Do public institutions that prepare public-school teachers have the right to keep their education-course syllabi private?
That’s essentially the question raised by a lawsuit filed Jan. 26 in Wisconsin by the Washington-based National Council on Teacher Quality, which seeks to compel the University of Wisconsin and several of its campuses to provide such information under the state’s open-records law.
The move comes as part of the NCTQ’s project to rate every school of education on up to 18 standards. (“Grading of Teacher Colleges to Be Revamped,” Feb. 9, 2011.) Many institutions are not voluntarily participating in the controversial review, and are turning over materials only in response to open-records requests filed by the council, a private nonprofit research and advocacy organization.
The University of Wisconsin provided some materials in response to the NCTQ’s request, but stopped short of releasing course syllabi.
“The Wisconsin board of regents and the [University of Wisconsin-Madison] have adopted policies providing that course materials and syllabi are the intellectual property of the faculty and instructors who create them. ... Such intellectual property is subject to the copyright of the creator,” a university public-records custodian asserted in a letter to the NCTQ.
All Wisconsin campuses with teacher education programs have sent similar letters or refused to turn over syllabi, university spokesman David Giroux said. So far, the university has not responded to the lawsuit.
“We’re looking at this very carefully,” Mr. Giroux said. “It’s very complicated.”
Similar Stance Elsewhere
Since announcing the review in January 2011, many teachers’ colleges and their associations have criticized the NCTQ project, arguing that its methodology is flawed and that the review is ideologically driven. (“Education Schools Refuse to Take Part in U.S. News-NCTQ Review,” April 27, 2011.) The NCTQ has denied those claims.
The Wisconsin lawsuit was filed in part because so many campuses were involved, said Arthur McKee, the managing director of teacher-preparation studies for the NCTQ.
“It seemed very clear it was being coordinated, so we decided the best way to approach it was to take action against the whole system,” he said.
Other public universities have made similar assertions, the council says. They include: Arkansas State University; Kansas State University; three Minnesota State University campuses; two Montana State University campuses; the University of Montana; three University of Nebraska campuses; Southwest Minnesota State University; Southeast Missouri State University; and William Paterson University of New Jersey.
Education Week’s calls requesting comment from two of those institutions, Montana State and the University of Nebraska, were not immediately returned.
Further lawsuits are possible, but the council would prefer to work out agreements with the institutions, Mr. McKee said. Of states’ flagship public institutions, 37 of 51 are cooperating with the review, he added.
“We really do not want to go to court if we don’t have to. It is absolutely, positively, not the first thing we’re going to do,” he said.
Legal Questions
States’ open-records laws differ in the scope of what documents must be produced on request. Generally, they exclude only a narrow range, such as trade secrets or proprietary information. It is not clear where syllabi fall in that category. Other education documents vary by state: Standardized tests, for instance, are considered a trade secret in Ohio, but can be released in some instances in Kentucky.
Copyright documents, in the meantime, typically fall under fair-use exceptions, which allow for the use of such documents for research and noncommercial purposes, said Frank D. LoMonte, an attorney and the executive director of the Arlington, Va.-based Student Press Law Center, which seeks to protect students’ First Amendment rights.
“Copyright is not a secrecy law, it’s supposed to protect against exploitation of your work, not the release of your work,” Mr. LoMonte said. “It’s particularly true once you’ve placed it into distribution.”
But Ada Meloy, the general counsel at the Washington-based American Council on Education, a Washington-based higher education advocacy group, offered a different interpretation. “If they can’t even get the syllabi in the first place,” she said, “I’m not sure claiming fair use would give you access to it.”
Some university counsel appear to share that interpretation, according to a memorandum sent by a critic of the NCTQ review.
“Several members have raised the important issue of whether syllabi are considered the proprietary property of faculty and, therefore, not allowed to be shared or sold by students back to NCTQ for commercial purposes,” Sharon P. Robinson, the president of the Washington-based American Association of Colleges for Teacher Education, wrote in a letter to members last October. “In some circumstances, members have vetted this topic with their institutions’ legal counsel and have received confirmation that syllabi are considered proprietary.”
