Navigating the Labyrinth: Who Controls Curriculum and Educational Materials?
The question of who ultimately controls what is taught in schools, and who owns the intellectual property generated within educational institutions, is a complex and often contentious issue. This exploration delves into the various stakeholders involved in curriculum development and the intricate legal and practical considerations surrounding educational materials, drawing insights from historical perspectives on educational governance, contemporary legal frameworks, and the evolving landscape of digital learning.
The Shifting Sands of Educational Authority
Historically, the control of educational curricula has seen a dynamic interplay between different levels of government and the educational community itself. In the United States, a fundamental principle is that "neither the word ‘education’ nor the word ‘school’ appears in the Constitution of the United States." This absence underscores the decentralized nature of educational oversight, with primary responsibility traditionally residing at the state and local levels. However, the federal government has, at times, asserted influence. For instance, federal law mandates standardized testing in reading, math, and science, and in the early 2010s, financial incentives were provided to states adopting the Common Core State Standards. These efforts, while aiming for a degree of national consistency, have also sparked debate, particularly among advocates for greater local and state control.
The complexities of educational decision-making were brought into sharp relief during the spring of 2020, when widespread school closures due to a global pandemic prompted intense discussion about how and when American schools would reopen, and crucially, who would make those decisions. This period highlighted the enduring relevance of questions surrounding educational governance, echoing the concerns raised in Mike's 1985 book, "Who Controls Our Schools?: American Values in Conflict." His work, influenced by academic mentors like V.O. Key and Sam Beer at Harvard, explored the intricate relationship between American values and the forces shaping educational policy. Key, a pioneer in quantitative techniques in regional studies, and Beer, an expert in American Federalism, provided foundational insights into the structures of governance that impact education. John Dunlop, another influential Harvard figure, saw himself as a "fundamentally a problem-solver with an abiding interest in the workplace," a perspective that Mike, after his retirement from Stanford, also embraced in relation to the classroom. Mike's own academic journey, marked by a "portmanteau approach" to his doctoral degree in Political Economy and Government, and his subsequent role as president of the California State Board of Education, provided him with a deep understanding of the multifaceted nature of public policy implementation across different agencies and levels.
State and Local Pillars of Curriculum Control
While federal influence exists, state and local entities form the bedrock of curriculum control. In Texas, for example, the State Board of Education plays a significant role. This board is responsible for developing and refining the Texas Essential Knowledge and Skills (TEKS), the state's curriculum standards, in partnership with educators, parents, business leaders, and other Texans. The 15 members of the State Board of Education are elected by Texans, with staggered terms ensuring a degree of continuity while also allowing for periodic shifts in perspective. Each member represents a distinct region of the state, ensuring broad geographical representation. The board's recent approval of a new curriculum that included Biblical lessons underscored its tangible power over public school lessons. Beyond the state board, local school districts and individual schools also exercise considerable autonomy in how curriculum standards are translated into classroom instruction. Teachers, as the frontline educators, are instrumental in bringing the TEKS to life for students, while simultaneously adhering to state and federal mandates. The "Answer Key" initiative in Greater Houston, aiming to assist families by addressing important questions about education, exemplifies the ongoing public engagement with these critical issues at the local level.
Intellectual Property in the Classroom: A Murky Domain
A more recent and increasingly pertinent dimension of educational control revolves around intellectual property (IP). As schools embrace digital resources and teachers develop innovative instructional materials, questions arise about ownership and rights. Under copyright law, specifically the "work made for hire" doctrine, materials developed by an employee "within the scope of his or her employment" are typically owned by the employer. This means that course outlines, handouts, tests, and other curriculum materials created by a teacher during their employment and as part of their job duties generally belong to the school. Consequently, a teacher cannot, without the school's consent, take these materials to a new employer, use them for private tutoring, or sell them elsewhere.
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Consider the case of Sarah Harris, a music teacher who, at the request of her department head, developed an extensive new course on music history, including an outline, reading lists, and assignments. This course, "The World of Music," became highly popular. When Sarah later moved to a different school, Blackstone Academy, her former employer, Farnsworth School, allowed her replacement to use all of Sarah's meticulously developed materials. Legally, Sarah could not use the full set of materials at Blackstone unless Farnsworth had a specific policy permitting teachers to transfer such materials. However, she could develop a new course that built upon the ideas and concepts of the Farnsworth course, as copyright law protects specific expressions, not underlying ideas. Sarah might also have recourse through the doctrine of "fair use," which permits limited use of copyrighted materials for non-profit educational purposes, allowing for the use of excerpts.
The legal standing can become more ambiguous if a teacher can demonstrate that curriculum materials were developed on their own time, without a specific mandate from the school, and went beyond the expected duties of their position. In such scenarios, the teacher might argue that they, as the creator, own the copyright. This distinction is crucial, as it determines whether the school can freely use the material or requires the teacher's consent. As teachers move between institutions, they may develop new syllabi, handouts, and tests. Under copyright law, only the new additions to these materials, if created within the scope of employment, would belong to the current employer. To preempt such ambiguities, schools might consider entering into written course-development agreements with teachers, clearly defining ownership and usage rights from the outset.
Student Creations and Institutional Policies
The question of ownership extends to student-created work, particularly in environments like "maker spaces" equipped with advanced technologies. Unless a specific agreement states otherwise, students generally own the intellectual property they create, whether it's a painting, a play, a computer program, or any other creative output. This ownership holds true even if the work is developed on school premises using school resources, provided the student has paid tuition and fees for access to those resources.
The proliferation of online learning platforms and digital content has further complicated the IP landscape. A teacher creating a "Creative Commons" curriculum on a publicly accessible platform, like a Google Site with a purchased domain name, raises concerns about institutional control, especially if the teacher departs from the school. If such materials are developed as part of a teacher's job responsibilities, using school resources, the argument leans towards the school "owning" the course and having the right to host or copy it onto a school-controlled platform. If, however, the material was created independently, outside the scope of employment (e.g., for a personal project or a college class), and not required by the district, the teacher would likely retain ownership, with the school benefiting from the Creative Commons license.
This highlights a gap in many K-12 institutions, which have historically not done enough to define the intellectual property rights of teacher- and student-created materials. Universities, with their longer traditions of scholarly work and research, have often developed more robust IP policies. For instance, the Minnesota State Colleges and University (MnSCU) system outlines policies distinguishing between "Institutional Works" (works made for hire) and "Scholarly Works" (creations reflecting research and academic effort), with student works generally belonging to the student.
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K-12 schools, however, often require more standardized and continuous curricula to support state standards, meaning teacher-created materials supporting these standards can be valuable for widespread and extended use across multiple educators. To address this, some initiatives, like the MN Partnership for Collaborative Curriculum & Innovative Instruction, establish clear property rules upfront for specific projects, with teachers working for a set payment and understanding they grant access via Creative Commons without retaining ownership.
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