Why is Justice Partisan?

I remember when I first voted in Texas. The most striking thing about the Texas ballot is the judges. A typical ballot may include local representatives, city council, state reps, and a couple of national races. But the ballot is dominated by 40-50 judges in courts you’ve never heard of. Libertarians, Republicans, Democrats, and even the occasional Green Party justice. Coming from Colorado and Massachusetts, I was confused. Why am I electing a judge in a court I’ve never heard of whose name I don’t even recognize? Today, I’m reminded of such strange practices in American democracy. The following are some random thoughts sparked by recent news on the Supreme Court.

On Tuesday, the Supreme Court announced its ruling on Trump’s “travel ban.” Though a case against the president’s ability to limit entry into the United States on national security grounds was always going to be an uphill slog, this particular president had seemed to make it much easier by constantly, publicly insisting that his “travel ban” was an intentional restriction on Muslims to enter the country. This, of course, is unconstitutional. Even the president cannot exclude individuals entry to the country on the basis of race or religion. But the ban itself had been reworked (and then reworked) sufficiently that, apparently, those intentions were sufficiently concealed for the majority. Nonetheless, Justice Sotomayor in her dissent compared the ruling to the Korematsu case of 1944, upholding President Roosevelt’s internment of Japanese citizens. What is striking to me is that our political polarization appears mirrored within the rulings of the Supreme Court.

Unfortunately, every 5-4 decision in this court is going to recall the unprecedented power grab orchestrated by Mitch McConnell when he denied Merrick Garland a hearing, following President Obama’s nomination, and then repealed the filibuster in Supreme Court nominations — effectively eliminating the minority’s power to protest. The fact that these 9 justices exercise so much power for so long makes the process of nominating them incredibly politically charged. With Kennedy’s announced retirement and the Democrats promising retribution for Garland, the politics of the court will only get more ugly.

And yesterday’s decision on public-sector unions has me feeling a bit desperate. I remember Samuel Alito’s nomination hearings. He, more than any other justice I remember, was responsible for introducing stare decisis into the common lexicon. Maybe that’s because he said so little else of substance when pressed on how his political views would inform his judgeship. At any rate, his majority opinion — which, by the way, will impact teachers more than any other sector of the workforce — is remarkable for overturning a 40-year old precedent that had held that agency fees were warranted in the case of unions. Alito’s argument is summarized by Amy Howe at Scotus blog. I excerpt here:

Stare decisis is “at its weakest,” Alito reminded his readers, in cases involving the interpretation of the Constitution, “because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.” Moreover, he added, the doctrine “applies with perhaps least force of all to decisions that wrongly denied First Amendment rights.” Because “[f]undamental free speech rights are at stake,” Alito concluded, there are “very strong reasons” to overrule Abood.

The free speech rights at issue here have to do with the way money is used to lobby governmental entities (who, in the case of public sector unions, also happen to be management). Political conservatives have consistently worked to align speech with money, a view no more clearly expressed than in the Citizens United case. I argued against some early opinion pieces in this direction on this blog many years ago. It’s very troubling when the First Amendment freedoms are identified with financial power because nothing is less evenly distributed in today’s United States than money. But, as a fundamental right of our democracy, free speech must be a right that all have access to exercise equally. When money is speech, that simply will not be the case.

At any rate, back to stare decisis. The reason the courts defer to precedent is so that they do not undermine their credibility and also maintain predictability in terms of both the perception and impact of their decisions. One wonders why these concerns are not pressing in the case of Aboos. As Elena Kagan writes in her dissent (again from SCOTUS Blog):

Kagan complained that there “are no special justifications for reversing Abood”: ”To the contrary,” she argued, “all that is ‘special’ in this case—especially the massive reliance interests at stake—demands retaining Abood.”  Kagan stressed that the Abood ruling “is deeply entrenched,” as over “20 States have statutory schemes built on the decision” that “underpin thousands of ongoing contracts involving millions of employees.” Kagan criticized the majority for acting, in her view, “with no real clue of what will happen next—of how its action will alter public-sector labor relations. It does so even though the government services affected—policing, firefighting, teaching, transportation, sanitation (and more)—affect the quality of life of tens of millions of Americans.”

This decision will surely be devastating to current Police, Fire Fighter, and Teacher unions. Private-sector union membership has been decimated. Now public-sector union membership will probably also decline. It’s ironic that the death blow to unions has been delivered in the name of the First Amendment, given that unions are intended to provide a voice for workers at the table with management.

I guess I would search for ways to make this more palatable to myself, but I just don’t trust the judicial process much anymore. It reeks of partisanship. And with Kennedy’s departure, I’m afraid the worm will finally turn. The Robert’s Court will begin a long period of very conservative rulings that will shape culture and law for many, many decades. After Trump chooses his nominee and congress stamps it, the court will have a solid 5-vote majority of conservative jurists with Clarence Thomas, the oldest of the bunch, only seventy years old (Kennedy is 81). While Roberts has shown his willingness to break from the conservative block in several high-profile cases and Gorsuch has hinted that he might be willing to do so, Alito and Thomas have voted together 94% of the time. Incredibly, the conservative consolidation of the highest court will occur at a time when the public opinion is moving in the opposite direction. It looks like justice will only get more political in the years to come.

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Normative Demands in OER and the CARE Framework

Back in March, three academics published a manifesto of sorts, called the CARE Framework. In case you are unfamiliar, they have a web page here that explains the framework. I followed a number of the early reactions with interest. You can read the news article from Inside Higher Ed; David Wiley posted a response here that revised an earlier piece that had received some critical feedback. More recently, OEC Executive Director Paul Stacey refers to the framework in a piece in EdScoop on OER partnerships with publishers. In the past month, I’ve participated in a couple of webinars with the OpenStax Institutional Partnership and CCCOER where the framework was a central point of discussion. Though the topic surfaced back in March, it has shown a persistent relevance to the OER community. (As an aside, this was the issue that inspired me to fire my old blog back up. I wanted to comment, but I had more to say than fit into a tweetstorm or blog comments.)

The authors have presented the framework as a model for stewardship to achieve sustainability in OER. The topic of sustainability has been a central concern for the OER community. Typically, sustainability discussions surround financial questions, such as how to support an OER program at your college, how to develop and maintain platforms for delivering content, and more pointedly, what to do once the grant funding dries up. In contrast, the CARE Framework’s approach to sustainability emphasizes norms or standards of behavior for community members. It’s a call to stewardship that links values with sustainability.

The norms or values articulated by the CARE Framework are quite helpful. It identifies four categories of action that OER stewards ought to engage in:

  1. Contribute: “OER stewards actively contribute to efforts, whether financially or via in-kind contributions, to advance the awareness, improvement, and distribution of OER.”
  2. Attribute: “OER stewards practice conspicuous attribution, ensuring that all who create or remix OER are properly and clearly credited for their contributions.”
  3. Release: “OER stewards ensure OER can be released and used beyond the course and platform in which it was created or delivered.”
  4. Empower: “OER stewards are inclusive and strive to meet the diverse needs of all learners, including by supporting the participation of new and non-traditional voices in OER creation and adoption.”

Each of these categories include a range of possible activities that would promote the main objective. For instance, to contribute to OER a steward may actually write instructional resources or design platforms, but they might also give money to support the cause. Similarly, OER stewards should promote inclusion and diversity (this is part of empowerment), but a steward may accomplish this in a variety of different ways. Again, the framework states that OER stewards ought to release their work for public use, but also emphasizes that OER publication ought to be released in such a way that it is able to be revised, remixed, and redistributed by others.

As a philosopher and OER advocate/administrator, I am particularly interested in specifically how Petrides, Levin, and Watson envision their framework to be interpreted. When they make normative claims, how do they imagine these claims ought to operate in the community of open education? By setting up a framework that defines what it means to be a good OER steward, they invite judgments about bad stewards as well. So, I want to know how the framework authors imagine we, as a community ought to handle such questions.

To be clear, it’s important for any community to articulate standards of behavior. Frequently, such standards are set through practice and without reflection. So, it’s really helpful to engage in a theoretical dialogue around standards of behavior — this is the heart of political philosophy. Even more, for the OER community, it’s important that these standards pertain to the sustainability and vitality of the resources themselves. Questions surrounding the durability of the commons – a catch-all designation for the body of openly licensed resources – turn on such community standards. As I understand it, this is one of Eleanor Ostrom’s chief insights, namely, that there need not be any “tragedy” of the commons when the community that uses the commons shares values and practices that sustain it (see particularly Jim Luke’s insightful piece). Indeed, this insight suggests that Petrides, Levin, and Watson were right to tether values to sustainability.

However, when I probe the framework for answers to my questions, I find it lacking. Let’s start where the rubber meets the road, in the section titled “Applying the CARE Framework.” The authors start:

The values expressed by the CARE Framework support a hopeful vision for the future of OER and education, positively impacting not only issues of access and affordability, but also the seemingly intractable issues of equity and inclusion.

Here, the authors claim that the framework articulates a “hopeful vision” by promoting the values articulated above. A hopeful vision sounds like an ideal that community members should strive toward. Such an ideal could be promoted as the sort of praiseworthy and excellent practices that exemplify what it means to be an outstanding member of this community. This may or may not require sanctioning bad practices. It may recognize that failure to live up to the ideal is common. The ideal stands as a goal, perhaps even a goal that may be unrealizable by some in the community. What’s important about the goal is that it orients and directs behavior of community members so that they work together rather than at cross-purposes.

But the next sentence suggests this interpretation may not be correct:

Thus the CARE Framework is meant to be applied by all individuals, organizations, and institutions who share a stake in the field’s long-term success and sustainability. This includes individuals who create or adapt OER for their own teaching and learning purposes; nonprofit OER publishers and libraries; commercial OER publishers; as well as educational technology vendors looking to incorporate OER into their products or services.

Here, the authors state that all individuals should “apply” the framework (equally?). Moreover, the way the four categories are articulated (as a conjunction: contribute and attribute and release and empower), the authors suggest that each individual ought to apply every aspect of the framework (again, equally?). They even list different roles that are responsible for applying the framework. But it’s still not clear to me how this is applied to real-world positions in the community.

It’s easy to imagine people who may feel part of the OER community (or aspire to be part of it) but who simply don’t have the resources or ability to participate fully in all four dimensions of the framework. Imagine a librarian who doesn’t see himself as a content-creator and serves a relatively homogeneous population. This person may not be able to “attribute” conspicuously or “empower” non-traditional voices. Or, we might imagine someone building some great homework tools for certain subjects. They might “release” that content, “contribute” and “attribute” where possible, but their reach might be limited by focus and resources (whether this is a commercial, non-profit, or hobbyist endeavor). More importantly, they may not control how their content gets embedded into other platforms and courses as used by instructors. They may even prioritize ease of use, clean design, or instructional benefit at the cost of conspicuous attribution or easy, non-technical remixing. And, if the project is small, it may not be possible to ensure that they are “empowering” others with the OER tools they are creating. More pointedly, what about the adjunct instructor (more than half of all higher ed instructors) who wants to save her students money by using OER but has no time or support to worry about “contributing” and “releasing” content. She may practice good attribution and try to empower her students, but when measuring herself against the criteria of the framework, she may feel like she can’t live up.

I don’t want it to seem like I’m splitting hairs or picking hard cases just to stir the pot. I’m also not insisting that every member of the OER community be assessed by the same standards. Quite the contrary, I want to highlight that without clarifying what it means to apply these values when they are at odds with the circumstances and demands of the real world of education, the authors have set up a framework that is open to misapplication. By framing what it means to be a good steward, the authors invite judgments about bad stewardship. And as long as that judgment is possible, it will be possible for good-faith members of the community to feel excluded or to be in fact excluded on the basis of this framework. This is not hypothetical – bad reviews and moralizing whispers can sink a start-up OER platform, tenure review, or new hire.

What I’d like to see is a recognition that each of the four practices actually identify a class of actions on a spectrum. Contribution, attribution, release, and empowerment can all be accomplished in a variety of ways with varying degrees of impact. This ought to be explicit. By recognizing this, the authors ought to make it clear that satisfying each of the four pillars of the framework is not a simple yes or no but a matter of degree.

Additionally, I would like the authors to be clear about whether and to what extent the framework sanctions bad behavior. Is a member (or aspiring member) of the community a bad steward if they fall below a certain threshold of participation on one or more of the dimensions of the framework? What is that threshold? Can a steward focus their energies on one or two dimensions, while ignoring the others? Or should every OER user make a good-faith effort to advance every dimension of the framework, recognizing that limited resources may demand focusing on one or two? Is it possible to just demonstrate some effort along each dimension as long as one exceeds some threshold along one or two? Again, what threshold? In short, I want the authors to be explicit about how the framework ought to inform our judgments in practice. The framework is clear about what sorts of practices are praiseworthy, but it doesn’t give us any guidance to decide which actions are blameworthy, which are permissible but neither blameworthy nor praiseworthy, and which are impermissible. And yet, just these sorts of judgments are invited by the framework. Without clarification, I fear the framework could do harm as much as it does good.

Blogging again

I started this blog when I was writing my dissertation in 2006. At the time, I wasn’t on social media, but I found that I was emailing a group of friends and family frequently with links to articles I was reading. Eventually, I thought I would save them the spam and just start writing a blog. I blogged somewhat frequently for a year and a half here at this site. And then I went on the job market and had a lot of pressure to finish the dissertation. The blog fell into the background, I got a job, joined Facebook, and suddenly felt like I had a new platform for sharing articles and thoughts.

In the meantime, I started blogging off and on for an online magazine, called Elephant Journal. That was a fun time. I had a much larger platform and began to use Twitter to converse with people in environmentalism/yoga/buddhism circles. But this was only tangentially related to my interests and my energy returned to Facebook.

Unfortunately, I realized much too late how Facebook was a terrible platform for developing and sharing ideas. Not only did I find myself in heated political debates with close friends — which was sometimes illuminating, but mostly frustrating — but Facebook makes it almost impossible to retain any virtual memory of what you’ve posted and how your thoughts have developed over time. They have no archive of old posts that isn’t cluttered with “activities.” The search tool is miserable. And, so, even those more interesting and illuminating conversations are lost to the ether. More importantly, Facebook is draining — of both time and energy.

Recently, I have become engaged in the Open Education community, reactivated my Twitter account, and started thinking about blogging again. The final straw was a month or so ago when I wanted to comment about something on Twitter. It required far more than 280 characters, so I started a tweetstorm. But then I wanted to edit and rearrange my tweets. By the time I posted the thread, it was missing tweets and the formatting was all off. I tried again. Failed. Tried a third time … and then I gave up. I realized it was the length of thought that required a blog post.

Coming back to the blog I see all of these old posts from 2006 and 2007. But what’s nice about them is I hear my voice and I read my thoughts. There are times in the intervening years when I would have benefitted from reminding myself of those thoughts. There are some good posts here and I stand by them. It will be interesting to see where this goes, but I think I’m writing this time more for me and for chronicling my thoughts than anything else. A little lesson: the blog format remains as a viable form. It’s useful in ways that other platforms just aren’t. So, I’m back. I may even keep it up this time.

Dear Baseball Gods: I’m not gloating

Look, the entire season I say nothing. I prayed diligently and quietly throughout the entire “drought” of .500 ball while the Yankees became the hottest team in the American League.

But Beckett just pitched a complete game shutout, saw only 31 batters on the night, 4 hits, no walks on 108 pitches! A thing of beauty must be recognized. Surely the baseball gods understand that.

Elite Colleges and Affirmative Action

Following up on some of my previous affirmative-action posts, I found this op-ed in the Boston Globe particularly interesting. The op-ed centers around some new research of the most highly selective Universities in the US. What they find is that roughly %15 of white students at these Universities fall below the institution’s minimum admissions standards. Contrary to the story propagated most recently by the Supreme Court, white students who fall below the minimum standards are twice as likely to be admitted to these Universities than their minority counterparts.

This evidence clearly discredits the myth of the over-qualified white student who is denied acceptance to the most selective Universities because of racial quotas. What it demonstrates is that the much older system of affirmative action, namely, the good ol’ boys network, is still the most powerful system of disenfranchisement at elite colleges.

Of course, this kind of empirically driven argument seems incapable of convincing staunch conservatives, who find Justice Robert’s pithy logic–“the best way to end discrimination based on race is to stop discriminating on the basis of race”–more compelling.

Spam like weeds

Sorry, been gone for a while. When I checked in today, I found that a spammer had infiltrated akismet and left a bunch of porn links in my comments. I block all comments with four or more links, but this spammer had left 15 comments, each with one link in them. And all of the comments appeared under an article I had written on the Sophia Copola movie Marie Antoinette. Interesting. Anyone have any ideas about how to filter these? I am reluctant to blacklist any “real” words (by which I mean words that make sense) or any IP address.

Anyway, feels like weeding the garden. Good to see that there’s still some life in there, I guess.

The Tour

Haven’t been blogging for a while, but it’s ironic that the most recent post was on doping in professional sports because the final day of the Tour de France offers a good time for reflection on just these issues.

It is hard for me to decide which of the eliminations from the Tour were most troubling, but there are five prominent exits that were especially painful to watch: the elimination of the entire Astana and Cofidis teams (can anyone tell me why T-Mobile wasn’t forced to exit?); Alexandre Vinokourov; Michael Rasmussen; Dave Zabriske (the American time-trial champion who did not make the cut at the end of stage 8, a day when Vinokourov’s acceleration split the peloton and recorded one of the fastest average speeds ever in the tour); and Denis Menchov (the team leader of Rabobank who abandoned the day after Rasmussen’s firing).

But I have to think that this is ultimately good for cycling. Major competitors are speaking out against doping in the sport. Rabobank’s firing Rasmussen was courageous and demonstrates one way forward. Tom Boonen (who looks to have wrapped up the green jersey competition) has expressed the right sentiment when he says that he is proud to be finishing with the guys in the peloton and that “cheaters need to leave the sport.” It is really hard to argue that the top three riders do not deserve to be on the podium. They are separated by the slimmest margin in history (:31) and have a huge gap to the fourth rider (nearly 7:00). And the top-ten is a ‘who’s who’ of recent tour history.

Besides, I just love the sport of cycling and especially the grand tours that are at the pinnacle of it. Cycling is not only a test against oneself, but a test against other athletes in teams. The former is demonstrated in the time trials of the first and (for the general classification competition) effectively the last days of the race, both of which are often decisive in determining the overall winner. The latter plays itself out in both the tactics of the mountains that dominate the king of the mountain competition and the tactics of the bunch sprints and breakaways that lend glory to a rider or advance his standing in the points competition. When a guy is leading one of these competitions, he gets to wear a jersey so everyone on the race course can clearly identify the leader on the road. And these classifications really demonstrate the versatility of the sport, highlighting differences in capability. Ultimately, it’s both a political contest and solitary one.

I like to watch this kind of competition and I hope that it stays around for a long time.