The Trump Card

A recent exchange following Jurgen Habermas’ 90th birthday reminded me of something I had written two years ago. The exchange is quite interesting — it confronts the limits of discourse in democracy as well as the legacy of Habermas in the face of Brexit, Trump, and the recent rise of illiberalism (particularly in the figure of Putin). You can read the initial article by Raymond Geuss here and then replies, from Seyla Benhabib and Martin Jay.

I wrote the article below in April or May of 2016 and submitted it to the NYTimes “The Stone” column. It was a long shot, but was the best venue I could think of. They said it didn’t fit or something. BTW, what a bizarre interaction that was… Anyway, the Habermas dispute reminded me of my article and I went back and read it. It stands up surprisingly well. Since then, I’ve written some stuff on no-platforming and politics. So, I’m quite a bit more sympathetic to the limits of discourse perspective. The whole thing has me thinking…


One of the most exhilarating and frustrating things about teaching philosophy to first-year undergraduate students is that it is difficult to make clear what constitutes my expertise in the subject. Of course, I know things about philosophy books and philosophical figures that my students don’t, but this is not the same thing as demonstrating expertise in making philosophical judgments.

I suppose most people have had this experience in conversations about politics where there are no clear boundaries and standards about what makes one set of beliefs better than another. It’s a sort of conceptual vertigo brought about by a contest without referee or rulebook where one is genuinely unclear what is worthy of value or admiration. It’s not obvious why we should accept one person’s view of what is politically right rather than another’s. And it’s not obvious when someone has broken the rules of political discourse. This is probably what leads a lot of people to give up and concede that nobody can be right, any person’s moral judgment is just as good as another — even though we know that this can’t be correct.

The reason for feeling conceptual vertigo, I believe, is that one arrives at judgments in both philosophy and politics only by carefully weighing competing views and interests. There is no formula for making these judgments except, perhaps, dialogue – either external or internal. Political (and philosophical) judgments are best arrived at after we allow competing interests a fair chance to state their case. This may be the purest motivation for entertaining the long “debate season” in US presidential politics.

And yet, Donald Trump’s rise to political leadership in the US Republican party seems to defy this optimistic view. Trump is not a politician who clearly articulates an ideological vision of government or embodies the most compelling political judgment. Instead, what Trump embodies, more than anything else, is power. I think this is both his appeal and his danger. And at least part of that appeal and danger can be understood by what I’m calling the Trump Card.

Aristotle was the first to codify the rules and strategies of discourse, what he called dialectic, in his Topics and Sophistical Refutations. One of the most important insights that Aristotle makes is that the rules of discourse change based on their context, including the status of the participants and their goals. For instance, the rules are different for a dialogue between a student and a teacher than they are for peers or enemies. Similarly, the rules are different if your aim is persuasion rather than truth. These rules operate in the background of every discussion, a hidden structure that enables conversation, and yet they can shift and change depending on the circumstances. This can be confusing, but it need not be.

Jurgen Habermas has done more to develop a sort of Aristotelian (by way of Kant’s transcendental analytic) articulation of dialectic in political theory than any other contemporary philosopher. In briefest form, Habermas developed “discourse theory” of political judgment. For Habermas, political positions are assessed by considering what the affected parties would claim in an ideal discourse. The basic insight is that reasons for or against any given political position are never one-sided. There are always competing interests and views. And it’s impossible to decide beforehand which views have legitimacy and which do not. In fact, the very notion of legitimacy — which rules to follow — is frequently the most hotly contested part of the debate. The only way to decide between competing positions is to introduce concrete facts and claims made by actors engaged in discourse where each side agrees to allow the other a fair hearing. The goal of discourse theory is to follow the logic of each side and allow the logic of each position to address the contested issues. After a fair hearing, one has to make a judgment that is grounded in the reasons provided by each side.

Habermas’s view obviously leaves a lot to be determined and it relies on an almost impossible ideal of impartiality, but it tells us something very important about the nature of political claims: it highlights the fact that what makes for the right decision or action in any circumstance under dispute is unclear until we allow the logic of competing arguments to play themselves out. In order for this to happen, we have to accept some very basic standards of discourse. We have to be willing to hear reasons from parties we disagree with and we have to be willing to follow the logic of their argument through.

I suspect that many people understand this basic insight. It’s probably why procedural due process and the first amendment are so dear to US political culture. It’s also probably why critics become so frustrated with the various “cards” thought to be played by traditionally disadvantaged groups: the “race card,” the “woman card,” the “microagression card.” These maneuvers are a sort of trump card in the back and forth of political discourse. In effect, they shut down further dialogue by announcing a claim so strong that it’s impossible to hear any contrary claim.

Frustration with these sorts of trump cards is real and it is probably a large part of the appeal of Donald Trump’s rejection of “political correctness.” And yet, it would be a mistake not to recognize that Trump and his supporters also play a potent card that goes beyond shutting down any particular political debate. When we pay attention to the logic of many of Trump’s rhetorical moves, we can see that what he does best is to deny dialogue, to reject even the most minimal standards of discourse. When Donald Trump refuses to answer a legitimate question, turns the tables with insult or mockery, changes the subject, makes an obviously false denial, or openly denies a former position he had held, he is playing the Trump Card. The Trump Card shuts down the very possibility of debate. The Trump Card refuses to answer to, listen to, or even acknowledge an opposing view. It refuses to put forward a position that could be open to attack. It is the sheer exertion of power, the refusal to engage.

Near the end of Ted Cruz’s campaign, when he attempted to engage some hecklers outside of a Trump rally, he experienced Trump supporters playing the Trump Card. Cruz, of course, is a master of debate, an expert at political rhetoric. But when he attempted to engage these Trump supporters in a simple dialogue, he was shut down. Trump’s supporters simply refused to respond with any sort of reasonable dialogue. “Can I ask you something?” “No” “Can I ask you something?” “No.”

When Donald Trump announces a position and then rescinds it days later or when he refuses to put forth a coherent policy position, many people see a candidate who lacks political substance. But what he lacks in policy substance, he more than makes up for in announcing a feeling of power, the sheer force of will. You can’t pin Trump down because he refuses to play by anyone’s rules but his own. This is probably clearer to Trump supporters than his detractors, which is why he does so well among people concerned about national security and national decline.

One of the problems with a political position founded on the projection of power is that once it loses power, it lacks any other foundation to stand on. As long as Trump is winning in the nomination process, beating the polls, and defying expectations, his projection of power appears to have real substance. But we should worry what will happen when that power is really tested. What lies behind it? What set of beliefs and actions really support the projection of force? Even more seriously, we should be concerned about conceding such a brazen display of rhetorical force in our political discourse. Without some basic, shared sense that other views deserve a hearing no matter how much we disagree with them, without some minimally shared standards of discourse, it’s hard to see how we can arrive at any rational judgments in political matters. And once the projection of power evaporates, the sense of vertigo will be pervasive. We will have stepped through the looking glass, where we will have lost the capacity to tell good from bad and right from wrong.


Unwrapping the Ethical Issues Around Open Wrapping

I started to write this as a typical blog post, with fairly informal language and aimed at discussions I have been following on the internet. But the article ballooned in length and, as a result, I have come to see this as more like a first-draft of a scholarly article. So, I edited the language and approach to references to be a bit more scholarly. I’d really appreciate feedback. (Word count: 6420) Thanks! 

[IMPORTANT DISCLAIMER: I am an OER Coordinator at Houston Community College. In that capacity, I advocate for the adoption of OER and I work closely with several OER courseware platform providers. This article is my attempt to think through issues that I confront in practice. But I try to do so from as objective and theoretical a standpoint as I can.]


As Open Educational Resources (OER) mature, they face many of the same questions that have faced other learning technologies and learning platforms. Given a larger and better-produced catalogue of OER, a large segment of for-profit companies have pursued a marketing and development strategy known as “open wrapping.”[i] The growth of courseware and technology platforms to support OER and the blend of for-profit with non-profit support for OER will present pressing issues for the near future open education. Questions about the benefits and harms of courseware and technology platforms apply to all aspects of education, but in the “open” space, those questions take on a specific character. First, for many people, the value of OER comes from their promise to reform a broken textbook market, providing materials that have a perpetual, open license. Second, open education advocates emphasize normative reasons for adopting, using, and developing OER, including not only social justice concerns about reducing barriers of access to education, but also intellectual property concerns about democratizing and publicizing a shared knowledge base for the modern world. These normative and economic concerns that guide OER usage highlight the special challenges of courseware platforms, but the ethical issues raised can be easily generalized to apply to any use of software platforms in education.

In order to address those concerns, I will begin by outlining a framework for evaluating the ethical issues posed by open wrapping. That framework consists of two parts: an outcomes-oriented evaluation and an evaluation of appropriate constraints based on considerations for the rights of users. In the outcomes-oriented evaluation, I will assess two different areas of possible benefit and harm posed by the adoption of OER courseware: first, benefits and harms to the sustainability of the OER ecosystem and second benefits and harms to teaching and learning through the implementation of OER courseware. In the section on constraints, I outline the mechanisms by which courseware platforms are designed to harvest user data in ways that do not always respect the labor, autonomy, or consent of users. Consequently, data monetization presents potential rights violations for users. Particularly in education, where students are required to use a platform because it is assigned by an instructor, those potential rights violations are ethically serious. Finally, I turn to some broader, systemic concerns that do not fall neatly into either outcomes or constraints considerations. These systemic concerns suggest the need to be vigilant about the ways that digital courseware is continuing to define and restrict education.

Open wrapping is a growing segment of OER and courseware is a growing segment of the overall educational technology market. While the issues presented by open wrapping emerge in considerations of OER particularly because of the normative concerns that drive many to adopt OER, those same considerations apply more generally to any use of courseware platforms in education. In the end, I provide a framework for instructors to evaluate software platforms that they adopt and use, but I arrive at the conclusion that the use of courseware is a pedagogical decision. Each instructor should weigh the benefits and harms and make a judgment based on their pedagogical preferences.


A Basic Moral Framework

One attractive and relatively clear way to assess the ethical implications of a moral decision is to weigh the likely outcomes. One might list the relevant goods or harms that may be produced by a given course of action, then assess the probable quantity of goods as compared to the probable quantity of harms. This is intuitively objective way to inform moral judgments. It can be quite a bit more sophisticated than the classical utilitarian calculus with which many people are familiar. For one thing, we may recognize a list of goods or harms much broader than simply pleasure or pain. For another, we needn’t restrict the comparison to a purely quantifiable calculus. We may recognize that the goods or harms are not strictly quantifiable, but we can still enumerate them in a way to facilitate judgment. I will call this approach the “outcomes-oriented assessment.”

There will always be problems with an outcomes-oriented assessment because our knowledge of future outcomes is limited and we may miscalculate. But even when a certain course of action presents very clear benefits, outweighing potential harms, there still may be reasons to reject that course of action because it transgresses some moral obligation that we take to be fundamental. To make this idea more concrete, I will assume that most human persons have something like rights, that is, certain fundamental freedoms that cannot be infringed. Rights-talk is pretty intuitive and fairly pervasive in political conversations even though philosophers have been critical of it.[ii] I set those concerns aside for the present argument. For the purposes of this discussion, if a person has a right to something, then that right entails that others must refrain from infringing on that right. If Nancy has an unqualified right to speech, then no one else can be permitted to curtail Nancy’s speech. In other words, Nancy’s right places a corresponding obligation on everyone else. Everyone else is constrained in their actions by Nancy’s right to speak. Thus, the existence of rights places constraints on actions that might violate those rights.

Consequently, my moral framework for assessing the benefits and harms of or OER courseware will first assess the outcomes of adopting such courseware, but then it will also consider the moral constraints that ought to operate on our calculus. If any of those outcomes might result in infringing on the rights of others, then we have to constrain our actions, out of respect for those rights, no matter how beneficial the outcomes may be. On this view, constraints trump outcomes. One cannot accept even the most beneficial outcomes if they run roughshod over rights.[iii]


The Benefits and Harms of OER Courseware: An Outcomes-Oriented Assessment

To assess the possible benefits and harms of courseware, one should appreciate that courseware platforms blend different types of things. Courseware combines instructional content into a software platform that is then fed into a Learning Management System (LMS). Decisions about how the courseware is constructed are the result of different instructional design objectives. Assessing the value of courseware for OER courses involves an assessment of the content, the platform, the instructional design, and its interoperability with other platforms (like the LMS). In typical OER courseware options, content is openly licensed (though some quiz or test banks may be proprietary or may have a different license type from the rest of the content). The content may be pulled from existing OER or it may be developed by the courseware provider. This could be true for “ancillary” resources, like assessments and activities embedded into the courseware, or it may be that the core instructional content, the “textbook,” is developed by the courseware provider.

Broad Outcomes of OER Courseware

It bears stating that the primary outcome that should concern an evaluation of OER courseware is whether the courseware actually helps students learn the material. That said, it may be useful to consider broader implications of courseware providers for the OER ecosystem. OER courseware companies have infused resources into developing OER content and modifying OER to embed that content into courseware platforms. Though the trajectory of those investments remains unclear, it is possible that OER courseware will continue to be seen as a profitable growth sector of the textbook industry. It’s also possible that investment in OER represents a momentary bubble in the market. In either case, current investment in the OER courseware market has presented opportunities for raising the quality, quantity, and accessibility of OER for instruction. One ideal scenario may see open wrapping as a component in the long-term sustainability of OER. But, even if that is not the case, as long as the content created through open wrapping ventures is openly licensed, open wrapping courseware will have generated a greater quantity of usable OER content. There are concerns that some OER courseware platforms do not enable sharing and repurposing of OER content in a way that aligns with the spirit of the open license.[iv] These concerns may mitigate enthusiasm about the creation of open content in an open wrapping arrangement.

Are there broader harms that may be caused by open wrapping? Perhaps one could argue that OER courseware crowds out investment in more public forms of OER infrastructure. As schools invest in partnerships with for-profit OER providers, they have less money to invest in their own OER development. To understand the trade-off, consider a dollar spent on a for-profit OER courseware provider versus the same dollar spent by a college on internal infrastructure and OER development. Which dollar is spent more efficiently? Perhaps internal spending is more efficient because it makes use of existing resources at the college whereas external spending supports the creation of an independent infrastructure. Conversely, independent companies that build courseware infrastructure can gain efficiency by sharing content with many different educational institutions and repackaging that content for use in different contexts. To assess the relative efficiency of each model, we might consider the prevalence of for-profit academic presses versus university presses. While the academic publishing market contains a large portion of not-for-profit presses, university presses compose a much smaller fraction of total journals and publishers.[v] It’s not necessary to assume a perfectly free market of academic publishing to concede that for-profit publishing seems to work as a financial proposition. If the courseware market is analogous to the academic publishing market, it seems unlikely that economic efficiency alone could rule out the benefit of for-profit OER courseware platforms.

Even if the economics point to a benefit from the use of for-profit publishers, there might be mission preferences that counsel against it. Perhaps dollars should be spent in ways that prioritize public institutions of higher education before private courseware companies because there is some intrinsic value to the promotion of public educational institutions. If that is conceded, then there may be some reasons to prefer spending dollars on the less efficient but more intrinsically valuable non-profit infrastructure. Nevertheless, it would be irrational to insist on higher education’s obligation to support projects that have intrinsic value in the face of economic insolvency.[vi] So, the degree to which this line of thought would weigh heavily against for-profit companies producing and supporting OER will have to be constrained, at least in part, by the economics.

When considering the economic impacts of OER courseware, it’s important not to forget the economic impacts of such courseware on students. While OER courseware platforms are typically much less expensive than platforms support traditional, commercial textbooks, they usually introduce some cost to students. Those costs may pose barriers to access. Whenever educators introduce such barriers, they risk alienating some students – typically, the students who need access to education most. The practice of introducing cost barriers that keep students out of educational opportunities can be understood under the rubric of “digital redlining.”[vii] Such practices can have the effect of increasing existing social inequalities. I will discuss these issues further in the final section on systemic concerns.

Outcomes Related Directly to Teaching and Learning

So much for the broader impacts. The primary focus on outcomes should be on teaching and learning. On this count, there is an argument to be made that courseware platforms, for OER or otherwise, provide value to teaching and learning. The science of teaching seems to have arrived at a few components of instructional design that measurably improve recall, learning, and mastery of content. First, there appears to be robust evidence that actively engaging students in required practice in low-to-moderate stakes environments improves learning. This has been demonstrated with studies measuring the testing effect,[viii] the doer effect,[ix] and effortful retrieval.[x] When students are required to generate responses in a way that challenges them, even if they feel like they are struggling, their gains in learning are markedly better. I say that the findings are robust because there appear to be many different experimental designs and contexts that demonstrate a similar effect. Given these findings, it is fair to conclude that students will remember more content and master more challenging concepts if they are required to engage in assignments where they are tested on their knowledge and generate responses by retrieving content from prior learning.

Along similar lines, studies have shown that interleaved practice and spacing between practice helps learning. The classic model for college classes assigns one or two big tests or papers (a mid-term and final) which encourages students to try to cram information through mass studying sessions. But this practice is counterproductive to long-term retention. Instead, studies show that students are best served by regular studying over shorter periods. Additionally, students ought to regularly return to earlier concepts throughout the course rather than studying concepts purely sequentially (this the idea behind interleaved testing). Just because a chapter is finished doesn’t mean the concepts ought to be forgotten. Long-term memory is improved by requiring students to retrieve material they have already learned in previous sections of the course.

How do these results from the science of teaching and learning relate to courseware? Many courseware platforms are designed with these principles in mind. Not all of them, of course. And when evaluating a software platform, instructors should look for platforms that provide active learning measures, regular testing, interleaved practice, and spaced studying. But if a platform does provide these or similar features, then there is good reason to believe that adopting a platform will actually improve student learning.

One may object that a software platform is not necessary to achieve these results. After all, any well-designed course can implement these learning techniques. While technically true, I think it is practically false. We need to be realistic about the time commitment, technical requirements, and knowledge of instructional design that are required in order to effectively design a course that employs all of these techniques.[xi] Instructors may legitimately feel that they cannot reproduce the quality of courseware design provided by for-profit courseware providers on their own.

So, those are the benefits to teaching and learning from adopting courseware, but what are the harms? One line of argument against courseware platforms can be classed under the broad heading of “critical digital pedagogy.” This view emphasizes the autonomy of learners as the primary goal of education, particularly in an age when educational relationships are mediated by digital technologies. The idea is that once a course has built in all of the capabilities I identify above – regular, interleaved assessment, required spacing in studying – and others that I didn’t – like learning pathways or adaptive learning exercises – these platforms put a straight-jacket on the learning process, infantilize learners, and cut short the dialogic model of education, where teacher and learner are engaged in a cooperative process of discovery. In effect, the critique says that by building such robust support-structures around the learning experience, we deprive the learning experience of its vitality and reduce the autonomy of learners, similar to the way putting your limbs in a cast will cause your muscles to atrophy.

It strikes me that, in the end, this boils down to a difference of pedagogical theory. Some instructors prefer their classrooms to mimic a democratic and fluid conversation, where teachers and learners both contribute to an active, open environment. Other instructors prefer a more predictable, sequenced learning experience that delivers consistent results. For those who prefer the former, OER courseware may not make sense, but those who prefer the latter may prefer it. It may be tempting to think that this difference in approach aligns with disciplinary differences. The humanities and social sciences may be more inclined toward critical pedagogy, while the more quantitative and technical fields will require a more structured environment. This may have a ring of truth, but there will be exceptions on the margins. The important thing to recognize is that the value of courseware for teaching and learning is one that is probably best assessed by the educator according to their educational goals and style.[xii]


Side Constraints and the Use of OER Courseware

Granted the outcomes-oriented assessment of OER courseware, some objections to for-profit courseware platforms suggest that such platforms may violate students’ rights in ways that cannot be tolerated. The language of rights introduces what Robert Nozick has called “side constraints.”[xiii] If OER courseware is engaged in rights violations, then there ought to be side constraints placed on instructional practice such that the use of such courseware is constrained in ways to avoid rights violations.

In what ways might OER courseware violate rights? Primarily, concerns about rights violations come from data monetization. Educational technology companies, like all technology companies today, include within their business model the use of user data for marketing, product design, and trouble-shooting. Some of these are desirable. For example, if data on student responses help designers to improve or correct quiz questions or improve instructional design, this seems desirable.[xiv] If features in the platform are unused or misused because they don’t work properly or are poorly designed, then data can help fix it. In general, when data is used to improve the educational experience of students, this seems like an appropriate use of the data. And if a company can monetize that experience by selling a better product, then so much the better for students.

The problem is that it is impossible to know whether technology companies are using student data for these beneficial purposes or whether they are using them for other purposes that students would not consent to if they were understood. For instance, the platform may have an interest in keeping students engaged for longer periods of time even if they aren’t learning. More insidiously, companies may use user data to market to students outside of the platform. After all, most students create user accounts with an email address. Additionally, they may answer questions or take certain courses that provide the courseware company with information about their interests and that information might be useful for marketing purposes. Most basically, courseware platforms asses student learning, which may provide insight into student interests, the way they process information, or other behavioral patterns. All of this information could be useful to advertisers, employers, and others. [xv] If courseware platforms monetize student data by producing products outside the platform and beyond the educational experience, that may be a use that students would not consent to, had they known in advance.

Perhaps the clearest case of ethically problematic data usage comes from platforms for which student work is essential to the business model, namely, Plagiarism Detection Software (PDS). For instance, Turnitin uses its huge database of student papers to perform plagiarism checks on other student submissions. In the case of Turnitin, a student pays for access to the platform (either by directly purchasing an access code, through a student technology fee, or through tuition) and then their work on the platform is used by the platform in order for it to function. Jesse Stommel and Sean Morris call this an “abuse of student labor and intellectual property.”[xvi] As cited in that article, the Conference on College Composition and Communication’s committee on intellectual property concurs that PDSs “can violate students’ right to privacy by making student writing available to commercial third parties not engaged in the relationship implied in the educational process.”[xvii] At least in the case of PDS, it appears that some educators assert that online courseware platforms violate the rights of students.

The argument appears to be

  1. Students have a right not to have their intellectual property (or personal data) used by commercial third parties in ways that they do not consent to.
  2. Students do not consent to having their intellectual property (or personal data) used in the ways Turnitin or other PDS platforms do.
  3. Therefore, Turnitin and other PDS platforms violate the rights of students.

The argument is pretty clearly valid. The first premise seems plausible given that it is a truism for anyone else. One may argue, against the second premise, that students consent to certain uses of their intellectual property and personal data for the purposes of education when they enroll in an educational institution. For instance, students submit their work to teachers for grading without being compensated monetarily. Similarly, various departments in the college use student data to inform decisions around completion, advising, etc. But the reply is clear: whereas student data may be used in explicitly educational functions, Turnitin and other companies use these data in ways that are not directly connected to the student’s own education. For instance, a student’s paper at one college may be used to detect plagiarism for another student at a different college. This function extends beyond the educational arrangement that a student consented to when they enrolled in the college or course.

Nevertheless, one may press on, students consent to this arrangement when they agree to Turnitin’s terms of service. But Stommel and Morris find that the explicit marketing claims made by Turnitin contradict the details of their terms of service. Turnitin’s claims on its website it “does not ever assert or claim copyright ownership of any works submitted to or through our service. Your property is YOUR property.” Yet, when Stommel and Morris analyze the terms of service, they conclude, “The gist: when you upload work to Turnitin, your property is, in no reasonable sense, YOUR property.”[xviii] While the public statements may be true by way of legal technicality, they are misleading. Such misleading statements vitiate the consent students provide when they accept the terms of service. Would students agree to participate with Turnitin if they were told, explicitly, in plain English, how the business works? More to the point, if a student refuses to accept the terms of service, would their professors allow them to opt-out of this portion of the class? The fact that Turnitin (and other PDS software) are required by professors further undermines the degree to which this arrangement is truly voluntary. So, premise two appears to be accurate in at least some cases. As long as professors require the use of PDS in their classes (over the objections of students on privacy and intellectual property grounds) and as long as those PDS companies misrepresent the way they use student work, then these software programs fail to obtain consent from those students and if the students would not consent to this arrangement, given full knowledge, then use of their data may violate their rights.

How relevant is the case of PDS to other instructional platforms, particularly, OER courseware? At this point, it is fair to assume that all courseware platforms monetize or seek to monetize student data.[xix] Recently, a market research firm, ListEd Tech, published a list of EdTech companies with the data on the most students. Companies are ranked by number of students and differentiated by Higher Ed and School Districts. Google and Microsoft dominate the list, primarily because of their email services, but also from their productivity software.[xx] Audrey Waters notes while many school districts use Google applications because they are free, in reality, “[s]chools pay with their students’ data. (Google might not sell advertising against student data, but it does still utilize this information to fuel its product development and its algorithms.)”[xxi] There are other, more exotic, ways that faculty have enlisted their students in data collection practices without consent. Chris Gilliard provides a few anecdotes in a recent The Chronicle of Higher Education piece. He recognizes that issues surrounding student labor and consent are at the heart of the moral problems posed by educational technology. He concludes, “When we draft students into education technologies and enlist their labor without their consent or even their ability to choose, we enact a pedagogy of extraction and exploitation.”[xxii]

According to the arguments above, use of student data constitutes a rights violation only if the student does not consent to that use. We typically think that adults can consent to relationships that others might find ill-advised and, except in extreme circumstance, only the individual’s personal judgment should constrain those arrangements. This suggests that for most college students, the choice about whether or not they share their intellectual property and personal data with courseware providers should be up to the student. For minors, protections on student data should be more stringent because we cannot suppose that they are in a position to consent to ill-advised use of their data. Gilliard and Sommel and Morris add concerns around fair compensation for student labor, when student work is used to prop up a for-profit enterprise. The enterprise of teaching and learning presupposes that students will work in order to learn, by completing assignments, drafting documents, creating presentations, designing projects, etc. A rights violation only arises when that labor is used by a third-party for a purpose that is not directly connected to the traditional relationship of teaching and learning.

Consequently, we are in a position to offer a test of whether some piece of educational technology violates student rights.

  1. Does the student consent to the use of her data in the way it is used by the technology?
  2. Are the products of the student’s labor used only within the traditional arrangement of teaching and learning? That is, is the student’s labor used for the purpose of that student’s learning, assessment, feedback, reward, etc., as is required by the teaching and learning relationship?

While this two-part test may simplify an instructor’s assessment of whether or not they ought to be constrained in their use of courseware platforms, each prong of the test is complex. Consent requires more than just an acceptance of Terms of Service. It ought to be informed consent, meaning that students should understand how their data is being used in words they can understand.[xxiii] Similarly, the “traditional arrangement of teaching and learning” is necessarily vague. Conceivably, every classroom may involve a unique arrangement between instructor and student. So, assessing whether or not student labor is used for purposes outside of that traditional arrangement will require some judgment that cannot be fully prescribed in advance. Nevertheless, this test provides a framework for evaluating whether a courseware should be avoided due to moral side constraints.


Systemic Concerns Around the Use of Courseware in Education

We are not out of the woods yet. There remain concerns about courseware platforms in education that do not fit neatly into either the assessment of outcomes or the evaluation of side constraints. Authors critical of educational technology and courseware platforms also articulate concerns that are more systemic in nature. These systemic concerns are consequences of the use of technology platforms in education, but they are indirect and not easily measured. Similarly, while they present real concerns about the ways educational technology alters the relationship between teachers and students, they do not rise to the level of side constraints. Nonetheless, they are important concerns that ought to be addressed before an evaluation of the ethics of open courseware is complete.

When Gilliard talks about technology and privacy, he sometimes uses the language of rights violations, for instance when he evokes the sense of a violation of privacy and consent.[xxiv] But he also raises structural concerns under the concept of “digital redlining.” The notion of digital redlining, Gilliard says, intentionally refers back to the historical process of racial segregation by those who enforced “grey” norms around housing opportunities, mortgage lending, and rental eligibility. “[Digital redlining] is the creation and maintenance of technological policies, practices, pedagogy, and investment decisions that enforce class boundaries and discriminate against specific groups. The digital divide is a noun; it is the consequence of many forces. In contrast, digital redlining is a verb, the ‘doing’ of difference, a ‘doing’ whose consequences reinforce existing class structures.”[xxv] Digital redlining, like its non-digital, historical predecessor, limits opportunities, restricts access, and impinges on the freedoms of specific populations, not through direct rights violations, but through an indirect set of practices and norms that may even (in some cases) be well-meaning. The problem is that, in their totality, these practices exclude some groups from access to information, freedoms, and a sense of personal agency that others have by default.

Similarly, even though Stommel and Morris demonstrate specific ways that Turnitin (and other PDS) may violate individual rights of students, the broader message of their recent work is to demonstrate how the use of platforms and educational technology truncates the educational experience and limits the possibilities of student agency for personal development. For instance, in “Learning is Not a Mechanism,” Stommel argues that the LMS attempts to automate and make objective a process, particularly the grading and evaluation of student work, that is fundamentally subjective and personal. He worries that as we abstract the essence of student work into tasks that can be automatically graded, we reduce the learning process to its least interesting, most oppressive aspects. It turns learning into machine-like work, removing the relational and transformational aspects of learning. Similarly, Morris, in “Beyond the LMS,” finds that the LMS plays “to the lowest common denominator.” The LMS does not assist instructors in classroom innovation, but encodes the most repetitious and least innovative practices of the classroom into a pervasive digital tool. These arguments do not demonstrate that courseware involves rights violations, nor do they point to specific, negative consequences of adopting courseware. Rather, they recognize that the pervasiveness of courseware and LMS platforms signals a shift away from pedagogy that is engaging and transformative, toward a pedagogy that is rote and mechanical. Stommel and Morris assert that “educators should never be in the business of removing student agency,” but courseware platforms, they argue, do just that.

Likewise, Watters characterizes the move toward “personalized” and adaptive platforms as a reductive move that mechanizes instruction, trades on a consumer-producer model of education, and restricts genuine autonomy. She likens personalized courseware to the famous “Skinner box.” In a Skinner box, the lab rat or pigeon is given options and engages in “choices” that are “conditioned” by the experimenter. But the entire arrangement is deeply unnatural. It results in a feedback mechanism at the lowest level of behavior: action – reward – action – reward. Here, she recognizes that language around pedagogy has shifted from “individualization,” a word with deep resonance with autonomy and freedom, to “personalization,” which is grounded in selecting a set of preferences from among pre-determined options. It’s the logic of consumerism and behaviorism, not the logic of autonomy, growth, or personal development. “’Personalization’,” she writes, “acts as some sort of psychological balm, perhaps, to standardization. A salve. Not a solution.”[xxvi]

These arguments point to a systemic drift in education. As Watters, Stommel, Morris, and Gilliard would readily admit that drift is not new to digital courseware platforms. Rather, these platforms provide a new iteration of a decades-long tension in education. Whereas genuine learning occurs when students are changed, acquiring knew knowledge, habits, skills, or dispositions, some educators appear to want learning to fit a mechanized model of measurement, automation, efficiency, and standardization. This tension is nothing new. But, they would insist, that doesn’t make the need to address it any less pressing.



The challenges presented by possible rights violations and systemic shifts in pedagogy from the widespread adoption of courseware are concerning. They ought to be especially concerning for advocates of OER who premise their advocacy on the reduction of barriers to access and the promotion of social justice. To avoid potential rights violations, instructors need to be up-front about how courseware platforms, required for use in their courses, may use student data. Additionally, they must allow students an opportunity to opt-out of that arrangement on privacy grounds. Otherwise, they risk requiring students to enter a non-consensual arrangement where their personal data and intellectual property may be used by others. In most cases, communication and consent around courseware will be easy for instructors to obtain. Once this bar has been met, then it is up to the instructor to evaluate the direct and indirect pedagogical effects of adopting OER courseware. Instructors should be thoughtful and serious as they reflect on their use of OER courseware and its implications for teaching and learning. Similarly, OER advocates and administrators of OER programs ought to be forthright about objections to OER courseware at the same time as they may advocate for the use of courseware in an effort to increase OER adoptions.

[i] For some helpful context, see J. Young and S. Johson’s interview, “As OER Grows Up, Advocates Stress More Than Just Low Cost,”; David Wiley, “How do we talk about ‘open’ in the context of courseware?”; and Michael Feldstein, “MOOCs, Courseware, and the Course as an Artificat,”

[ii] See, for instance, Glendon, M., Rights Talk: The Impverishment of Political Discourse (New York: Free Press, 1991).

[iii] This is the basic insight of anti-utilitarian fantasies, like Ursula Le Guin’s “The Ones Who Walk Away from Omelas.”

[iv] While there is no evidence that OER courseware providers violate the terms of open copyright licensing by embedding or developing OER content in a platform that makes reuse and repurposing difficult, there is nonetheless a serious concern about the degree to which this platform is genuinely open.

[v] STM Report, Fifth Edition (2018), pg. 40-47. Of the 657 publishers and 11,500 journals, about 73% of those publishers are not-for-profit, producing only 20% of the journals. Oxford and Cambridge University presses stand out as giants among university presses, rivaling the second tier of publishers. But the total share of journals published by university presses is not much more than 10%.

[vi] Consider the case of the recent decision to discontinue Stanford University Press. The press cost the college an average of $16 M a year. It could be argued that the value of such a press, in the context of Stanford’s annual budget (…) and endowment (…) would warrant continuation of the press, but even the most ardent promoter of university presses would have to concede that a university should not be required to countenance mounting annual losses to support an academic press.

[vii] “Digital redlining is the modern equivalent of this historical form of societal division; it is the creation and maintenance of technological policies, practices, pedagogy, and investment decisions that enforce class boundaries and discriminate against specific groups. The digital divide is a noun; it is the consequence of many forces. In contrast, digital redlining is a verb, the “doing” of difference, a “doing” whose consequences reinforce existing class structures.”

[viii] See P. Brown, H. L. Roediger II, and M. A. McDaniel, Make it Stick: The Science of Successful Learning (Harvard University Press, 2014); K.-H. Bäuml, “Cognitive Psychology of Memor” in Learning and Memory: A Comprehensive Reference (2008); J. D. Karpicke, et al, “Retrieval-Based Learning,” in Psychology of Learning and Motivation (2014); H. L. Roediger III, et al, “Ten Benefits of Testing and Their Applications to Educational Practice,” in Psychology of Learning and Motivation (2011); N. Kornell and K. E. Vaughn, “How Retrieval Attempts Affect Learning,” in Psychology of Learning and Motivation (2016).

[ix] K. R. Koedinger, et al, “Is the Doer Effect a Causal Relationship? How can We Tell and Why It’s Important,” Learning Analytics and Knowledge ’16, 388-397 (2016).

[x] M. A. Pyc and K. A. Rawson, “Testing the retrieval effort hypothesis: Does greater difficulty correctly recalling information lead to higher levels of memory?”, Journal of Memory and Language, 60 (4), 2009, 437-47.

[xi] While I am sympathetic the criticism that instructors who are reliant on courseware platforms have “outsourced” their instructional obligations, I am also sympathetic to instructors who insist that it would be prohibitively time-consuming to design a course that actively engaged students in ways that mimicked what courseware providers can do. I teach philosophy, and apart from a couple of logic courses, I’ve never been impressed by what courseware platforms offer philosophy instructors. As a result, I have always built my classes from the ground up. But I also recognize that my classes fall woefully short of what I’ve seen courseware platforms do in other subjects. I devote a lot of time to designing active learning tasks and quiz banks, but I struggle to build in the kind of functionality that interleaves test questions or requires students to engaged in spaced studying. Sometimes this is because I just haven’t found the functionality in the LMS and sometimes it’s because I haven’t built enough content, can’t find the content, or don’t know how to utilize existing tools to suit my needs.

[xii] At my institution, about a third of our OER courses use some courseware (paid for by an external grant). This means that two-thirds prefer not to use any courseware, even when it’s free to use.

[xiii] Anarchy, State, and Utopia (New York: Basic Books, 1974).

[xiv] See, for instance, R. Bodily, R. Nyland, and D. Wiley, “The RISE Framework: Using Learning Analytics to Automatically Identify Open Educational Resources for Continuous Improvement,” The International Review of Research in Open and Distributed Learning, 18(2),

[xv] In 2014, Politico published an article warning about the possible dangers of Knewton/Alta’s data on student learning. The chief concern was that Knewton has a particularly sensitive kind of data, namely, data about how individuals learn, how they persevere on task, and what they know. However, it’s not clear whether these data can be linked to the identity of the learner and whether or how the data is used. For instance, whether it exploits students.

[xvi]A Guide to Resisting Ed Tech,” An Urgency of Teachers.


[xviii]A Guide to Resisting Ed Tech,” An Urgency of Teachers.

[xix] Many people were surprised to learn that Instructure had announced plans to monetize student data, but this represents the trend, not the outlier:




[xxiii] These considerations appear to align with the suggestions made by Amy Collier regarding the use of student data (“Digital Sanctuary,” New Horizons). She outlines several criteria that ought to be met when considering the use of student data for educational purposes:

  • Audit policies associated with the use of student data with third-party providers,
  • Have a standard and well-known policy about how to handle requests for student data from third parties,
  • Provide data audits to students who request them,
  • Take seriously the data policies of third-party vendors, specifically, don’t work with vendors whose contracts stipulate that they can use and share student data without consent,
  • Reconsider and evaluate internal tracking protocols on student data, specifically asking whether they truly serve students, and
  • Give students technological agency in their interactions with the institution.

[xxiv] See Gilliard, “Privacy is not an abstraction,”

[xxv] “Pedagogy and the Logic of Platforms,” See also Gilliard and Culik, “Digital Redlining, Access, and Privacy,”

[xxvi] Watters, “Teaching Machines, or How the Automation of Education Became ‘Personalized Learning’,”

NSCS Induction Keynote

I had the chance to provide the keynote address at the induction ceremony for the HCC Chapter of the National Society of Collegiate Scholars on November 18, 2018. I have been an advisor (now co-advisor) of the chapter since it was founded in 2010 but this was the first opportunity I had to be the main speaker at induction.

As it happened, I got the invitation less than a week before the event, so without much time to prepare, I went to pretty familiar terrain: a defense of the humanities. The speech could probably use some work, but I thought it might be worthwhile to post it publicly.

Thank you to the officer board, NSCS national office, and Houston Community College for inviting me to talk to you on the occasion of this induction. When Romina asked me to speak at induction, she said that she thought there wouldn’t be anyone better to speak to the society than someone who had been part of it from the beginning.

So, just to make sure she regrets that decision, I thought I’d start with a joke.

Isn’t it annoying when engineering students call themselves engineers? I mean, you never hear medical students call themselves doctors, or philosophy students call themselves baristas.

It gets a laugh because, I suppose, everyone has heard some version of the warning: don’t major in philosophy or you’ll be serving coffee at Starbucks. A couple of years ago, Marco Rubio made a big splash arguing that the world needs more welders and fewer philosophers. In response, academics and statisticians pointed out that, in fact, the career earning potential of philosophers is pretty close to the average earning potential of finance majors. While the highest earning fields are in engineering, a disproportionate number of entrepreneurs and CEOs studied philosophy.

The same argument can be made for the other humanities disciplines, like, English, History, or Art. A recent study by the American Academy of Arts & Sciences, found that the employment rate for humanities majors is very close to the average for all college graduates. And, while career earnings for those majors are slightly below average, people who majored in the humanities report higher levels of career fulfillment and happiness than their peers. So, even if these humanities majors make less money, it may be because they pursue careers that sacrifice some earning potential for greater well-being.

Much more importantly, the gap in employment and earning potential between different majors is insignificant compared to the gap in employment and earning potential between bachelor’s degree recipients those who have not received a degree. While the median earnings of bachelor’s degree holders range from $35,000/year to $80,000/year immediately after graduation, the median earnings of those with only a high school degree is under $30,000/year. And when you look at mid-career earnings that gap becomes wider. High school graduates, on average, have limited ability to advance beyond entry-level pay, whereas the median bachelor’s degree earner rises from around $50,000 out of college to $70,000 10 years later. That ability to increase pay as you progress through your career translates to several hundred thousand dollars in lifetime earning potential.

And, yet, there is a growing segment of the population who question the value of a college degree. The Kinder Institute at Rice University does an annual survey of the Houston area. In 2017, they reported, for the first time, that in some demographics of Houston area residents, a majority no longer believe that a college degree is necessary for success. What is going on? The evidence clearly shows that getting a college education is still the single best thing you can do to improve your earning potential. And, yet, fewer people believe that to be true.

You know, it reminds me of another joke:

A young woman is at a job interview and the manager says, “Listen, I like you, you’re smart, but if you want to be successful at this company, you’re going to have to forget everything you learned in college.” To which she replies, “Well, that’s good news because I never went to college.”

The manager looks at his notes and responds, “Oh, I’m sorry, there’s been some mistake. You’re not qualified for this position.”

I think this says something about what’s driving our beliefs about college education – we know college is important, but we don’t know why. In fact, we sometimes recognize that what you learn in college is not directly applicable to the job you do after college. So what is the value of higher education?

I have an answer to that question, but I’m going to postpone it for a moment because I’d like to stop and reflect on this evening, on why you all are here looking lovely, with your family and friends. Thank you family and friends for coming to support your NSCS inductee. What I want to do is to pause for a moment and consider the origins of this sort of accolade. Why is it that we celebrate scholarship like this?


If you look at the NSCS seal, you’ll see that it employs classical symbols, like the torch, symbolizing enlightenment, the book, representing learning, and the laurel, representing a crown of achievement. We typically associate the laurel with the great Olympians – winners of athletic competitions. But why do we crown high achieving students? I think we have somewhat lost the meaning of that tradition.

In Ancient Greece, intellectual skill and learning were honored, typically by virtue of oration or rhetoric. The greatest politicians and statesmen were known for their excellent speeches. Among these is the funeral oration by Pericles, honoring the dead after a particularly bloody battle in the Peloponnesian Wars. In that speech, Pericles honors the dead, but also encourages the living. He famously links the virtues of love, friendship, bravery, and the ability to endure hardship to democracy. He reasons that those who have a stake in their own government, who are truly free, are more likely to possess these virtues and thus better equipped for war. The speech is a wonderful combination of honor, exhortation, and political philosophy.

Similarly, some of the greatest statesmen of the Roman Republic, including Cicero, were excellent orators. Throughout the classical period, the ability to demonstrate learning through public speaking was highly praised. The skill of public speaking was connected with memory, a good speaker must have a great memory and intelligence. Good rhetoric appeals to an audience’s emotions, but also their intellect. A well-composed speech tells a story with a moral. But, perhaps most importantly, a good speech is thought to stem from the character of the speaker.

In Athens, speakers could test their mettle by delivering speeches in the Athenian “assembly,” a body of 6,000 citizens who were the judges and legislators of the Athenian democracy. This body passed laws and decided civil and criminal cases. And Athenians were notoriously difficult to persuade. They prided themselves on discerning good from bad, right from wrong. And their culture encouraged loud and outspoken expressions of opinion. All of this is to say that if the Assembly considered a speaker boring or false, they wouldn’t tolerate it. Only the best orators could get through a speech without being shouted down or laughed off the stage.

One of the greatest orators of the same era as Pericles was Demosthenes. And while accounts of Demosthenes commend his knowledge of history, his memory, and his hard work, one of the features that stands out about Demosthenes is that it is said that his speeches flowed naturally from his character. He spoke from within himself. The beliefs, virtues, and principles he spoke about emerged from who he was. In other words, his speech and his acts were praised because they emerged from a certain kind of character – they represented an inner virtue that was honorable and praiseworthy.

I am not telling you this because I think that all great orators or politicians are great people. I suspect that you know that’s not the case. Instead, what I’m trying to suggest is that there is a link between words, deeds, and person. Our capacity to demonstrate our knowledge through our actions and words is a manifestation of who we are. I am trying to convince you that the reason why the Ancient Greeks and Romans praised great orators – or the reason why we want our leaders to be smart, well-spoken, and capable people – is that we recognize that our ability to speak and act in ways that are praiseworthy is a function of who we are.

Consider the great public figures of the past who we later find out had many moral failings. What was your reaction when you discovered the infidelities of John F. Kennedy or Martin Luther King Jr. If they aren’t your heroes, then what was your reaction to the revelation that Ronald Reagan was fairly aloof and disengaged privately, even uncommitted and unaware of basic policy decisions inside his administration. When you learn these things, I suspect you resist and recoil. How is it possible that someone who spoke so eloquently and passionately about the things that motivate you politically could have had such personal failings? This reaction, I think, proves the point. We are shocked at the disconnect between person and words when we discover that the person we admired was not who we thought they were. We struggle to make sense of that picture. I suspect this is one reason why public figures fall from grace so quickly when we discover their personal failings.

The fact that the sins of our heroes stings us is a sign of the close connection we perceive between character and words and deeds. The natural arrangement of things suggests that words and deeds are an outward manifestation, a public representation, of the inner mind. This is why it is so difficult to understand how the two could be at odds, how great public figures could be inwardly flawed. Certainly, we probably expect too much of those we admire, but we also assume – I think for good reasons – that there is a close connection between what you say and do and who you are.

Let’s bring this long detour back to what this evening is all about. I think that this very fact – the close connection between mind, word, and deed – is what we honor at events like this. We honor the promise of great words and deeds, great scholarship and achievement in you because you have shown that you are willing and able to succeed at the college level. You have demonstrated your desire to be a part of a national society of scholars. And we honor that because we recognize that there is a close connection between your mind and your actions. You have the potential to do great things because you have the capacity to think great thoughts.

When we started the HCC chapter of NSCS in the fall of 2010, we inducted 345 new members. I thought that was pretty great. That year, we had a wonderful, active officer board and we achieved bronze star status. The following year, we inducted another 400 members, we won outstanding service event in a project with the University of Houston, and we achieved gold star status. In the summer of 2012, we raised money and organized a service trip to Guatemala. The following fall, we inducted over 900 new members! We would achieve gold star status again in 2014. We’ve done a lot of really amazing things as a society, but the only way this society thrives is if you, the members, participate and get involved. This society is built around its members and student leaders who choose to invest themselves in it. It grows and thrives when you, that’s right you, do interesting things that attract new members.

Right now, you are being drafted into the NSCS as new members because you show promise for future greatness. But whether or not the society is great, whether or not you fulfill your promise is still unknown.

I started this talk by posing a question that you may have heard before. It’s a question that many people ask about college: what is a college education really worth? Does it matter what major I choose? A lot of what is unknown and uncertain about college is the same as what is unknown and uncertain about this society. Will it be worth it? What will you get out of it? Why do it?

I want to close with some thoughts about all of this because, as a professor here at HCC for the past 10 years, and a college instructor for the past 16 years, I have some thoughts on the topic. First of all, I think a lot of people misunderstand the true value of a college education. And when we try to measure the value of higher education by looking to future employment and earnings, we miss the point even more. There’s a connection between these things, but it’s not direct. The reason why higher education is important is actually very tightly linked with the reason why some of the most successful people in the world never graduated from college. I know that sounds crazy, but I think it’s true. The real reason college is important is the very reason why a hiring manager could say in one breath “forget everything you learned in college” and in the next breath “a college degree is required for this position.” In fact, this connection comes down to what I’ve been talking about all along: the development of your character and your mind.

The most amazing thing you have available to you right now, as a college student is something you probably never even think about. The most valuable resources at HCC are your professors, librarians, and huge databases of information, tools, labs, 3-d printers, and machine shops that are accessible to you by virtue of your student ID. Every professor and librarian here has an advanced degree and has spent the better part of their life thinking about some subject. They are an enormous resource. And your student ID, right now, can get you access to 100s of thousands of journal articles, thousands of video titles, 10s of thousands of books, a maker-space with all the cool gadgets you can imagine. But once you graduate, that will all be gone. You will never be in a place where you have direct access to so many smart people and so many academic resources.

The value of higher education is that you get to be in a place where you have the opportunity to learn a little bit about almost any portion of the vast wealth of social knowledge that forms the very foundation of modern civilization. You have the opportunity to absorb that information, to train your mind, and to acquaint yourself with the habits of thought, speech, and writing that are shared by the greatest minds in the world. And the extent to which you take advantage of that, the extent to which you allow your mind, your character, your person to be changed by your access to these resources is the extent to which you will be able to accomplish great things.

Even though Bill Gates and Mark Zuckerberg never graduated from college, they made their first great insights while at a college campus. They tapped into a vein of knowledge that was available to them because of where they were. The reason why employers want college graduates, even if they know that what you learn in college isn’t directly applicable to the job, is because they want minds that have been touched and shaped by the greatest ideas and thoughts in human civilization.

At the start of this journey, seeking a college degree, joining a society of collegiate scholars, you have the opportunity to be shaped into more than you currently are. You have great potential, but if you are going to be great, you have to be willing to be shaped by the ideas and knowledge that has come from human history. You will need to take advantage of the resources and opportunities you have in front of you. You need to engage your minds in the pursuit of excellence. If you do that, you can wear the pin of NSCS with pride. You will have deserved it.

Think About Capabilities, Not Permissions

To move OER forward, I wonder if we might not be better served by shifting our focus away from the permissions or licenses that makes something an open educational resource and shifting it toward capabilities that open resources ought to possess. What I mean is that we might be better off focusing on the capacity OER have for future sharing, updating, and integrating into teaching and learning operations, rather than what OER really are.

Understanding the 5 R permissions remains a necessary framework to describe what typically distinguishes an OER from a traditionally copyrighted instructional resource. But I don’t think that further refining, expanding, or updating those permissions will be sufficient to move OER forward. Instead, I propose we focus on how we might design OER and OER-supporting technologies in order for those resources to have the greatest impact. To facilitate thinking about OER from this perspective, I suggest that we think in terms of capabilities. That is, I suggest we think in terms of what we want the OER to do and how we can create the conditions that encourage OERs to do those sorts of things. In order to do that, I’ll start by identifying two ways I think we go wrong when we focus on permissions and licenses.

First, I often see people try to be more restrictive in their interpretation of what counts as an OER, for instance, by insisting on compliance with all of the 5 R permissions or adding qualifications to the list. One example would be the idea that we ought to rule out “No Derivatives” works from OER. While it is true that “Revision” and “Remixing” are two of the 5 Rs, it seems misguided to insist that every OER ought to be revisable and remixable. There may be very good reasons for different types of creative works (poetry, literature, photography, film, painting, etc.) to bear a “No Derivatives” license. These reasons are grounded in what are called the moral rights of authors. Moral rights are those rights of authors to control the ways their work will be represented in the future. They include the right of attribution and the right of integrity. Any creative writer can appreciate the desire to have their creations properly attributed to them and not reproduced ways that changes their meaning or undermine the intention and context of the original expression. Historically, copyright disputes have included a substantial number of – sometimes perfectly reasonable, sometimes unreasonable – requests by authors for their work not to be appropriated in ways that run contrary to their artistic intention. Such concerns are worth considering. And if some content that is openly available for teaching and learning has restrictions on how it can be modified in the future, it doesn’t seem like it ought to be considered “not really OER.”

Another way people argue for more a more restrictive understanding of OER is by adding “permissions” to the 5 Rs. Some OER proponents insist on only Non-Commercial future uses of their copyrighted content (this isn’t really a permission, but an impermission). It is true that having a large repository of non-commercial, publicly available resources increases the knowledge commons and public domain. But if we insist that all OER remain non-commercial throughout their life-cycle, then we may miss out on the potential capacity of for-profit and non-profit commercial enterprises to support and augment open resources in ways that make them more user-friendly or even more effective for teachers and learners. It seems to me it would be short-sighted to prohibit such support completely.

A similar sort of move was recently defended in a thoughtful article by Chris Aldrich, “A Sixth ‘R’ of Open Educational Resources.” To be clear, the basic proposition defended in this article is awesome and I wholeheartedly support it. Aldrich argues that we ought to develop some version control software for OER. In effect, the software would provide a mechanism for easily sharing updated versions and archiving older versions of a particular resource. These versions could be publicly accessible and thus provide a rich catalogue of possible content for specific instructors’ needs. Finally, he proposes that users should be able to request an update (the sixth “R”) to an OER through this software. The request for revision could kick back to authors and the community in such a way that it prompts them to undertake a revision. This is a wonderful idea and articulates exactly the sort of design that would enable OER to have the capacity for regular revision and update, a capacity that is essential to the long-term sustainability of OER. But this is not a permission; it’s a feature. And it would probably be excessively restrictive to insist that any resource that lacked this software feature fails to be a genuine OER.

There is an understandable tendency to want to build all of our important concepts and ideas back into definitions. This seems conceptually grounded, solid, and firm. But it can be misguided. By crafting a more and more delimited definition of OER, we may actually choke off and restrict the lifeblood that will ultimately enable OER to thrive. Additionally, we risk retreating into more and more exclusive sects of open education practitioners based on disagreements over definition, a move that may inhibit the sort of growth we all want and need in order for the movement to survive.

A second sort of error comes from shifting responsibility for the flourishing capabilities of OER from the designer to the user. Instead of proposing that OER designers, authors, or creators ought to build in properties that expand the power of OER – features like interoperability with learning tools (like the LMS), common protocols for platforms, user-friendly interfaces for revising and remixing content, and version control software – instead of seeing these capabilities as the responsibility of designers, some advocates have shifted responsibility to the users. Here, I’m primarily thinking about the CARE Framework. Like the positions discussed above, this framework articulates a number of very important values for the OER community and for the ultimate sustainability of OER. But it does so by seemingly (I say seemingly, because I think the framework is vague on this point and I have not yet received clarification from an earlier request) requiring every OER user to be an active participant in sustaining OER by contributing, empowering, attributing, and releasing content. This vision takes some important actions that are necessary for the sustainability of OER and (I think) demands that every user ought to be responsible for putting them into practice.

I think this view (if that’s the view) is misguided, first, because it is pragmatically unnecessary and, second, because it raises barriers to OER adoption. The view is pragmatically unnecessary because not every user needs to be engaged in contributing, attributing, empowering, or releasing content in order for OER to be regularly updated, sustained, and widely shared. The four practices of good stewardship are certainly excellent practices that I hope OER designers, authors, and advocates will put into practice (I know I’m trying). But it’s not practically necessary for the average teacher – or student – to be fully engaged in stewardship in the same way. To illustrate, consider the success of open source software. The mainstream success of open source software is actually predicated on the fact that the vast majority of users are unaware of how one contributes, attributes, or releases versions of the software. Many millions of people and organizations use Firefox browsers and Linux-based enterprise IT systems because they like the products. The vast majority of them are not participating in stewardship practices around these products. They are just users. I would like to hear an argument for why we should expect OER to be any different. In fact, I think it would be a great achievement if millions of teachers and students used OER without having much awareness of the underlying copyright or the mechanisms for attribution, contribution, and release of those resources. Of course, it would remain possible for anyone to participate in these stewardship activities; sustainability would remain a community effort. But there is no pragmatic reason why we should insist that every user has a responsibility to be a good steward as long as there is a sufficiently active core community of authors, designers, and engineers that are.

Not only is the notion that OER-sustainability is the responsibility of the end-user pragmatically unnecessary, it also places barriers to adoption that will inhibit rather than encourage future use. By insisting that every user become a good steward of the OER they use, we risk placing demands on users that they will perceive as a cost of adoption. One of the continuing barriers to OER adoption right now is the perceived difficulty in locating and adapting resources for use in the classroom. Faculty members – sometimes rightly – feel that adopting an OER will increase their workload without compensation; adopting OER looks to them like a cost. While they may be motivated out of altruistic concerns for their students, we shouldn’t rely on such motivations to sustain the growth of adoptions. Instead, we should do what the most successful OER producers (like OpenStax, Pressbooks, Lumen Learning, Top Hat, Pan Open, and others) have already done – that is, make OER look and feel as polished as traditionally copyrighted, publisher-provided resources. When OER look and feel comparable to publisher-based resources, faculty adopt in large numbers. If we insist that faculty or student adopters bear additional responsibilities to ensure the sustainability of the resources they use, I am confident that we will lose adopters. Such a proposal increases the cost of adoption, which will depress demand.

I don’t want to sound overly critical of the efforts of others to move OER forward, so I will end on a positive note. The good news is that we can have our cake and eat it, too. If we just shift the conversation away from the objects (OER), their definition, and the normative demands on users to a conversation about how we can design capabilities right into the OER we are building and using, then we can work together to make better OER that will be used more and will be easier to support, adapt, update, modify, and distribute. (Also, everything I’ve mentioned here is something that people are currently doing. I’m just trying to provide some language to talk about it in a different way.)

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.

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.