Making Law and Policy for Public Pedagogy: Emory Symposium on Digital Publication, Undergraduate Research, and Writing, Atlanta, GA, 29 February 2013

I’ve blogged here the Prezi and the notes from a presentation I made at the Emory Symposium on Digital Publication, Undergraduate Research, and Writing.

Thank you to  The Emory College Writing Program, Emory’s Office of Information Technology, and Emory University Libraries, for inviting me here today. In keeping with a general desire to avoid the standard “sage on the stage” format and to prompt discussion rather than boredom, I’m going to offer a brief position statement outlining a general approach for responding to and dealing with regulatory issues that may arise as colleges and universities go public with pedagogy.

Then I’ll walk through two examples that help to elaborate how that approach might shape decisions in matters that involve FERPA and public relations. I have written about fair use and copyright in the pedagogical context elsewhere, in particular on Hybrid Pedagogy and TECHStyle. For that reason primarily, although I’m happy to answer questions about intellectual property law during the Q&A, I’m not making that part of my prepared remarks today. [new frame]

In addition to thanking the symposium organizers, I also want to acknowledge Moya Bailey, Tyanna Herrington, and Audrey Watters. In one fashion or another, they and their work are represented in or have influenced my talk today. [new frame]

The Approach
Interpretation and application of the law within a higher-educational setting can and should take into account factors that distinguish institutions of higher learning from other–especially commercial–regulatory contexts.

Why? Because we should presume laws–especially laws specifically targeted at educational institutions–are designed to facilitate, or at the very least not interfere with the important work of the classroom.

Academic freedom has long been a core social, cultural, and political value in the US, and there’s no reason to presume a law is intended to infringe upon that freedom unless there is a clear indication of such intent.

In short, policymakers and legal decision-makers at colleges and universities need to stop confusing the higher-education context within which they work with perhaps more familiar and well-documented interpretive contexts, here again I’m thinking of commercial contexts in particular.

They also need to realize the dual teaching and research mission of the university is best served by an interpretive stance that views facilitating effective pedagogy and free and open public discourse–as opposed to simply avoiding litigation at all costs–as the primary goal.

Although technology has changed changed how we teach, I do not think it has fundamentally altered what we are trying to accomplish. The tools and methods evolve, yet in many cases the pedagogical imperative–to help our students acquire the knowledge, habits of mind, and skills they will need to succeed emotionally, economically, and professionally–remains the same.

And so, as that pedagogical imperative prompts us to take our pedagogy public in the first place, so should it also continue to ground our understanding and application of the institutional and legal regulations that govern our work as teachers.

The Application
So how does this work in practice? What does it mean to account for the educational context when we are applying and interpreting the law, or crafting policy at the institutional level? I’m going to try and answer these questions by walking through a couple of hypothetical situations. The first involves a FERPA issue. The second addresses a public relations concern that I’ve heard raised in a few different contexts. [new frame]

Here is the hypothetical: Dr. A would like students in her first-year composition class to keep public blogs as part of their work in the course. She would also like them to create publicly-accessible e-portfolios as their final project. She is, however, concerned requiring her students to make their work public may violate the Family Educational Rights and Privacy Act, or FERPA.

According the U.S. Department of Education, FERPA requires that “[g]enerally, schools must have written permission from the parent or eligible student in order to release any information from a student’s education record.” In essence, a college or university violates FERPA when it does three things: 1. makes a disclosure, 2. involving a student’s educational record, 3. without the student’s consent. The purpose of the law is not to prevent disclosure of students’ information under any circumstances. Rather, the law intends to give control over disclosure of their educational records to college and university students themselves.

Any second-year law student worth her salt should be able to poke holes large enough to drive a train through in the argument Dr. A’s pedagogy would violate FERPA. I would go so far as to argue it’s not FERPA, but rather the policy behind it–that is, protecting student privacy–that should be the real concern here.

And why is privacy important in a pedagogical context? For one thing, it gives students a safe space in which to fail without having to worry an employer or journalist twenty years down the line won’t find the remnants of her FYC blog and ruin her prospects. Let’s set aside for the moment everything that is wrong with holding people accountable for risks they took in their FYC class in spite of all the promise they later demonstrate as potential employees or political candidates. It is possible here to balance the interest in student privacy with the pedagogical value of public work.

Give students the option to work under a pseudonym, and give them control over what happens to their work when the course or even the particular project is done. And then provide them with both time to develop their ideas and feedback on their work in a relatively private space before they make it public. And also provide them with the information they need to make an informed choice about using a pseudonym and keeping their work public–or not–after it has been reviewed and evaluated.

In taking this very common sense approach, one grounded in good pedagogy and a concern about students rather than fear of litigation, institutions can avoid most most if not all potential FERPA pitfalls. In further support of this claim, I point everyone to Kevin Smith’s excellent post on the HASTAC blog–Smith is Duke University’s Director of Copyright and Scholarly Communication–that gets deeper into the legal analysis and ultimately offers very similar advice. [new frame]

Public Relations
This second hypothetical involves a scenario that caricatures situations I’ve actually had described to me a couple of times, and one as well in which confusing educational and commercial contexts is especially likely and problematic.

The same Dr. A from the hypothetical above asks her students to blog about current events of particular importance to them within the campus community. One of her students writes a well-researched, well-argued, and absolutely scathing post about the Board of Regents’ recent move to force the university’s very popular chancellor to resign. One of the wealthy and generous alumni who worked behind the scenes to orchestrate the chancellor’s resignation–and who is depicted unfavorably in the student’s post–calls up the acting chancellor and threatens to withhold future donations if the post isn’t taken down. What does the acting chancellor do?

I would like to argue that, regardless of whether the university is a public or private institution, the correct response in this hypothetical is to politely tell the rich donor that under the law the student is permitted to publish pretty much anything short of libel, and there’s really nothing the school can do. Even if the blog is hosted on the institution’s server, the institution should not make access to its infrastructure dependent upon faculty and students using that access only to publish nice or neutral things about the institution and its policies. It is true that students will more likely than not be leaving college or university for workplaces in which their speech and behavior can and will be closely circumscribed by their private–most likely corporate–employers. Nonetheless, most if not all of us in this room can probably agree curtailing academic freedom and public discourse is simply not what institutions of higher learning should be about.

And this leads me to my closing critique of the turn toward “branding” within academia. Increasingly the concern with institutional “brands”–as opposed to concern with their academic reputations–seems to drive institutional decisionmaking. “Branding” is an explicitly commercial concept. It depends upon capitalization–in the form of goodwill represented by the brand–of the alienated labor of “consumers” and “employees.” Trademark and unfair competition jurisprudence has evolved in the highly specialized discursive field of commercial speech. As a legal matter, cultivating one’s brand necessarily involves closely monitoring and if necessary curtailing that speech. To import wholesale the concept of the “brand” into the non-profit higher-education context is to create a dangerous hybrid, one ill-adapted and potentially poisonous to the environment within which it evolves. What I hope I’ve been able to do here today is remind everyone of a much more suitable and more productive conceptual framework for thinking through the costs, benefits, and potential regulatory consequences of institutional action and policy. [new frame and final frame]