The Shocking Testing Scandal in Atlanta

I don’t think “Bad Teacher,” the movie currently playing in theaters, is going to do damage to the reputation of teachers or education in general across the United States. It may be gross, dumb, tasteless, and a lot of other things, but it’s a movie.  People can grasp that it’s not a documentary.

But the current test-score cheating scandal in Atlanta is a different matter. It is pretty much the most disturbing and shocking single episode in American education that I can think of in the last decade. This is a case of teachers and administrators being shown in real life to have engaged in vividly discrediting educational practices. 

I heard or read often in recent years about the successes of the Atlanta public schools. Test scores had risen, the elected school board was a model case for those who opposed mayoral control of schools, and Superintendent Beverly Hall was one of the most honored and respected school leaders in the country. I remember then-MPS Superintendent William Andrekopoulos telling me several years ago what a great person Hall was, and that view was definitely in the mainstream of educators.

All of that makes the scandal that has been unfolding in Atlanta for months all the more stunning. The Atlanta Journal Constitution deserves a lot of credit for pushing hard to bring to light a sweeping culture among teachers and their superiors, right up to Hall, in which doctoring students’ test scores sheets was done routinely, almost openly, and with indifference to both the rules and to children’s actual education needs. A culture of cheating, with a partner culture of intimidation of those who might resist it, pervaded Atlanta’s school system.  Hall has resigned and is now considered highly discredited, the school district has fallen into turmoil, and criminal charges may lie ahead.

The Journal Constitution’s story about a special investigative report released by the governor’s officeTuesday, summarizes the scandal in revolting detail.

Critics have long argued that standardized testing is a bad way to judge kids and, among other problems, leads to cheating by educators who have strong incentives to show good results for their students. My guess is even few of the critics thought there was a scandal of the dimension now unfolding in Atlanta. From now on, the word “Atlanta” is going to be to debate about high stakes testing what the word “Columbine” is to discussions of student violence.

Will the Atlanta situation change the course of the movement that has made standardized testing a key part of accountability around  the US? My guess is that overall, it won’t. But it certainly should cause everyone to think deeply about how to make testing a constructive step. That includes more work on improving test security, creating climates of ethical practices around testing, and monitoring the pressures being put on educators to come up with good results.

Results on state standardized tests for Milwaukee school children may be discouraging, but at least they are, to the best of my knowledge, generally honest. I’m only aware of one real cheating scandal in Milwaukee Public Schools in the last decade or so. It involved one school a few years ago, and, while MPS succeeded in keeping most of the details from public view (it was labeled an employee discipline matter), best as I could tell, the district dealt with it reasonably well.  (By the way, speak up if you know differently, not only with MPS but any school or district.)

I used to think it would be nice if Milwaukee had Atlanta’s record when it came to rest results. Obviously, it is time to think the reverse, especially when it comes to integrity.

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Hylton System for Identifying Freehold Estates and Future Interests

Should anyone be contemplating spending part of their summer break honing their skills at identifying estates in land and future interests, I offer the question-based system below which can be used to simplify the process of identifying estates in land and future interests.  The questions can also be easily diagrammed as a flow chart for even easier use.

One begins by identifying an interest that appears to be either a future interest or an estate in land.

QUESTION 1.  Does the interest holder have a right to present possession?  If yes, then the interest is an estate, so proceed to Question 2.  If no, then the interest is a future interest, so proceed to Question 7.

QUESTION 2.  Does the individual with the right of present possession have the right to control the property and the right to continuous possession until it expires by its own terms?  If the answer is no, then the individual is likely either a licensee (like a guest in a hotel room) and thus has no estate at all, or the holder of a tenancy at will, a periodic tenancy, or a tenancy at sufferance which are non-freehold estates.  If the answer is yes, then the interest is a freehold estate, so proceed to Question 3.

QUESTION 3.  Will the right of present possession automatically terminate at some point in the future based upon the passage of time or the death of an individual?  If yes, then the estate is a “particular” estate (Question 4); if no, then it is a form of Fee Simple estate (Question 5).

QUESTION 4.  If the estate will automatically terminate in the future, then it is a life estate if the termination occurs when an individual dies.  (If the measuring life is that of someone other than the estate holder, the estate is a life estate pur autre vie.)  If the termination occurs after the passage of a specified period of time (as in one day or 99 years), it is an estate for years.  If the termination point is the end of a line of bodily descent, then the estate is one of fee tail.

QUESTION 5.  If the estate will not automatically terminate based on the passage of time or an individual life, then it is some sort of fee simple estate.  If there are no restrictions whatsoever, then it is an estate of fee simple absolute.  If it is an estate that could result in a forfeiture, go to Question 6.

QUESTION 6.  If the estate is subject to a forfeiture clause but could go on forever, will it forfeit to a third party or will it revert back to the grantor or the grantor’s successors?  If to a third party, then the estate is one of fee simple subject to an executory limitation.  If it reverts back to the grantor, then it is an estate of fee simple determinable if the restriction is in the nature of a limitation; if the restriction is in the nature of a condition subsequent, then the estate is one of fee simple subject to a condition subsequent.  (if the estate that is subject to the potential forfeiture is not a fee simple estate, but a life estate, an estate for years, or a fee tail, the same terminology applies.  Any of these three estates could be determinable, subject to a condition subsequent, or subject to an executory limitation.)

QUESTION 7.  If the interest at issue is a future interest, the first question is whether or not it accompanies a particular estate, i.e., an estate for years, a life estate, or a fee tail.  If it does, go to Question 8.  If it accompanies some form of determinable or conditional estate (like fee simple subject to an executory limitation, fee simple determinable, or fee simple subject to a condition subsequent), go to Question 10.

QUESTION 8.  If the future interest accompanies a particular estate, then the question is whether it is retained by the grantor (or the grantor’s successors) or whether it has been created for the benefit of a third party (as in O to A for life, then to B).  If retained by the grantor, the interest is a reversion.  If created for a third party, then it is some form of remainder.  If it is a remainder, go to Question 9.

QUESTION 9.  To determine the type of remainder, one asks the following.  Are there unmet conditions precedent (as in “then to A, if he is 25, and A isn’t) or is it impossible to determine the identity of remainderman (as in the heir of O, when O is still alive)?  If the answer to either part is “yes,” then the remainder is a contingent remainder.  If the answer to both parts is no, then the remainder is vested.  However, there are three types of vested remainders.  If there are no unmet conditions either precedent or subsequent, the holder of the interest can be identified and is not a member of a class including individuals with contingent remainders, then the interest is vested remainder (sometimes referred to as an indefeasibly vested remainder).  If the remainder is vested, but could be divested by some subsequent event (as in O to A for life, then to B, unless C marries one of the Obama daughters, in which case to C), then the interest is a vested remainder subject to divestment (or a defeasible vested remainder).  If the remainder is vested, but part of a class that includes members with contingent remainders (as in O to A for life, then to the daughter of A who reach age 21, when A has some daughters who are 21 and others who are younger), the interest is a vested remainder subject to open.

QUESTION 10.  If the future interests accompanies a fee simple estate that is subject to a limitation or a condition, the first question is whether the interest is held by the grantor (or one of his or her successors) or by a third party.  If held by the grantor then the interest is a possibility of reverter if the restriction is in the nature of a limitation (as in a fee simple determinable), or else a right of entry/power of termination if the restriction is in the form of a condition subsequent.  If the interest is in a third party, then the interest is an executory interest, regardless of whether the restriction is a condition or a limitation.  However, there are two types of executory interests.  If the effect of the interest is to divest a grantee (as in O to A so long as beer is not sold on the premises, but if it is, to B), B’s interest is a shifting executory interest.  However, if the restriction divests the grantor (as in O to A in 5 years), then the interest is a springing executory interest.

By using these ten questions, one can readily identify any estate or future interest, no matter how puzzling its nature might at first appear.

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How Scam Blogging Threatens the Law’s Professional Image

I first want to express my sincerest gratitude for the opportunity to appear on the Marquette University Law School Faculty Blog.   I have been a long time reader of the Faculty Blog, and what was true when I first started reading this blog continues to be true now: I have thoroughly enjoyed the quality of content posted here on a regular basis.  We have Alan Borsuk’s timely pieces on public education.  We can watch the fireworks as Professors Esenberg and Fallone debate.  And Dean O’Hear’s posts flag for us new and forthcoming scholarship by members of the Marquette community (to say nothing of his posts tracking cutting edge developments in federal criminal law).  In short, this blog has gotten it right.

Some law blogs, however, are not quite so lucky.  In fact, one trend in law blogs that has garnered nationwide attention this year is an example of blogging gone wrong.  That trend is called “scam blogging.”

Here is an account of how the scam blogging movement came to be. 

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