I have just gotten around to reading the Court of Appeals decision in the virtual school case, Johnson, et al. v. Burmaster, et al. I did, however, get an earful about it from a lawyer for some of the parents over lunch today.
Much of the public discussion around this case has revolved, or will revolve, around whether it is good policy to provide parents with this type of educational option. Apparently the kids at the Wisconsin Virtual Academy do fairly well and there seems to be little doubt that WEAC's opposition to it involves more than a little self interest.
But these weren't the issues before the Court. It was charged with deciding whether state law permits these schools, and not whether or not they are a good idea.
There were three issues. The first two had to do with where the school was located and where the children attend. State law requires that the answer to both questions be the district that chartered the school, Northern Ozaukee. The school's administrative offices are located there but its teachers work from home around the state and the students, who do their work at home, also live in various locations. The Court of Appeals held that the district is, literally, located wherever its teachers live and that its students attend at wherever their home happens to be. You can read the statute that way, but that reading is by no means compelled. It seems just as plausible to say that the school is located, and children attend, at the location where the administrative offices are located.
A more difficult issue was presented by state law requiring that any person teaching in a public school be a licensed teacher. Although certified teachers do supervise and monitor and participate in instruction, I think some of the public commentary that I have heard overstates their role. Most of the work is done by students in association with their parents.
Does that constitute "teaching" in a public school? I can imagine a court concluding that there is some point at which so much responsibility is left to parents that they have essentially come to fill the role of a teacher and, while they can do this if they are home schooling, they cannot do it if their child is enrolled in a public school.
But that's not what the court did. It referred to the definition of teaching adopted by DPI in the state administrative code. Teaching, according to DPI, is "improving learning by planning instruction, diagnosing learning needs, prescribing content delivery through classroom activities, assessing student learning, reporting outcomes to administrators and parents,and evaluating the effects of instruction."
My initial reaction to this is that it is an odd definition. Teaching does include all of these things but the definition seems to leave out the one thing that parents in the virtual school seem to have the primary responsibility for and that is implementing the instructional program that has been planned and prescribed by certified teachers and that is assessed and evaluated by certified teachers.
But putting that aside, what is stranger is that the Court of Appeals seems to think that the statute is violated by the mere fact that parents engage in activities that can be called teaching without regard to whether those activities are undertaken under the direction of, or in support of the efforts of, certified teachers and without regard to how much teaching is delivered by parents and how much is delivered by certified teachers.
On the court's analysis, any school with robust parental involvement and assistance in delivering instruction would be in violation of the statute. The court recognized this potential, but said that if the statute is capable of such a construction the legislature should fix it.
For those of you who have or will read the opinion, I know that the court cites a paper I wrote in support of the proposition that courts shouldn't rush in to solve problems that the legislature had ignored, but, while I am happy that they accept the principle (and flattered that they would read my work), it is not clear that they applied the principle correctly. The fact that their reading of the statute might warrant a conclusion that "all public schools violate the statute" does not mean that they should "fix" the statute. It suggests that their reading is wrong.
It seems to me that they ought to have concluded that a parent assisting his or her child is not a teacher or that the statute forbids, not all teaching by parents, but the usurpation of the teacher's function by the parents. That would require the articulation of some standard for determining whether there has been usurpation and the application of it to the particular facts of this case. That didn't happen.
Had it happened, the court may still have concluded that there was still too little teacher and too much parent for a public school. But, in making that determination, it would have had to explain when parental involvement becomes teaching and that would have given WIVA an opportunity to restructure its program and continue in operation, rather than simply shutting it down and leaving its students outside the virtual classroom door.
Update: Lawyer blogger Mike Plaisted says that criticism of the breadth of the court's analysis is "typically nuts" noting that the court disavows any suggestion that it is illegal for parents to help their kids with their homework. He's not responding to me and I never said that, but it underscores the problem with the way in which the court did this: Why isn't it illegal given the way in which they conclude that the parents here are "teachers?"
The court suggests that the problem is that they are not permitted to do help, but are required to help in order for the school to operate. They don't mean that. It can't be unlawful for a public school to demand parental involvement in tasks that might come within their broad definition of teaching.
I am sure that what they wanted to say that WIVA places too much responsibility on the parents and that there is a point at which a parent can be doing so much that he or she becomes the teacher. I can buy that, but how are we to decide that however much responsibility the parents exercise here is too much? Is it a function of face time? Does it depend upon who makes what decisions? After all, all of the things that are set forth in the admin code's definition of teaching seem to have been controlled by licensed teachers.
In any event, if they really meant to say that the mere exercise of teaching functions by parents is not illegal but, in this case, the parents were asked to do too much, it would have been helpful to articulate a standard and, probably, would have required remanding the case back to the trial court because there were apparently factual disputes over how much parents are involved and how little teachers are involved.
That would not have resulted in the precipitous closing of the school.
It also may have given WIVA a chance to change what they do to come into compliance with whatever the standard happens to be.
That would not have resulted in the precipitous closing of the school.