “has only indirect effects on interstate commerce and regulates evenhandedly” and that “the regulation must be at least minimally reasonable.”  Id. at 8 (internal quotation marks omitted).  On the latter point, the court noted as follows: “We emphasize ‘minimally.’  The judiciary lacks the time and the knowledge to be able to strike a fine balance between the burden that a particular state regulation lays on interstate commerce and the benefit of that regulation to the state’s legitimate interests.”  Id.  (I cannot resist adding that the court allowed that “[t]he two law schools in Wisconsin are very fine law schools, doubtless among the nation’s best . . . .“  Id. at 13-14.)  The problem, according to the court, is that “we find ourselves in an evidentiary vacuum created by the early termination of the case by the grant of a motion to dismiss.”  Id. at 8-9.

While Marquette is not a party to this case (the defendants are the members of the Wisconsin Supreme Court and its Board of Bar Examiners), I expect that on remand (and any subsequent appeal) the diploma privilege will pass constitutional muster.  This is the beginning of my seventh year as dean and thirteenth as a member of the faculty at Marquette; throughout this time Marquette Law School has sought to ensure—because of the diploma privilege—that our students are especially introduced to the law and legal profession of Wisconsin.  Certainly I expect that it is not the case (to quote a “supposition” posed by the Seventh Circuit) “that Wisconsin law is no greater part of the curriculum of the Marquette and Madison law schools than it is of the law schools of Harvard, Yale, Columbia, Virginia, the University of Texas, Notre Dame, the University of Chicago, the University of Oklahoma, and the University of Northern Illinois.”  Id. at 9.  Indeed, I know it not to be the case at Marquette, and I expect that a similar thing is true at the University of Wisconsin.  To be sure, it will take a while to demonstrate all this through the litigation system, but Marquette will provide the Attorney General’s office any support that it requires in marshaling evidence.

IP is about logos, trademarks, advertising, and product distribution, and thus I constantly can relate to it when I go shopping, work in my house, drive to work, or just watch TV. IP is about technology, any kind of it, from pharmaceuticals to electronics, so I think of it when I use any equipment, think (or listen to my husband or my dad suggesting) how to improve machinery, take a pill, or just wonder why drugs and health care are so expensive in this country or what we can do about it. IP also is about authors and creative work, so I think of it when I read books or watch videos, go to a museum, or wonder which design could be the best for a new jewelry or dress. And IP is about so much more than that; no matter what you are looking at or thinking of, there is something that relates to IP.

But, as I said, IP is not just about cakes, dresses, movies, and video-games. It can be about life saving drugs, new varieties of seeds that can be pest resistant and could help fight famine around the world, cheaper and better communication for people in the globe, etc. In other words, it can be “light,” and fun (and some days I just need that), but it also very serious, and incredibly important to make a difference in many areas of business and society in general (and we all want to make a difference, or to be part of it, right?). IP is also about policy and theory, one of my hidden passions, but it can become one of the most technical and detailed laws I have ever practiced (want to know whether the book “Gone With The Wind” is in the public domain? The answer will be long while we navigate all the extensions, renewals, etc., of copyright law in the past century, and even many great IP lawyers can get lost in this sea of details).

In sum, IP is, and has, something for every one, the scientist, the artist, the business man, and the average person on the street. So, no matter how you look at it, there will be always an aspect of your every day life that has something to do with IP . . . and that is why I like it so much!

Another fundamental area where the Marquette Law School faculty is also showing important contributions to the law is the production of scholarship that results in law review articles, book chapters, textbooks, etc.  We often present and discuss these works when they are still in progress in conferences around the country with our colleagues in our areas at other schools.  Still, to facilitate even further these very important discussions, the MULS Academic Programs Committee, led by Professor Chad Oldfather, has organized two sessions of an in-house Works-in-Progress Workshop for June and July.

The June session was a great success. A group of eight of us met this past Wednesday and presented our works-in-progress, from very rough to more completed drafts of scholarship, to our colleagues participating in the program. 

 In addition to the various presenters, Professor Paul Secunda also provided participants with helpful feedback. The topics and discussion on each of the drafts were fascinating and brought us on a beautiful journey throughout many different areas of the law.

Professor Phoebe Williams opened the day by presenting a paper on “Age Discrimination as a Barrier to the Provision of Health Care,” in which she analyzes the Age Discrimination Act of 1975 and advocates for the creation of appropriate data collection and research models to effectively identify and redress those instances where advanced age is illegitimately considered by health care providers.

Professor David Papke then followed with a paper on “Law, Legal Institutions, and the Criminalization of the Underclass,” which represents one of the chapters of  a planned book on the analysis of the relationship between legal institutions and the “underclass” in the United States.

Also related to Criminal Law, Professor Greg O’Meara presented a paper on habeas corpus review for state prisoners, in which he challenges the belief, almost taken for granted after passage of the Antiterrorism and Effective Death Penalty Act of 1996, that habeas claims are ineffective.  Professor O’Meara’s paper will be part of the Conference on Criminal Appeals, which has been organized by Professors O’Hear and Oldfather and will take place at Marquette Law School on June 15-16, 2009. The paper will also be published in a special symposium issue of the Marquette Law Review.

The Workshop continued with the presentation of Professor Vada Lindsey on the wrongs of the “Earned Income Tax Credit.”  In this paper, Professor Lindsey criticizes the effectiveness of the EITC, particularly insofar as it fails to encourage saving by the working poor.

Professor Lisa LaPlante followed with a presentation that brought us to a different dimension of the law: international law. In her current project, starting from the analysis of the conviction of former Peruvian President Fujimori, Professor LaPlante considers the issue of criminal accountability for wars on terror and human rights violations by heads of state.

Professor Nadelle Grossman then brought all of us back to our classrooms by discussing her current research project: how traditional law school teaching, which is based primarily on case law, fails in preparing students for transactional practice. In her paper, Professor Grossman highlights the gap between the reality of legal practice and law school teaching, criticizes the lack of valuable materials for teaching transactional law and practice, and calls upon law school curricula to bridge this very important gap.

Next, Professor Michael O’Hear presented a draft of his article “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experience,” which he will also present at the Criminal Appeals Conference and which will be published in the symposium issue of the Marquette Law Review. In his paper, Professor O’Hear proposes a set of principles to guide the appellate review of sentence explanations in jurisdictions, such as Wisconsin, that lack mandatory sentencing guidelines.

I then concluded the day with a presentation on “The Case for a Fair and Balanced Protection of Geographical Indications of Origin,” which addresses the reasons why we should protect these “new” types of intellectual property (which refer to names such as Prosciutto di Parma, Chianti, Bordeaux, Budwar Bier, or Idaho Potatoes) and the limitations that should apply to these rights. Unfortunately, I had no time to provide tastes of the many (good quality) food and drinks I mention in my paper!

Thank you again, Professor Oldfather, for organizing such a great day of legal discourse and intellectual exchange at Marquette Law School.

The event was co-sponsored by the Greater Milwaukee Foundation, and came on the heels of a study that examined five other districts that had changed their governance.  The study was funded by the GMF and conducted by the Public Policy Forum.  We’ve posted a transcript of the event, which featured MPS Superintendent Bill Andrekopoulos, former Superintendent and Distinguished Professor of Education at Marquette University Howard Fuller, Metropolitan Milwaukee Association of Commerce President Tim Sheehy, Milwaukee School Board Director Jennifer Morales, State Representative Polly Williams, Milwaukee Teachers’ Education Association President Dennis Oulahan, and Milwaukee Common Council President Willie Hines.

You can always listen to the webcast of our event, but the evening had a revealing dynamic to it that makes for equally interesting reading.

As a long-time observer and graduate of MPS (in the interest of full disclosure, my father was also once the Superintendent here), I was particularly struck by the answers to two questions.  Is MPS, in its current form, sustainable?  And five years from now, will there have been a change in school governance in Milwaukee?  The answer to the first question was virtually unanimous.  No, it’s not sustainable.  But most of the panel also wasn’t convinced we’d see a change in governance anytime soon.  Several panelists said there is no silver bullet for fixing what ails MPS.  For those who advocate a mayoral takeover of the district or dividing MPS into smaller districts, the evening had to be a bit of a wakeup call.  It’s possible that a change in governance may come to MPS, but last week’s forum suggested that any new proposals will face a good deal of skepticism, if not outright opposition.

A Beaver Dam Middle School teacher is on administrative leave after school officials discovered a photo of her with a gun on Facebook.

In the photo, Betsy Ramsdale was training a rifle at the camera.

In an e-mail to WKOW-TV in Madison, Ramsdale said she removed the photo immediately and that she is not “interested in any controversy.”

Schools superintendent Donald Childs says a concerned staff member brought the photo to the district’s attention.

Childs says the use of the photo “appears to be poor judgment” and is unaware of any sinister intent.

So here’s the question to you, my mere blogsters, would  you fire this teacher or give her a second chance?  Is your reason a legal one, policy one, or moral (this story combines two of my great loves – employment law and education law).

Also, just another story about the increasing role Facebook is playing in the lives of people of all ages.

In somewhat of a shocking fashion, the U.S. Supreme Court yesterday ruled to permit victims of peer sexual harassment in the educational context to pursue civil rights claims against schools and school officials under Section 1983, even if they have separate viable claims under Title IX.  The decision was unanimous, with Justice Alito writing for the Court.

The case of Fitzgerald v. Barnstable School Committee grows out of allegations that “paint a grotesque picture of peer-on-peer sexual harassment at the elementary school level.” The case involves these facts:

On the morning of February 14, 2001, Jacqueline Fitzgerald, a kindergarten student, informed her parents, Lisa Ryan and Robert Fitzgerald, that each time she wore a dress to school — typically, two to three times a week — an older student [third-grader] on her school bus would bully her into lifting her skirt . . . . in addition to pressing her to lift her dress, [the 3rd- grader] had bullied her into pulling down her underpants and spreading her legs . . . .

[T]he police department ultimately decided that there was insufficient evidence to proceed criminally against [the 3rd-grader].  Relying in part on this decision and in part on the results of the school’s own investigation, [the school district official] reached a similar conclusion as to disciplinary measures.

The issue was whether Title IX precludes Section 1983 constitutional claims to remedy sex discrimination in educational settings. I had previously written about this topic in the harassment and bullying of special education children context in, “At the Crossroads of Title IX and a New ‘IDEA’: Why Bullying Need Not Be A ‘Normal Part of Growing Up’ for Special Education Children.”

Because of the holding in Barnstable, bullied and harassed students, regular and special education, will now be able to bring Section 1983 claims based on allegations of peer sexual harassment.  This means that students will be able potentially to hold individual school officials liable for permitting sexual harassment by other students.  This will add a dimension of deterrence not currently available under Title IX, which does not provide for individual liability.

This development is also important because Title IX, under Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), makes it almost impossible to win a peer-on-peer sexual harassment case.