I’m quoted near the top of the article:  “To the extent that school district resources are used, then I think it’s fair to ask whether the district should share in the proceeds.”

The article has provoked an impressive volume of comments, many from teachers taking offense at the thought that a district would stake a claim to any earnings.  One called the idea “creepy.”  A blogger called me a “greedy – - – - – - -.”

A few comments took a different perspective, questioning the ethics of teachers either selling or purchasing lesson plans.

When the reporter contacted me, I said the issue had never come up in any of my interactions with superintendents, or anyone else.

I’m careful with words and meant nothing more or less than what the reporter faithfully quoted me as saying:  it’s fair to ask what would be a fair division of proceeds.  I also noted that initiative and resourcefulness deserve to be rewarded.  So it might be fair for a teacher to keep all earnings in at least some cases.

I mentioned to the reporter that higher education institutions have already wrestled with and resolved similar issues, then today looked up one example of a university policy.

The State University of New York Intellectual Property Policy provides, “Generally the members of the staff of the university shall retain all rights to copyright and publish written works produced by them.”

It goes on to say,

Staff members will be expected not to allow the privilege to write and retain the right to their work to interfere with their university duties. In those cases where an author desires the help of university facilities, arrangements should be made through the administrative staff of the author’s institution in advance with respect to the assistance which may be appropriately given and the equity of the university in the finished work.

The SUNY policy also makes an exception for cases where persons “are employed or directed within the scope of their employment to produce specific work.”

In those cases, “the university shall have the right to publish such work without copyright or to copyright it in its own name.”  Also, “The copyright will also be subject to any contractual arrangements by the university for work in the course of which the writing was done.”

The plain language of the SUNY policy seems reasonable.  But some aspects do require interpretation.

For example, one might interpret the preparation of lesson plans and lecture notes as something faculty are employed or directed to produce “within the scope of their employment.”  But my understanding is that, within SUNY, such items are generally deemed intellectual property of the employee.

The decisions involve school reimbursement to families making unilateral special education placements, strip searches of students under suspicion of drug possession, and requirements for services to English language learners.

Reimbursement for unilateral private special education placements
In Forest Grove School District v. T.A., a 6-3 majority of Justices ruled that federal law authorizes reimbursement for private school tuition, even when a child has never received special education services from a public school.

The New York Times explained, “The issue in the Forest Grove case was whether a 1997 amendment to the Individuals with Disabilities Education Act (or IDEA) prohibited private-school tuition reimbursement for students who never received special-education services in public school.

The plain language of the amendment would seem to prohibit families from obtaining reimbursement for a unilateral private placement, unless they have given public school services a try.

Dissenting from the majority opinion, Justice David Souter compared the majority’s conclusion to a boy disregarding his mother’s admonition that he may go out and play after his homework is done:

“If the mother did not mean that homework had to be done, why did she mention it at all, and if Congress did not mean to restrict reimbursement authority by reference to previous receipt of services, why did it even raise the subject?”

The majority opinion seems to drain the 1997 amendment of any significance. But it does raise a compelling question, arguing,

“It would be particularly strange for the Act to provide a remedy, as all agree it does, when a school district offers a child inadequate special education services but leave the parents without relief in the more egregious situation in which the school district denies the child access to such services altogether.”

Justice Souter replies by citing parents’ access to due process hearings and appeals, all with specific and tight timelines. This raises what may be the most alarming aspect of the decision for school districts.

Not only did the parents not give the public school special education services a try, they placed their child in a private program without ever appealing the district’s initial denial of a disabling condition.

It would be irrational to absolutely require the use of public school services before private reimbursement can be obtained – it would give districts a financial incentive to simply deny services when confronted with a potentially costly private placement.

But the majority decision removes incentives for families to cooperate with districts and to follow the steps spelled out in law for how disagreements with schools are to be resolved.

Strip searches
In Safford Unified School District v. Redding, the Court ruled that public school officials violated the Fourth Amendment privacy rights of a 13-year-old girl who was strip-searched for suspected drug possession.  But the Court also found that the school officials are entitled to qualified immunity from legal action.

In this case, Justice Souter summed-up the conclusion of the 5-4 majority:  “the content of the suspicion failed to match the degree of intrusion.”  The decision clarifies the standard for when strip searches are permissible and does not prohibit them.

Reactions from school groups were mostly positive, saying the decision resolved confusion over what the law allows and recognized that the educators were acting in good faith.

Funding of ELL services
In Horne v. Flores,a 5-4 majority required lower courts to re-examine whether Arizona must provide more funding for its English-language learner programs.

Education Week writes, “The Arizona case is highly complex and quirky, with various state officials pitted against each other. …In many respects, it is unlikely any other state will ever reach the position Arizona is in. But that doesn’t mean the Supreme Court’s decision in Horne v. Flores doesn’t hold important implications for other states and for educators across the nation. It does.

Lower courts had ruled that Arizona had not increased funding for English language learners services sufficiently to satisfy an earlier federal court decision that the state had violated the Equal Educational Opportunities Act (EEOA).

For the majority, Justice Samuel Alito wrote,

“Both of the lower courts focused excessively on the narrow question of the adequacy of the state’s incremental funding for ELL instruction instead of fairly considering the broader question whether, as a result of important changes during the intervening years, the state was fulfilling its obligation under the EEOA by other means.

An interesting facet of the decision is that it cites the No Child Left Behind Act as signifying a “dramatic shift in federal education policy.”  This aspect of the majority’s rationale could have implications for other cases which involve disputes over funding:

“Reflecting a growing consensus in education research that increased funding alone does not improve student achievement, NCLB expressly refrains from dictating funding levels.  Instead, it focuses on the demonstrated progress of students through accountability reforms.”

More information on all these cases is available through Education Week’s School Law Blog, which is accessible without a subscription.