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Granted.  Most of us are not legal eagles.  In fact we are kind of scared of the law… We live our entire lives free of legal notice and suddenly one day, out of nowhere, BAM, we get one…

Our fear: “Oh my goodness, I’m going to be bankrupt”.. We then quickly undo what we did and hope that maybe they will forget and follow up with anything else.”

And that is what they hope we will do….

 

But.  That is not the law.  For there are entities who both file and receive copyright violations all the time… Sony, Disney, Samsung, Apple, Google for example.  Where would today’s society be without any of those?

 

The protections the law put in place for them… are also there for you… it is just that you don’t have 150 lawyers working for you and they do…

 

If you are reading this, it is probably because Pearson used Twitter or Blogspot to force you to remove some of their test questions (or links to them) which you (in shock over what they revealed) bravely determined needed to be exposed and announced, so that normal and proper societal actions could be taken to rectify the damage these items were doing to the brains of children….

 

So let us first explain how DMCA works and then you will see how it works backwards as well to your advantage….

 

Imagine you took a picture of yourself and your old college friends acting silly and perhaps a little lewd in some bar….   Now imagine you are later googling images related to your name and see on some commercial site, that same picture was used to represent something totally unrelated to you…  Your first fear is that Snoopy in Human Relations will flag it to your superior.  So you want it quietly gone…. and you can, under the DMCA. You file a DMCA with the ISP …  In it you provide your personal details,  the details of the Internet location of the offending product, and the reason why the image should be taken down (unauthorized use), and then demand it be removed.  Now…. most likely you didn’t copyright or register that photo as being yours. Doing so takes considerable time and money and who does that to facebook photos? So the end, you may lose.  But, because ISP’s get millions of requests per day, they take them down immediately with no concern over right and wrong. It automatically comes down. (Not sure, but at the speed at which they do, it must be done without human involvement or oversight)…

Immediately it is blocked from being seen.  If the party posting it ever notices it is missing, they can file a DMCA Counter Notice. At this point, they don’t even know “who” you represent as the person requiring them to take it down… All they know you as, is that “cease and desist”person. Furthermore, if they contest it, they must blindly provide all their personal information to you in good faith, and they never get to know who filed the complaint, unless they ultimately pursue expensive legal action…

This makes it easy to manipulate. If you have an “enemy” at your job site (who maybe once asked you out and you refused, and then became your troll),  and you post something that is flattering to you, he or she can file a DMCA for no reason, making it immediately go away for a minimum of 10 days and force you to counter and go through the human chain to get it restored. This flawed system is unequally balanced and currently is tilted to allow anyone to use a bullying tactic of forcing immediate take-downs of anything one doesn’t want the public to see… rightly or wrongly.

At the time of the law’s inception, this was originally deemed a good thing.  At that time this immediate course of action was seen as the better alternative over allowing copyright infringement to continue indefinitely until a case was resolved in court…. So for now, the burden of proof fully rests on the defendant of a takedown request to prove he is allowed to show the item.

 

Ok. You got a notice. So what do you do?  Well if you are Samsung, and it’s Apple who files a takedown of all mention of your newly rolled-out product, … you file a counter notice…

 

That same privilege extends to you against Pearson.

Copyright owners sometimes send bogus takedown notices that have no basis in law or fact, which are meant solely to intimidate the target. A prompt counter-notice can make these empty threats go away for good.

Here is how you do it:

First, make a backup copy of all the material that you will have to delete. You may need this when you want to restore your web page. Then remove the material in question from your web page. You may substitute a brief note informing potential page viewers that a DMCA attack has been filed against your web page and the material has been temporarily deleted for 10 business days while you contest the DMCA charge via a “Counter Notification Letter”.

Secondly, you should file a counter takedown letter. Provided in the initial takedown will be information on how to contact the ISP, (in our case either Twitter or Blogspot.)

Here is the standard form-letter used by corporate America in their dealings with each other. Customize it to fit your situation…..

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Dear Internet Service Provider:

This letter is written in response to your notification to me of a complaint received about my web page(s). The pages in question are:

(insert list of URLs here)

My response to this complaint is as follows: (include all that apply from list below)

Allegations of Copyright Violation / Digital Millennium Copyright Act

The claims of copyright violation should be rejected because:.

*The material in question is not copyrighted, or the copyright has expired. It is therefore in the public domain and may be reproduced by anyone.

*The complainant has provided no copyright registration information or other tangible evidence that the material in question is in fact copyrighted, and I have a good faith belief that it is not. The allegation of copyright violation is therefore in dispute, and at present unsupported.

*The complainant does not hold the copyright to the material in question, is not the designated representative of the copyright holder, and therefore lacks standing to assert that my use of the material is a violation of any of the owner’s rights.

*Provide a complaint in written form. [17 USC 512(c)(3)(A)]

*Include a physical or electronic signature of the complainant. [17 USC 512(c)(3)(A)(i)]

*Identify the specific copyrighted work claimed to be infringed, or, if multiple copyrighted works are covered by a single complaint, provide a representative list of such works. [17 USC 512(c)(3)(A)(ii)]

*Provide the URLs for the specific files on my web site that are alleged to be infringing. [17 USC 512(c)(3)(A)(iii)]

*Provide sufficient information to identify the complainant, including full name, mailing address, telephone number, and email address. [17 USC 512(c)(3)(A)(iv)]

*Include a written statement that the complainant has a good faith belief that use of the disputed material is not authorized by the copyright owner, its agent, or the law. [17 USC 512(c)(3)(A)(v)]

*Include a written statement that the information in the notification is accurate, and under penalty of perjury, that the complainant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. [17 USC 512(c)(3)(A)(vi)]
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This communication to you is a DMCA counter notification letter as defined in 17 USC 512(g)(3):

I declare, under penalty of perjury, that I have a good faith belief that the complaint of copyright violation is based on mistaken information, misidentification of the material in question, or deliberate misreading of the law.

My name, address, and telephone number are as follows:

(address here)

I hereby consent to the jurisdiction of Federal District Court for the judicial district in which I reside (or, if my address is outside the United States, any judicial district in which you, the ISP, may be found).

I agree to accept service of process from the complainant.

My actual or electronic signature follows:

(electronic or actual signature here)

Having received this counter notification, you are now obligated under 17 USC 512(g)(2)(B) to advise the complainant of this notice, and to restore the material in dispute (or not take the material down in the first place), unless the complainant files suit against me within 10 days.

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As soon as the service provider receives your letter…. it notifies the complainant and awaits their response.

The downside is that as part of the “Counter Notification Letter” you  DO have to state that you will accept a lawsuit from the “Cease and Desist” people.

(Before you send a counter-notice, you should consider carefully whether you are in fact infringing the complaining party’s copyright. There are two reasons for you to consider this carefully. First, the counter-notice requires you to state, under penalty of perjury, that you have a good faith belief that your material was wrongly removed. You do not want to make this claim lightly because it might come back to haunt you. Second, if the complaining party has a good infringement claim, sending a counter-notice may trigger a lawsuit. If you are not prepared to stand up for your use of the copyright owner’s work in a lawsuit, you should think twice about firing back a counter-notice.)

Initially this sounds frightening but it actually works in your favor. For if you were actually infringing on the original “Cease and Desist” people, they could and would have legitimately already filed a lawsuit against you without using the DMCA – thus this requirement on the “Counter Notification Letter” does not open you up to anything that you weren’t already liable for. To pursue, the original “Cease and Desist” people must file a lawsuit IN YOUR DISTRICT COURT if they want to continue. Frequently this would involve travel and legal expenses on their part. If they do not file a lawsuit (most likely outcome), your web host will restore your web page on the tenth day and you are back in business again.

If they do sue, and what you are exposing IS important for society to know… there are some other tricks you can use to keep the material up, tricks which can be loosely defined as making multiple copies and spreading them all over the Internet.  Unless there is a specific instruction stopping you, there is nothing to prevent you from creating another web page that has essentially the same information. If the original page had illustrations, alter them slightly (use any photo editor, add arrows, captions, etc.) so they are “different”. Give the illustrations, and the page a new name (URL identifications), etc. Then put the new page up. If there were links to your old page, include both the link to the old page and your new page in these prior links. If nothing else, this will get your new page into Google’s indexes.

You could even open a new website using the “Free” website offers that are available from many web hosts. Just use the old material on your new free website. Be sure to include a link from somewhere in your old website to “Another example of <whatever> can be found at <your new free website>”. This link will be all that Google needs to get your new website into Google’s index. The object of course, is that you want people to be able to see what you are criticizing. The “Cease and Desist” people will eventually find out about the new website and may repeat the DMCA attack. However they will be spending more effort than you are, and will eventually be forced to give up.

Finally, bring up your problem in an online talk group – e.g. one of the Google Groups. If you are having a problem with the “Cease and Desist” people, the chances are there will be a lot of other people that aren’t happy about them either. Start a “thread” about your problem, and you will probably hear from a lot of people that would like to help. This might well included people outside the U.S. who are not subject to DMCA attacks.

As bloggers (still a new concept legally) you do have some protections. Already it is standard that short quotations will usually be fair use, not copyright infringement. The Copyright Act says that “fair use…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”  This seems to cover the expose of test questions if done for the public good, but not if stolen by a competitor, which would be theft. It will eventually rise to some court to ultimately decide on who has the upper hand here, the citizens of this country, or an LLC whose headquarters are in England.

American Copyright law particularly favors “transformative” uses — commentary, either praise or criticism, is better than straight copying — but courts have said that even putting a piece of an existing work into a new context (such as a thumbnail in an image search engine) counts as “transformative…

As long as you don’t intend on making money or having people substitute your questions for the ones on the test (laughable in this case), you maintain a great chance of never being sued.  Furthermore and the lawyers of Pearson know this, if in your expose`, you either mocked or parodied the questions, even criticizing them so effectively that no one wanted to by them, THAT STILL DOES NOT  count for having “an effect on the market” under copyright law…..

Furthermore, you are free to report the facts and ideas embodied in another person’s article or web page or test. Copyright only protects “the expression” — the “combination of words and structure” that expresses the factual information — not the facts themselves. By changing a few words around so it is not an exact duplicate, you become even further protected and insulated against court action.

Furthermore,  if  you can establish harm occurred to you in any way by a takedown notice (LLC’s use this all the time) you can use the DMCA’s section 512(f) to sue back.“Any person who knowingly materially misrepresents under this section (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”

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So, see, the law IS not one sided, that is, as long as you pursue and engage in the process… Usually DMCA takedowns only involve one or two steps….

  1. Either the person receiving the takedown does not contest and removes the offending content as requested….
  2. Of, a counter notice is filed and after 10 days, the material can be reposted….

It rarely goes beyond…

For if Pearson were to file an injunction after you responded, there is nothing to stop you from opening a new website and reposting the material.  If they went after that, it would cost them double, and if it happened again, it would triple the expense they must undergo.  It is called putting money down a rabbit hole.

Why then are counter notices not more frequently done?

Most infringers (as well as most legitimate users) aren’t invested enough in their uploads to invest the energy to learn how to file a counter-notice or take the legal risk in filing one.

Furthermore most people who are subject to a DMCA takedown are unaware of the opportunity to file a counter-notice and many on-line hosts do a very poor job of explaining the process.

It is to this last point, that I address this post.  For the more you know about take-downs, the less you have to fear….

In this case, since we are dealing with the brains of little children and not with something we popped up on our website without thinking, it would be advantageous for everyone who reads this, to send their server a letter (feel free to copy from the above- it’s fair use) and hit Pearson back with as many counter notices as they sent notices…

The law is actually on your side, not their’s; as experts in the law, they know it.  They are just hoping you don’t…. and never find out……

But, there is one more reason, WHY everyone here who was ordered by Pearson to cease and desist, should file a counter notification…..

To bar repeat offenders, the DMCA law requires ISP providers to keep track of how many takedowns you get. Responding with a counter, puts you back to zero.  Right now, everyone who received a takedown notice has a “strike” against them. If you file a counter, that strike goes away… If you don’t, it stays…. you only get three and then you do get kicked off the internet. In today’s world, that is serious.

So before you forget. respond to your ISP and say the take down was done in error. You had fair use of the material.

 

Here are her educational proposals (in case you did not know).

A. Remold the entire American system for human resources development…scaling up the whole new human resources system nationwide over the next four years, using the (renamed) apprenticeship ideas as the entering wedge.

B. Create a seamless web of opportunities, to develop one’s skills that literally extends from cradle to grave.

C. It needs to be a system driven by client needs,  (Clients?)  guided by client’s clear standards and regulated on the basis of outcomes that providers produce for their clients.

D. Proposed Methods To Accomplish These Goals.

1) scaling up the whole new human resources system nationwide over the next four years, using the (renamed) apprenticeship ideas as the entering wedge.

2) combine initiatives on dislocated workers, a rebuilt employment service and a new system of labor market boards to offer the Clinton administration’s employment security program.

3) concentrate on the overwhelming problems of our inner cities, combining elements of the first and second packages into a special program to greatly raise the work-related skills of the people trapped in the core of our great cities.

4) advance the elementary and secondary reform agenda.

E.  Clear national standards of performance in general education and public schools are expected to bring all but the most severely handicapped up to that standard. Students get a certificate when they meet this standard, allowing them to go on to the next stage of their education.

F.  We have a national system of education in which curriculum, pedagogy, examinations, and teacher education and licensure systems are all linked to the national standards.

G.  We have a system that rewards students who only meet the national standard, with further education and good jobs, providing them a strong incentive to work hard in school.

H.   Our public school systems are reorganized to free up school professionals to make the key decisions. Most of the federal, state, district and union rules and regulations that now restrict school professionals’ ability to make these decisions, are swept away.

I.  There is a real — aggressive — program of public choice in our schools, rather than the flaccid version that is widespread now.

J.  All students are guaranteed that they will have a fair shot at reaching the standards: that is, that whether they make it or not depends only on the effort they are willing to make, and nothing else.

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Ok… here is my comment… Words can be used or misused.  If these ideas sound great to you, understand that all the measured results hinge on Item J above.

The current Smarter Balanced and PAARC through leaks made by students and teachers everywhere have been conclusively shown to be unfair to minorities, disabled, English language learners, the impoverished, or people who deeply believe in religion. All are put to a disadvantage compared to those who receive excessive stimulation from the cradle to kindergarten at home… To the difference of entering kindergarten with a 10,000 word vocabulary advantage…

The  biggest problem with Common Core, Race To The Top, the lowered NEAP scores, the drop in Smarter Balanced Scores over the previous DCAS, the pinning of teachers performance to the test, and school closures, etc.,…. is that the test is flawed… It is designed NOT to be fair, but the exact opposite… IT IS DESIGNED TO BE VERY UNFAIR AND SEPARATE THE WHEAT FROM THE CHAFF VERY EARLY ON……(“By 2nd grade we will know who and who is not, going to college” –Arne Duncun.)

If you are black; you will be 2nd class no matter how hard you work (no more black brain surgeons); if you are Hispanic and have parents who speak Spanish, no matter how hard you work, you will be 2nd class (no more conservative Hispanic immigrants running for Republican President); if you are disabled, sorry, automatically 2nd class; if you are gay or transgender, again sorry, you will be fixed to remain in the 2nd class; if you hail from fundamentalist religions, forget it, you will persecuted and designated 2nd class.  Bottom line: if you think differently from how an executive thinks,  your test guesses will not be correct, and you will never be given the opportunity to try your hand at making a decent living. Because:  “We” have already decided what you can or cannot be…

Now rereading that last paragraph, I know it could possibly sound to those who’ve not read previous in-depth test critiques,…. perhaps, a little overblown? Or stretching the fear envelope a little?

My simple answer is for you to take the test (click the blue colored link), find your child’s grade level and take the test yourself… (the answers are also there so you can check your results; if you disagree with the answers (you will), you can also see the reasoning (or lack of it) as to why they chose their answer…

If you don’t come away from that experience thinking this test is nothing but arbitrary in its questions and responses, then you too have great executive potential in this upcoming brave new world created in alignment with corporate values done without any input from teachers, parents, students, or school districts….

Boils down to this:  it’s the test, stupid… It’s all about the test…It is only about the test… Change the test and some of these ideas are not bad… Keep the test and they will doom the next generation of Americans to the complacency of just being adequate at best, or chaos at worst…

In the meantime, I’d recommend all educationally concerned parents to vote for someone other than Hillary.  Not for any personal reasons or for support to other candidates.  Just that her ideas for education are bad for the nation’s future.. That’s all.  If you reading this have any pull with her, get her to change her views, will you?

 

 

Just putting it out there.  Because we are all thinking it…..

We can’t change the past.  Our focus needs to be on why Howard is receiving “special” protection as these bits and pieces of reality slip past their ability to control all aspects of their information dissemination…

In plain language, why are the police, city, and state administrations proceeding in rather odd peculiar ways to each of these developments?

Our schools are not safe.

We don’t care if the rich have to pay more taxes.. We need it done… They can lose a teeny tiny bit of their future income so that real human beings don’t have to lose a son or daughter they send off one day to a public school…..

He lost. The teacher who was number one in the state before having her children tested, who then failed her evaluation after having her tested children scored by the state, whereas the both years’ children’s scores were practically identical, has won.  She was deemed to have been treated unfairly by the VAM test developed by then head of New York’s Public Education John King, now the new Secretary of Education for the US.

The judge was clear.  The teacher had a high bar to reach to prove her low evaluation was based on solely on actions “taken without sound basis of reason or regard to the facts”.

To this she proved…“.In sum, the court found the petitioner has met her burden of establishing that her growth score and rating on for 2013-14 was indisputably arbitrary and capricious.”

The decision should qualify as the persuasive authority for other teachers challenging growth scores throughout the country.  The positive outcome of this decision was in part due to the expert testimony of the following, whom I’ll include here for future lawsuits to reference.

Professor Darling-Hammond,

Professor Pallas,

Professor Amrein-Beardsley,

Professor Sean Corcoran

Professor Jesse Rothstein 

(Please click the links for contact references)…

New York Supreme Court Judge Roger McDonough stated his decision was strictly for this case and he could not go beyond it to rule all evaluations “null and void”, because the evaluation process has since been changed.  But even so, this is the first time a judge has ruled that tying evaluations to a standardized test is “arbitrary and capricious”.  There are 49 other states out there who right now, all need their own court case to lock this bad policy in a casket six feet deep where it belongs….

Standardized tests do not belong in an evaluation process.

 

Emerging studies presented recently at the American Educational Research Association national conference suggest new ways to emotionally support students during transitions—and how badly things can go wrong when students don’t feel supported.

2,119 students in 10 middle schools were interviewed across the country, with about 60 percent of students in poverty.

Students who frequently distracted themselves, accepted their emotions, asked for help, and reappraised the situation to change their perspective had higher levels of what the researchers called “school and general well-being.” Students who felt they had more internal control were coping in healthier ways.  By contrast, students who mentally rehashed the stressful situation—called “ruminating”—fared worse.

Results of which were a no-brainer to real parents… A revelation to “corporate educational “experts””.

The “test” applied strategies used to alleviate stress among college students, to those in middle school.

The students in the test were given made-up quotes allegedly written by real students the year before which showed they too had apprehensive stress.   “I felt like I had a knot in my stomach the first four months,” read one such quote..

At the year’s end, the results including grades, test scores, and surveys of general well being, were considerably higher in those classes who were led to believe that stress was a temporal factor, that teachers were there to help,  and given the inceptional idea that  “the knot” would disappear. It acted as a self-fulfilling prophecy.

Also important, an additional study focusing on those students who DID NOT get any well-being treatment. found that district policies can backfire when leaders don’t take students’ emotions into account.

In the 2016 book When School Policies Backfire: How Well-Intentioned Measures Can Harm Our Most Vulnerable Students, researchers found the school community felt betrayed by the closure—it had been assured the school would not be closed before the school board voted to do so—and students felt blamed for the closure even a year later.

The district had dubbed the closure a “rescue mission” intended to settle students into higher-performing schools and boost their graduation chances. Instead, students’ academic progress declined. While students had grown on average 20 points per year in math and 19 points in reading from 6th through 10th grade on annual district tests at their previous school, in the years after the closure they lost 2.3 years of typical score growth in math and 3.7 years in reading. Their likelihood of dropping out of high school doubled as their graduation rate fell.

It is obvious to all, that the push for testing has destroyed any emotional well being in students and therefore is the anathema to real learning and successful graduations.

Every parent and grown up adult, knows by experience in life, that learning and emotions are intermittently mixed.
Now, if we could only get some grown up adults in charge of the Delaware House and Senate Committees, on the state School Board, into the Delaware Department of Education, and even into Rodel, we as a state might begin the process of returning Delaware’s schools back to the progress they were making before “Corporate Reforms” came in and ruined absolutely everything….

They did, you know, ruin everything…

 

 

.

 

District $ Per Student

Courtesy of Edweek.org

Vergara Ruling Overturned by State Appeals Court….

A California appeals court, reversing a trial court’s ruling in the landmark Vergara case, has found that California’s job-protection laws for teachers do not in fact violate the state constitution’s equal protection guarantee.

 

The appeals court ruled April 14 that the plaintiffs in the Vergara case had failed to prove sufficiently that the state’s teacher-employment laws, including tenure and termination provisions, “inevitably cause a certain group of students to receive an education inferior to the education received by other students.”

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Exactly what those of us who read the transcripts all said… We called it a kangeroo court because it decided it decision based on shots called down to it, and not on the evidence put before the court.  There was no way the evidence pointed to that decision.

 

This is good news.   In the national test-case for unions, Unions have been declared legal and can stand stronger now……

A similar case to Vergara was  just filed in Minnesotaand this decision may put a knife in it early up there.

Having read Kevin’s account of the Donna Johnson trying to make the case for banning public comment at State Board meetings, a case that baffled everyone in the room, it opens a door into what is really going on….

There is a standard question on corporate profiling questionnaires which asks whether you think it is funny when someone falls down…. Although the corporate answer to that is: what does the boss think, in real life outside the corporate world, the answer depends on how close our relationship is to the victim… if it’s our mother, it’s not funny.

Watching Donna Johnson fall down and keep slipping as she tries to regain her footage each subsequent time, reminded one of that question. There I’m sure were some who gleefully watched her twist in the wind… But even Kevin says he felt sorry for her…

Things like this would be funny if it didn’t affect 130,000 of Delaware’s children… And the dialogue that took place under questioning from House Education members, made an overall picture very clear.

WE are in a transitioning phase…. The DOE which once was stacked to the top with corporate whores, now has those whores all heading for the door… What once made very good sense in a corporate bubble, now with no bubble walls to bounce off the echoes, lacks the high frequency of repetitions required to make it become absorbed as truth.

In the past, and correct me if I’m wrong, if Donna Johnson would make a nonsensical statement, Mark Murphy would chime in with nonsensical word salad, then Penny Marshall would add some nonsensical word dessert and Paul Hefferman would follow up with nonsensical word coffee and his word nuts, and listeners would be too full of words to take in anything else without first going to the word toilet….

And that is how so much crap became law……

Now without the support, the idiocy is wide open…  bringing us to this probably important question… Can the Department of Education do its job if it is seen as being staffed by idiots?

And no, they are not idiots.  They are smart people in the wrong place at the wrong time.. They have one agenda which is charter propagation…  In a water where everything is pro-charter they function fine.. If they have to leap out of that environment, before they could always trust gravity would  bring them back into the ocean in which they were comfortable.

But now, they keep coming down  on land…. And watching them flop about is kind of sad.

At stake is can the Department function with this rift?  And that is why I think Godowsky needs to set his future goals in public education,  determine which members of his staff can get him there and who needs to go elsewhere, and create one team all on the same page, so we can put the shenanigans forever associated with the tenure of Mark Murphy, behind us.

If there is anything a numbers person admires or appreciates, it is someone who does state budgets 7 years in a row.  Yours was a herculean task. Like Clark Kent, laymen will never understand the super powers that lay therein, but rest assured, some of us do know.

You are a credit to our kind…..

Welcome home, soldier…….

Ann Vasalli…

 

If you didn’t first see the legal expert’s video go here and then come back….

It is not a warning, but just a reality check as to what “could” happen you you as a parent if you allow your child to take the Smarter Balanced Assessment…

Moving forward now, here is what that new legislation should address.

Whereas behavioral, class attendance, class performance and traditional forms of data like grades have been collected, now there is greater interest in collecting metadata which is information about how a child is interacting with the program, interacting with the software, data which is highly marketable and a lot of companies are scrambling to obtain that data. They are looking at it to assess school products, to assess teachers’ teaching methods, and to assess a child’s future in order to open and close doors long before a child reaches the hallway those doors are on.

The question hereto unasked, unsolved and unanswered, is how are we going to structure that access to data…  so it is fair to children, to parents, to teachers, to schools….

The worst-case-scenario is abuse of these to harm children.. instances where they are improperly tracked and improperly labeled and improperly sent down wrong pathways they shouldn’t be sent.

All because of bad data practices….

Before going forward, we need to have “good” data practices implemented and have teeth in the law so even bad people will want to do good…

Necessary to this is a blanket protection on ALL data acquired on a child… All data is unavailable to anyone outside those directly involved. The scope of protection…. has to be very broad….

Next step is to establish very clear use restrictions…. as in what can this data be used for?… Make it open and shut… “Can this data be used by Skippy Peanut Butter?”  “Let us check the clear use restrictions.”  “No, it does not allow transference of data to Skippy Peanut Butter”….  Open and shut.

Then we need to add a flexible option, so educated parents can choose to “opt in” on having other sources of information disseminated about their child…  It becomes the parent’s choice whether their child’s data can be used and to whom those additional users may be.

And finally to all of these there should be added some type of repercussions, which are strong enough to make violating any of these tenants, financially risky.

Currently there is none. Nada.  The only restriction is in FERPA  The Federal government can withhold money from a school district if there is a violation of FERPA. In the 41 years of FERPA, that has never happened. If a school district violates your child’s privacy, if the State violates your child’s privacy, if a vendor violates your child’s privacy, as a parent, you have no private right of action.

In this environment, your child’s data once acquired, is available to all. John Carney can even acquire a list of marginal students and call their parents to get their votes.  Everything is wide open.

As a society we often venture into new territory first, learning as we go.  The first cars didn’t have brakes because you just previously told the horse to slow down; the thought did not cross their inventor’s minds until racing down the road. When we went into Iraq, we didn’t have a plan on how to govern once we took over.  Dick Cheney didn’t think of it. We’d just take it and suck out their oil.

Today, we don’t let just anyone drive. They have to demonstrate they know how. Likewise today we don’t let anyone set up and operation room and extract live organs. They have to prove they are capable in knowledge and ability.

Therefore we really shouldn’t allow the Smarter Balanced to go forward until we fix these problems it leaves in its wake. Should we?

Here is the approach which should be taken. WE need a figurehead bill put up that WHEREAS’s all the facts listed above, to preface a bill advocating the immediate eradication of the Smarter Balanced for security reasons, as our one test in Delaware. This won’t pass nor is it intended to.. It’s purpose is to create a lightning rod for all educational wonks on both sides to focus their attention upon. Despite a probable prognosis for failure, the full-press  floor fight for its passage should be passionate, since that is what drives public scrutiny and shapes public opinion.

Then invisibly, under the radar, 4 new bills need to be quietly slipped through, addressing the plugging of each of the 4 holes illuminated above…  Bill 1) We need state blanket protection of all data. Bill 2) We need to determine exactly who, what, where that data will be allowed to go. Bill 3) We need to allow parents the right to “opt in” into allowing further data to be disseminated. And finally Bill 4) we need some type of gigantic bankruptcy-causing-punitive-damage and jail for anyone violating a child’s privacy without the express permission of his parents.

By then (if our crystal ball is correct) the Smarter Balanced will most likely have been replaced with another test (unless it scores a magnificent save this year) and the above protections will be in place long before any new test (if any at all), materializes…

 

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