How laws (and judges) contemplate innovation

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Apr 15, 2014

People working in education policy often talk about the virtues of “opening up” space for innovation. Besides overtures of deregulation, this effort often manifests in creating new policies or funding streams that spur new approaches to education or that scale promising solutions such as federal Race to the Top grants. But short of generating new rules or creating pots of money to incentivize innovation, seeding new approaches to educating our students may also have to do with how we interpret existing laws.

There are a range of frameworks and rules of statutory construction around which the boundaries of laws get drawn. For example, some judges may deem the text of the law to reflect only what lawmakers at the time meant to say in their particular context. Other judges and agencies may interpret the law by gleaning from the text what lawmakers intended more broadly, but leave room for flexibility around how that purpose might be achieved as circumstances change.

In education, such distinctions can be vitally important in the interpretation of laws that were written before we contemplated the role that technology now stands to play in instruction. Champions of online and blended learning won a small victory in New Jersey last week, in a case regarding the use of blended learning in two charter schools. A state appellate court rejected a challenge by the New Jersey Education Association (NJEA), the teachers union, against the state’s 2012 approval of two Newark charter schools that planned to implement blended learning. As John Mooney reported, the NJEA maintained that the state’s nearly 20-year-old charter-school law did not explicitly allow for the use of “blended-learning” instruction. The court, however, saw no such limitation in the law and cited that the state’s charter school law gave the state’s education commissioner authority to approve “non-traditional teaching,” a broad category in which the court deemed more recent blended-learning models to fit.

This case bodes well not only for the two schools at hand in the case—Merit Preparatory School and Newark Preparatory School—but for other charter schools in the state hoping to implement blended learning. It is a compelling example of a relatively old law being interpreted in such a way as to accommodate contemporary technological improvements that stand to benefit students. New Jersey’s case also sheds light on a national trend of states wrestling with whether old laws can codify and regulate online and blended learning. It is encouraging to see judges in this case embracing the innovation intended by the original charter law and finding space in existing laws for the inevitable march forward of educational technology.

As I read about the case, however, I couldn’t help but think about how different policy battles will truly shape the growth of online learning. Although debates as to where online learning fits into existing laws could stand to pave or block the road to innovations in digital content and curriculum, these debates risk mistaking technology integration as the end goal, rather than the means of transforming how and what students learn. We shouldn’t lose sight of second order policies that stand to shape the circumstances in which online learning can become an engine for personalized learning.

Rather than narrowly considering instruction and curriculum tools, these other policies will have to consider the future of school accountability that can accommodate the new approaches and players that online learning brings to the fore. For example, policies that loosen the grip of seat-time, like those in New Hampshire or Iowa, can allow teachers to use technology in a manner that actually unlocks more flexible pace and pathways for students. Course choice policies, such as those in Texas and Louisiana, allow funding to follow students down to the course level, in turn unlocking the possibility that students can take supplemental online courses that would otherwise be unavailable to them. And performance-based funding laws, like those in Utah and Florida, stand to hold online providers accountable for their results. Unlike the debate in New Jersey, these policies do not focus on whether technology should be allowed in classrooms, but on the parameters that might ensure that technology is implemented in such a way as to benefit students and carve out the individual-learning experiences that technology renders possible. In many cases, the creation of such policies will likely require legislative or regulatory action, rather than simply the liberal interpretation of existing statutes.

As online and blended learning continue to expand, the next decades will witness a reinterpretation of existing laws, and New Jersey’s case provides encouraging rationale for remaining open to new advancements in educational technology. In addition, states must introduce new policies that focus on using online tools as a means to truly personalize learning.

Julia is the director of education research at the Clayton Christensen Institute. She leads a team that educates policymakers and community leaders on the power of disruptive innovation in the K-12 and higher education spheres.