open education policy
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Open Education Policy
To: Chief Technology Officer (CTO), Obama Administration
Arne Duncan, Secretary of Education, Obama Administration
From: Claire M. Fontaine
Date: December 28, 2008
EXECUTIVE SUMMARY
Open education policy has great potential to enhance value, quality, and equity in
public education. We can use the sharing power of the Internet to improveeducational opportunity and advance social justice both domestically and
internationally.
Open educational resources, including curriculum materials and other learning
resources in the public domain, are viable and less costly alternatives to purchased
and licensed curriculum materials and learning resources.
Unclear and restrictively interpreted provisions of copyright law concerning
educational uses of copyrighted material threaten to retard the establishment of
educational best practices for the innovative use of digital technology.
Not only is this bad for education, it is also bad for copyright. We need a new
paradigm for intellectual property that is more consistent with the original spirit
and intent of copyright law to promote and reward creativity and innovation.
President-elect Obama signaled his support for transparency, access, interactivity
and reuse by adopting a Creative Commons license for the transition website.1 In
so doing, he established a precedent for the Obama administration's approach to
intellectual property. Cabinet appointees should take advantage of this opportunity
to make government agencies more transparent and responsive.
The federal government should advocate for open education policy on both the
material and the rhetorical level.
In terms of rhetorical strategy, the argument for open education policy should be
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1 http://change.gov
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framed to emphasize accountability. Schools and local districts must be held
accountable to the taxpayers who support them. Good stewards of public
resources do not pay for what they can get for free. Taxpayer funds must not be
used to purchase or license curriculum materials and other learning resources
when open educational resources represent a viable alternative.
In material terms, the federal government can create incentives for states and
districts to adopt open education initiatives by making funding contingent upon
compliance with open education policy.
Schools and districts should take advantage of the knowledge and expertise of
area universities and cultural institutions. Collaborative partnerships between
schools and universities, as well as with museums and libraries can be established
to develop new open educational resources and the repositories in which to store
them.
When public funds go to support the development of new curriculum materials
and learning resources, said products must be released under licenses that permit
free use, reuse, revision and redistribution in order to maximize the benefit to
public schools and the public at large.
Support bottom-up approaches to copyright reform like the Creative Commons
licenses. Given the negligible cost of open education resources, open education
policy will certainly reduce curriculum expenditures in the short term. But savings
will increase exponentially over time as more and more open educational
resources are developed, then shared and adapted across district and state lines.
THE PROBLEM
Copyright law in its current iteration bears little resemblance in intent and function to the
original copyright law. Fundamentally a child of the analog era, copyright law's transition to the
new digital era has been awkward. The U.S. Copyright Office has responded as if a threat had
been leveled on the sanctity of personal property. It has seen digitalization as requiring more
stringent regulation that the financial markets. But recent legislation like the Digital Millennium
Copyright Act (DMCA) of 1998 and the Technology, Education and Copyright Harmonization
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to as the Hewlett OER Report).
Blogger and open content advocate David Wiley defines open education resources as:
[OER are] curriculum materials or learning resources whose copyrights have
expired, that have been placed in the public domain, or that have been released
with an intellectual property license that permits their free use, reuse, revision, and
redistribution by others without further permission from the original authors or
creators.4
A prominent source of OER is the MIT OpenCourseWare Project, which makes available
original content from nearly all of MIT's active courses, about 1800 courses in total. The form
and genre of offerings vary across courses and departments, but typically include some
combination of the lecture notes, podcasts, course calendars, syllabi, assignments, exams,
problem sets with solutions, labs, projects, online textbooks, video lectures, and multimedia
simulations, tools and tutorials. Each course costs the Hewlett Foundation approximately
$25,000. But, the remarkable result is that anyone with Internet access anywhere in the world can
download MIT course materials in their entirety, totally free. And most astonishingly, MIT's
commitment to open access means that users can download unlimited materials without
registering and without providing a name or email address.
Everything that appears in OpenCourseWare is original material created by the professor
specifically for their web course. This policy ensures that MIT avoids possible copyright
infringements. When theprogram first began in 2002, the Foundation had some difficulty
recruiting professors when the program was getting off the ground; many who have since joined
attribute their initial reluctance to concerns the project might upset their research-teaching
balance. But early adopters were successful in a way that few inside the project had anticipated.
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4 http://opencontent.org/blog/archives/614
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The logistical demands of OCW gathering course materials, designing adaptations to better
serve a heterogeneous audience, converting all text documents into pdf format certainly
consumed valuable time and energy that might otherwise have been invested in scholarly
pursuits, but most professors' found that OCW brought them a degree of exposure, publicity,
renown and prestige that academic labor can rarely match. The most strategic careerists funneled
the momentum of nascent public intellectual status back into their scholarship. Sluggish
participation became a problem of the past and MIT's always strong reputation grew ever more
vital.
According to a press release issued by MIT on December 3, 2008, OCW has recently
reached a major milestone of attracting 50 million unique visitors worldwide to the website.5
Approximately 60% of traffic comes from outside North America, with East Asia, Europe and
South Asia heavily represented. The project owes its success both to the scope and quality of the
course materials as well as to the great prestige of the MIT brand name. The MIT OCW Project
and the publicity it has attracted reflect favorably on the broader OER movement and, according
to the Hewlett OER Report, has created a very successful, compelling, living existence proof of
the power of high-quality open educational resources and now operates as a catalyst for a
nascent open courseware movement (p. 13). So far, their example has encouraged hundreds of
other universities in more than twenty countries to share course materials through the OCW
Consortium, which contains materials for over 7800 courses in six languages.6
A coalition of educators, policy-makers, researchers, foundations and Internet pioneers is
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5 http://ocw.mit.edu/OcwWeb/web/about/media/50m/50m.htm
6 http://www.ocwconsortium.org/home.html
http://www.ocwconsortium.org/home.htmlhttp://www.ocwconsortium.org/home.htmlhttp://ocw.mit.edu/OcwWeb/web/about/media/50m/50m.htmhttp://ocw.mit.edu/OcwWeb/web/about/media/50m/50m.htm -
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supporting the emerging OER movement, signaling their support with signatures on the Cape
Town Open Education Declaration.7 Released on January 22, 2008, the declaration currently has
1931 signatories who have joined together to encourage governments and publishers to take
advantage of an historically unprecedented opportunity to enhance value, quality and equity in
public education through strategic utilization of new digital technologies and distributed
information networks. Although many users of OER live in developing countries which lack
comprehensive higher education systems and have consequently prioritized the development of
an Internet infrastructure as a virtual lifeline to economic development, OER cannot be
dismissed as poor man's curriculum. On the contrary, we in the United States have much to gain
from open education policies, such as the adoption of appropriate high quality OER rather than
commercial and proprietary purchased and licensed curriculum materials and learning resources.
The advantages of OER include:
1. legal clarity and simplicity OER make copyright status explicit
2. adaptable and customizable OER are intended for reuse, revision, remix, and
redistribution
3. save time OER relieve educators from having to create course materials
from scratch
4. source of publicity for scholars OER are distributed much more widely than
proprietary materials
5. contribute to the commons OER enrich the global education community of
the present and the future
6. social justice orientation OER benefit resource-poor individuals at home and
abroad
7. save money OER represent a significant cost savings over proprietary
alternatives
While the Open Education Resources movement has garnered support within the domain of
higher education, it has not been widely taken up in K-12 curriculum discussions. This is, I
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argue, due in part to the different ideologies of knowledge production and distribution that
predominate in the two arenas. Higher education operates on the premise that the professor can
be both an original producer of knowledge as well as one who transmits acquired knowledge to
students. While the emphasis may vary, with primarily undergraduate institutions typically
emphasizing the instructional role and research institutions tending to value the scholarship role
more, professors are nevertheless expected to fulfill responsibilities in both contexts.
The professor who in the past would have contracted with a publisher to write a portion of
the introductory-level textbook which she would have then used selectively alongside
supplementary materials of her own choosing may be sympathetic to students' concerns about the
exorbitant cost and thus elect to instead assemble the equivalent of a course packet online. The
schoolteacher, however, is typically faced with a much different set of circumstances. His aligned
and standardized materials are already bought, paid for, and waiting in shrink wrap in the supply
cabinet. The secondary content-area teacher is not regarded as an expert in his content area, and
so his freedom to make important, consequential decisions about the scope and sequence of his
course is circumscribed and ever-tentative. His knowledge is not valued like that of the college
professor. Consequently, administrators, parents and colleagues may question his decision to pass
up authorized and official materials like the standard textbook in favor of a self-assembled
collection. After all, in the context of public education, adherence to the curriculum is enforced
by high-stakes standardized tests typically used as indicators of teachers' competence and
students' progress.
Copyright Gone Wrong
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Throughout the history of copyright, its protections have become steadily longer, stronger,
and broader. The origins of copyright are traceable to the Constitution, and more specifically to
the following provision in Article I, Section 8:
Congress shall have Power... To promote the Progress of Science... by securing for
limited Times to Authors... the exclusive right to their respective Writings...
The drafters of this foundational document were interested in maximizing the benefit to the
public, not in protecting the author's income stream (Stallman, 2002, p. 79). They understood
that incentives can foster innovation, but they believed that any rights conferred to authors
should be temporary, sufficient to make creative entrepreneurial work worthwhile, but no more.
Once fourteen years in duration, copyright now lasts life plus seventy years. Its restrictions were,
at first, directed against the act of copying that is, republishing but now most uses are
restricted. And, where it originally applied only to printed texts, it now covers almost all types of
works, including images and sound.
The Copyright Act of 1976 ushered in a major change by giving copyright status to all
works by default once set down in final form. As digital technologies emerged and spread, this
clause came to include files saved to a hard drive or disk. Authors no longer would be required to
file for copyright protection; it would be conferred automatically and retroactively. Even
unpublished manuscripts would be eligible if declared to be in finished form.
But this sort of legal arrangement meant something much different in pre-digital 1970s
than it does in 2008. The popularity and prevalence of social media Internet activity indicates
that it is now common practice to incorporate and repurpose other's work. Cultural norms have
shifted in the same direction as technological capabilities toward expanded access to
information, but our legal structures have evolved in the other direction, adopting a more
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restrictive stance to information dissemination. In this way, the meaning and implications of
copyright laws have been totally transformed by the paradigm shift in modes of cultural
production and consumption, from the control paradigm to the new paradigm of disruptive
cultural digital practices.
The U.S. Copyright Office is now arguing that the transition from analog to digital media
has so fundamentally altered the nature of the cultural institution exemption that said exemption,
that was once provided for under the fair use clause, should be regarded as null and void. For
example, the Office is gearing up for an effort to scale back the rights of libraries, archives, and
museums to freely include copyrighted works in their digital collections. They also claim that
digitization in itself constitutes copyright infringement. When the fair use provision was first
added in 1909, legislators intended it to allow the use of copyright protected work for the
purposes of public commentary or criticism, parody, news reporting, teaching, research and
scholarship. But as Lewis Hyde (2008) argues:
It has been the strategy of the content owners not to negotiate guidelines but
to develop them on their own; to litigate and win clearly commercial cases
that are close to but not the same as nonprofit educational fair use; and to
then threaten educators with similar action in a manner such that the
educators sign on to a shrunken version of fair use, one that the very same
educators refused to endorse when the law was being written.
Just as fair use has been weakened by the threat of legal action and other strong-arm tactics of
content owners and big-budget producers, the educational opportunities created by recent
technological innovations have been similarly constrained by the adoption and legalization of
digital rights management (DRM) technology that locks up content. Copyright law reinforces the
power of DRM through the Digital Millennium Copyright Act (DMCA).
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The Copyright Office has implicitly acknowledged that the DRM systems may sometimes
prohibit even permitted uses of copyright material. They state in theirStrategic Plan for
2008-2013 that DRM systems offer a secure technological framework for distribution of digital
content that permits greater control over works than does copyright law (p. 26). If we
understand copyright law to permit certain fair uses of copyrighted material, and if we know
that DRM allows content providers to control access to information above and beyond the
limitations of copyright, then it follows that DRM would in some cases unlawfully restrict access
to content.
It is also clear that the Copyright Office has realized that public opinion is stacking up
against them. The Strategic Plan also cites the influence of file-sharing service and peer-to-peer
networks that foster illegal copying and distribution [and] have influenced a large audience,
including children and teenagers (p.18). These acts of so-called piracy have become normalized
and are not regarded as theft by the general public. Somewhat cryptically citing external
demographic factors which presumably refers to the younger generation, the document
strategizes that the solution is to create multimedia vehicles for their message of the importance
of copyright and related laws and principles as ameans of promoting creativity (p. 9). To this
end, the National Digital Information Infrastructure and Preservation Program (NDIPP) was
created this past fall. Among its projects to date is a flash-based website meant for teachers to
use with their students.8
This website reflects their assumption that the new modes of communication and
information dissemination adopted by users can be educated away. But Lawrence Lessig's recent
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8 http://loc.gov/teachers/copyrightmystery
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work suggests that this operative assumption of the Copyright Office is deeply flawed. InRemix:
Making Art and Commerce Thrive in the Hybrid Economy (2008), the ardent proponent of
copyright liberalization argues that to frame what has become normal Internet behavior as illegal
activity is a dangerous policy decision that unwittingly makes digital outlaws of otherwise law-
abiding young people. The danger here resides in the likelihood of individuals to react badly,
anti-socially, if persecuted for behavior that falls within the bounds of community standards. The
law can easily come to be regarded by these young people as irrelevant, arbitrary, capricious, and
lacking in integrity exactly what copyright defenders seek to avoid. Lawrence Solum calls this
the normalization of illegality.
More and more, public opinion is shifting into alignment with Lessig's stance.
Furthermore, the vast majority of individuals and organizations who share his commitment to
copyright reform are not fringe activists from outside the mainstream but rather people who
believe deeply in maintaining the integrity of our legal system. Lessig is a Professor of Law at
Stanford Law School and the founder of its Center for Internet and Society.9 He believes that if
we are not going to enforce a law, we should change it and make it into a law that we are willing
to enforce.
President-elect Obama and Lessig both previously taught at the University of Chicago Law
School. Obama consulted Lessig before announcing his adoption of a Creative Commons license
for his transition website, and the Wall Street Journal reported that Lessig's name has been
mentioned in connection with a commissioner post at the Federal Communications Commission
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(FCC).10 This would be a highly improbable development, especially in light of a recent anti-
FCC screed published inNewsweek, in which Lessig challenged Obama to seek to dismantle the
FCC and establish in its place an Innovation Environment Protection Agency (iEPA). The
proposed agency's core purpose would be to protect innovation from its two historical enemies -
excessive government favors and excessive private monopoly power.11 There is some
speculation in the blogosphere that Lessig may be seeking the appointment of innovation czar
and using hisNewsweekcolumn as a sort of public job application platform.12 Suspicions aside,
given the damage done to free market doctrine by the recent economic collapse, the zeitgeist
seems to be shifting toward more support for proactively interventionist government policies
inconsistent with the mission as articulated by Lessig. In any case, too much remains unknown at
this point for further speculation to be productive.
Although he has since redirected his attentions to combating political corruption through
his Change Congress project, Lessig's legacy is tightly bound up with Creative Commons.1314
The mission of Creative Commons is to promote better identification, negotiation and
reutilization of contentfor the purposes or creativity and innovation (emphasis added). The
Creative Commons project does not aim to replace traditional copyright and, what is more, is
fundamentally reliant on the premises underlying copyright law. The Creative Commons suite of
licenses offers an alternative model for managing distribution of and access to online materials.
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10 http://online.wsj.com/article/SB122929270127905065.html?mod=googlenews_wsj
11 http://www.newsweek.com/id/176809/
12 http://blogs.zdnet.com/open-source/?p=3222
13 http://changecongress.org
14 http://creativecommons.org
http://creativecommons.org/http://creativecommons.org/http://creativecommons.org/http://www.newsweek.com/id/176809/http://creativecommons.org/http://creativecommons.org/http://changecongress.org/http://changecongress.org/http://blogs.zdnet.com/open-source/?p=3222http://blogs.zdnet.com/open-source/?p=3222http://www.newsweek.com/id/176809/http://www.newsweek.com/id/176809/http://online.wsj.com/article/SB122929270127905065.html?mod=googlenews_wsjhttp://online.wsj.com/article/SB122929270127905065.html?mod=googlenews_wsj -
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While not the only alternative to traditional copyright, Creative Commons is the most popular
licensing model for OER content (McCracken, 2006, p. 1). Creators who adopt a Creative
Commons license for non-commercial uses of their work may also exploit the benefits of
traditional copyright for other, commercial uses. Alternatively or additionally, authors may
decide to use a Creative Commons license for digital versions of their work, and a traditional
copyright for tangible physical copies.
But even if an author decides to release a text in print form under a Creative Commons
license, as Cory Doctorow has done with the recently published Content: Selected Essays on
Technology, Creativity, Copyright, and the Future of the Future (2008), said author still stands to
earn royalties from sales. In a December 2006 article in Forbes, Doctorow gets off to an
auspicious start when he asserts: I've been giving away my books ever since my first novel
came out, and boy has it ever made me a bunch of money.Doctorow proceeds to describes how
and why offering free electronic versions of books actually tends to boost sales of the physical
book.
Creative Commons does not solve the problem facing our culture of a copyright regime
that is ill-suited for our technological context. It is a bandage, not a cure. And the Creative
Commons agenda does not seek to replace the existing copyright regime. Its aims are consistent
with the original intent of copyright law, from which it gets its authority. Indeed, in articulating
theirStrategic Plan, the Copyright Office echoed the language of Creative Commons when they
framed their youth re-education campaign as part of an effort to support the constitutional goal
ofencouraging American creativity (p. 9, emphasis added).
Traditional copyright law worked fine when limited access to and high expense of the
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modes of production pieces of elaborate equipment like the printing press, the motion-picture
camera and the record press effectively precluded private individuals from becoming content
producers. Only corporate and industrial actors gave any thought to copyright. Regulators sought
to maximize benefits to the public, or commons, while simultaneously encouraging innovation
by content-producers.
But the Internet has changed all of this. Now all of the regular people are potential
content producers. But we are still human, still fundamentally social creatures who engage in the
discursive social practices of debate, reflection, revision, elaboration and adaptation in our efforts
to make sense of our world. In the past, regulators were happy to take on corporations and
industry and let regular people alone to engage with each other and with their culture using
whatever non-digital media were handy. But thirty years of legislative and judicial developments
have shifted the target of copyright enforcement efforts away from businesses and institutions
and toward regular people. But it is equally critical to consider is the way in which the very
framework of the Internet may be contributing the problem.
Doctorow frames the impasse between the Internet and copyright as a struggle between
conflicting ways of thinking about and valuing, or not valuing, the act of copying. Both positions
are extreme, and both are the product of decisions by human actors faced with particular
problems. But the legal stance of copyright law, tovalorize copying as a rare and noteworthy
event, is decisively undermined by emergent dominant social practices most clearly expressed
through Internet usage patterns. Indeed, the blithely profligate copying practices of the virtuosic
replication machine that is the Internet could not be more antagonistic to copyright's reverence
for the act of copying. Doctorow understands ubiquitous copying as the Internet's most
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fundamental characteristic, the very purpose for which it was created.
The Internet is a system for efficiently making copies between computers... Every
time you press a key, the keypress is copied several times on your computer, then
copied into your modem, then copied onto a series of routers, thence (often) to aserver, which may make hundreds of copies both ephemeral and long-term, and
then to the other party(ies) to the conversation, where dozens more copies might
be made.
(Locus Magazine,November 2008)
This quotation gets at the issue of scale and reach that the Internet raises. The ubiquity and
embeddedness of the Internet in modern life mean that it is no longer possible to ignore that
which occurs there. Although the changed relationship between use and copying is more
accurately a consequence of digitalization than of the Internet, it is the networked nature of the
Internet that makes copyright into a controversial legal issue. Copyright owners would hardly be
as exercised about a single music lover playing music files over and over on a non-networked
computer than they are about peer-to-peer file sharing clients.
The Internet is engineered as a libertarian network that promotes access to information,
knowledge and ideas. Repeated acts of profligate copying, the Internet's basic modus operandi,
reject a basic premise of copyright law, that in order to promote creativity and innovation society
must incentivize production by granting creators control over the production, consumption and
distribution of said work. Herein lies the notion of intellectual property. But recall the larger goal
of copyright, which is to promote creativity and innovation so as improve the conditions of
social life. If copyright truly aims to achieve this lofty goal, it will be necessary to temper
enforcement of intellectual property with considerations of public welfare.
Part of Lessig's project is to explore how copyright balances intellectual property against
social benefits. He adopts the frame of remix as a device that reveals the hostility of copyright
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law to public discourse in the new distributed digital context.
The idea, first, is that you take creative work, mix it together and then other
people take it and they remix it; they re-express it. In this sense, culture is remix;
knowledge is remix; politics is remix. Remix in this sense is the essence of what itis to be human. (The Vision for the Creative Commons, p. 36)
First and foremost, remix, as the process by which culture is made, a process underwritten by
totality of Western culture, is and must remain legal. Secondly, copyright done well does
promote creativity and innovation, and the legal concept of intellectual property is central to
copyright. The problem, Lessig believes, is that our current copyright regime does not fit our
technological reality. What we need instead is:
a way to use intellectual property to enable remix, to enable it to occur without
threatening intellectual property... to make this system of creativity co-exist with
the system of intellectual property regulation. (The Vision, p. 45).
Creative Commons does not claim to fully resolve this dilemma. What it does claim, and what it
does quite well, is to allow users to remix responsibly. That is, Creative Commons enables
participation in social processes of online cultural production without copyright infringement. It
makes the arcane legal domain of copyright law accessible to the average person, thereby both
empowering and protecting its user-adopters. When applied to the domain of open educational
resources, Creative Commons supports the establishment of resource repositories where
educators can freely access lesson plans, unit plans, curriculum plans, and supplementary
materials. Although repositories already exist for the exchange of educational resources, many of
these resource banks are not as useful as they might be. The entire education community would
profit from the adoption of a common standard of Creative Commons licenses for curriculum
resources as part of a broader Open Education movement.
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CURRENT POLICIES SINCE NCLB
The Proliferation of Third-Party Providers
The expansion of the federal role in education since the reauthorization of the Elementary
and Secondary Education Act (ESEA), also known as the No Child Left Behind Act of 2001
(NCLB) has created new markets, which so far have been engines of profit for traditional
educational publishing companies and private educational contractors. But the significant funds
now paid to corporate entities by states and local districts in their efforts to meet the demands of
NCLB might instead be redirected to programs, organizations and initiatives that operate more in
the public interest.
While it has long been standard practice for local school districts to seek out contracts with
third-party providers to administer and score standardized tests, NCLB created new markets for
third-party providers to enter. In addition to test development and preparation, K-12 public
school districts now seek contracts in data management and reporting, content-area specific
programming, and remedial services (Burch, 2006, p. 2587). Spending by local school districts
for these services is at an all-time high, with local school districts now spending over $20 billion
annually on purchased third-party services (Stein & Bassett, qtd. in Burch, p. 2589).
It is not clear, however, that the services rendered by these third-party providers in their
new, expanded role are of the highest quality. Significant consolidation and vertical integration of
educational publishing companies has left just four major textbook publishers in the United
States who have all reaped large profits since the passage of NCLB. Texas and California, the
two largest K-12 textbook markets, together account for one third of all textbook spending,
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which gives government officials in these states outsized control of what gets produced. This
situation and the high cost of publishing textbooks creates an incentive for educational publishers
to only develop materials likely to be adopted in the Texas and California markets (Benkler,
2005).
In the post-NCLB era, the intense pressure of high stakes exams in ELA and Math has
prompted many schools to winnow their curriculum down to those subjects and topics that
students will face on the state exams (Crocco & Costigan, 2007). This is, in a very real way, a
matter of survival. If schools fail to meet their Annual Performance Targets for three years in a
row they are subject to takeover or even closure. Consequently, schools are eager to do whatever
they can to stack the deck in their favor, which is where high priced comprehensive curriculum
programs come into play. This is particularly the case for schools serving low-income students
who struggle against a whole range of inequitable conditions and persistently score well below
their more affluent counterparts on standardized tests. This so-called curriculum narrowing is
also reflected in the homogenization of the textbook market.
Given the amount of money at stake, leaders in educational policy would be wise to
consider other options that would keep taxpayer dollars in the public sphere rather than passing
profits on to corporations and their shareholders. Consider the challenge posed by Yochai
Benkler:
The question then becomes, to what extent is it possible to use commons- based production of educational resources, and in particular peer production that
pools the resources of teachers and interested members of the public more generally, to
produce a much more varied and high-quality set of materials out of which
teachers and schools could weave their own tapestries for students.
(2005, p. 3)
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of Management at Boston College, is now viewable online as a working document.17 Frank and
Shelstad's business model relies on customers to elect the print-on-order option, which will cost
approximately $25 for a black and white textbook and $39 for full color.
While the majority of open textbook development thus far has been associated with higher
education, certain projects do exist which are geared toward high school students. The most
successful K-12 open textbook initiative to date comes out of South Africa. Known as Free High
School Science Texts (FHSST), this project develops free science and mathematics textbooks for
high school students.18 Benkler notes that the project is more narrowly focused and more actively
managed than other, less successful open textbook projects based in the United States such as
Wikibooks19 and the California Open Source Textbook Project20 (p. 19). While FHSST materials
are certainly open to educators in this country, the project is funded by the South African
government and intended for South African students, which means that the available resources
are not linked to our state curriculum standards. FHSST is in this regard emblematic of the
underdeveloped condition of the K-12 Open Textbook and Open Education movements in the
United States. Given the intense pressure faced by teachers in American schools to raise student
test performance and the ready availability in most schools of curricular materials closely aligned
with state learning standards, it is unrealistic to expect educators to go against the rest of their
district in adopting materials not explicitly aligned with the established standards.
As teacher-columnist Jana Dean argues inRethinking Schools, districts have reason to
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17 http://gallaugher.com/chapters
18 http://fhsst.org
19 http://en.wikibooks.org/wiki/Main_Page
20 http://opensourcetext.org
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discourage the practice of individual teachers replacing predesigned resources with customized
curricula: School districts pay good money for this 'learning insurance' and understandably,
given the investment they've made, expect teachers to follow whatever program they've
purchased. However, Dean elaborates, while the existence of a lucrative national market does
create incentives for educational publishers to develop high-quality materials, the curriculum
choices of school districts around the country seem to show a distrust of teachers' ability to get
students where they need to go. Furthermore, Dean continues, teaching must not be reduced to
mere content delivery. Even under the best circumstances, she writes, the events in a lively,
engaging classroom simply can't be predicted years in advance and from five states
away (2008).
The point here is not that all ready-to-war curricula are useless. On the contrary, curriculum
systems and scripted curriculum guides can offer much-needed structure to new teachers and
even to experienced educators teaching a new course for the first time. There is no need to
discard expensive curricula already purchased, but we must also carve out space for development
of alternative, user-generated curricula. Digital technologies and Internet-sourced curricular
materials offer an much-needed alternative to educators frustrated with the instructional
resources selected and purchased by their district.
POLICY ADVICE
A New Approach
The dismissive hostility of the Bush administration to digital technology initiatives and
information freedom is at long last coming to an end. President-elect Obama has indicated in no
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for better or worse, part of the legacy of No Child Left Behind. Because there is no mention of
education in the United States Constitution, the responsibility for school governance has
historically fallen on states and local districts. As a result, funding levels can vary dramatically
from one district to the next, reflecting differences in communities' resource levels and
commitment to education. NCLB expanded the federal role in public education both materially
and symbolically, by predicating continued federal Title I funding on compliance with the
statute's student performance standards, and by strategically framing the public discourse in
terms of accountability to taxpayers. The implication is that although state and local authorities
control K-12 schools, the federal government can still exert considerable influence by
establishing funding priorities supportive of open education policy backed by a solid rhetorical
campaign.
The Cape Town Declaration's Strategy 3 on Open Education Policy could be helpful to this
process. It offers the following definition:
3. Open education policy: Third, governments, school boards, colleges and
universities should make open education a high priority. Ideally, taxpayer-funded
educational resources should be open educational resources. Accreditation and
adoption processes should give preference to open educational resources.
Educational resource repositories should actively include and highlight open
educational resources within their collections.
This language could be adopted and adapted by domestic proponents of open education policy.
Rhetorical strategists might choose to frame the argument in terms of accountability, but rather
than holding teachers accountable for students' performance on standardized tests, open
education policy would hold schools and districts accountable for the purchasing decisions they
make with taxpayer funds on curriculum materials and learning resources.
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Schools and districts have a responsibility to make the best use of limited public funding,
and they could reduce expenditures on curriculum materials by selectively adopting high quality
open educational resources that represent a viable alternative to purchased or licensed proprietary
materials. Decisions to purchase or license proprietary materials instead of equivalent open
educational resources must be justified to taxpayers. When public funds are spent to produce
original curriculum materials, these materials should become freely available open educational
resources under licenses that permit free use, reuse, revision and redistribution without
restriction.
Although NCLB mandates a testing battery, it does not establish a uniform national
curriculum or set national content standards. Curriculum is typically dictated by the district or by
the state. If open education policy is to be successful as a national initiative, it is critical to link
all resource development to existing state and local content and performance standards.
Productive open educational resource development projects will capitalize on local expertise to
create the most up-to-date and relevant materials that fill a real need. Federal support should be
provided to foster collaborative partnerships between local school districts and universities to
develop flexible, modular, standards-based curriculum materials that meet local needs. Federal,
state and local cultural and educational organizations like libraries and museums should also be
encouraged to partner with local and state educational authorities including school districts and
universities to support these curriculum development initiatives. All curriculum materials
developed in this manner should be made freely available in central repositories, widely
accessible in common formats, and be released without restriction under Creative Commons
licenses.
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