Curriculum Development: Not Work for Hire

I chopped off part of my last piece to expand more on teacher intellectual property, a topic near and dear¹.

The conventional wisdom (which Stephen Sawchuk nicely outlines in the last part of this piece) holds that teachers are district employees, so any curriculum, lessons, or tests are considered work for hire . The teacher is paid specifically to develop the curriculum by the district, so the district owns the copyright and any subsequent profits from all of their teachers’ work—tests, worksheets, lesson plans, sequencing, whatever. .

In theory, my district could force me to pull down my posted curriculum from this blog—since I don’t own the copyright, I don’t have the right to give it away for free. Sites like Teachers Paying Teachers are illegal in this view, since teachers are making profits off their district’s property.

Originally, a teacher’s work was exempted from the work to hire rule, but in 1978 Congress didn’t include the exemption. Teachers’ unions have been trying to get the exemption reinstated.

Not for the first time, I’d argue the unions are going about this in exactly the wrong way. The exemption is unnecessary. Teachers aren’t hired to write curriculum. We are hired to teach. I’ve now outlined three well-established, time-honored practices that support this interpretation.

1. Teacher contracts spell out their time commitments, which are the time in the classroom, staff and department meetings, supervisories, and mandatory professional development. No contracts hold teachers responsible for developing their own curriculum. A teacher is welcome to teach day by day from a provided textbook, or eschew a textbook altogether. They are not evaluated on the strength of their curriculum development in any way, nor can they be required to improve performance on this point. (More about this here.)
2. While districts have begun to claim copyright, districts have never paid each other for teacher-developed curriculum. I have been in three districts. Like all teachers, I have a directory of my own curriculum, and I’ve carried it from school to school without any district ever informing me I couldn’t–much less demanding payment from my new district for use of their copyrighted curriculum.

   This practice, which has gone on for generations, clearly demonstrates that districts don’t consider themselves owners of the teacher curriculum. So if they want to ban a teacher from selling it, they need to start seizing the curriculum from teachers who developed it. Good luck with that.

3. As I recently wrote, teachers given the extra duty of a class are paid purely based on the class instruction time, not the additional time (or not) needed to develop curriculum for that class. I’ve written before that teacher preps, or number of subjects actually taught, impact teacher workload. Teaching three different classes would be considerably more work, for most teachers, than teaching the same class four (or six) times. Teaching large classes also impacts workload. The teacher with multiple preps but a free period could have a student load of 150, while the teacher who works the prep could have 120 students (6 classes of 20). Unlikely, but theoretically possible. Doesn’t matter. More preps, more students, more outside work: irrelevant. What earns teachers a significant premium is the number of scheduled classes they are responsible for.

No one ever listens to me, but I’d advise unions to look for a good test case to challenge the work-for-hire idea, rather than argue for a change to copyright law, on the grounds that existing practice has acknowledged teacher intellectual property for decades. Certainly, the district should never be required to pay for the teacher’s work product in later years, should receive automatic use of anything developed during the teacher’s term of employment. But any rights in the curriculum we develop is our own.

I’ve often seen reformers–and other teachers—bemoan the notion of teachers who go home right after school everyday, clearly implying that the extra work developing lesson plans and curriculum is an element of our salary. But this simply isn’t true.

Besides, we don’t have any real idea of what makes a good teacher. Some of us work hours after school, some leave right after. No teachers who spend hours crafting curriculum, be it handouts, lesson plans, or tests, have any guarantee that they are getting better results. What they do know is that they are creating, creating without pay, and what they create should be theirs.

Here, again, acting works well as an analogy. Two actors are cast in a play, given supporting roles with an equivalent number of lines. They are both paid “scale” (whatever that is). The first actor spends six hours a day outside of rehearsal, practicing and perfecting the role, trying out different readings. The second actor barely makes it to rehearsal because he’s busy auditioning for a movie, doesn’t put any time into preparation.

They both would be paid scale for rehearsal and performance hours. The first actor wouldn’t be paid for the additional hours. The second actor might, in an unfair world, receive more acclaim and audience approval despite his lackluster approach.

But neither of them would be precluded from re-using aspects of their performance in later roles. The studied wince. The knowing sneer. The warm beaming smile, the turn and rapid delivery. Their performances were the result of work-for-hire. The script, like the textbook, belongs to someone else. The manner and method they use to deliver the performance are entirely theirs.

I ran into our union rep, an excellent English teacher, in the copy room. We began by chatting about class size (I’m teaching three massive A2 classes, which has given me some sympathy for the limits) and for various reasons (no doubt because this was on my mind), we got around to curriculum development.

“I wonder why the union doesn’t realize that we aren’t paid to develop curriculum? They don’t really need to change the copyright act to give teachers ownership of their work.”

“Or to give everyone ownership,” she said instantly. “There’s good reason to believe that no one’s work is truly original, that everything is derivative.”

Oh, lord. A CopyLeft fan. If our conversation had been Twitter based, I would have been properly contemptuous, but she’s a colleague and really very smart (she knew about the 1978 Copyright Act!) and besides, on this issue, I am actually seeking to persuade so I bite back my first response.

“Yeah, I ‘ve never agreed on that. But can we agree, at least, that whether teachers own their work or everyone owns their work, that the district doesn’t own our work?”

“Oh, absolutely. In order to give it away, we need the rights to it.”

So to the many loopy committed Creative Commons, Open Source, everything is derivative folks, can I just ask that we put aside our differences long enough to get the union to argue our case?

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¹I’ve been writing about teacher IP and curriculum development for four years, as long as this blog’s been around–that’s in addition to many, many posts on my actual curriculum development. Here’s the primary pieces:

Teaching and Intellectual Property
Grant Wiggins
Developing Curriculum
Handling Teacher Preps
Math isn’t Aspirin. Neither is Teaching.

Teaching Oddness #2: Teach More, Get Paid More

Today, the topic is a teaching oddness I have taken regular advantage of. Like many teaching oddnesses, it exists primarily at the high school level.

High schools determine staffing requirements based on the number of sections the district gives them. The administrators divide the sections by the contractual class load—very often five, for six-period days. In our school, it’s three. (Yes, we teach three 90 minute classes and one 90 minute prep, and then we start all over again mid-year.)

So suppose our school has 192 sections and divides it by 3, meaning they need 64 full-time staffers, but they only have 62 teachers, so six sections are unassigned. Three of the extra sections are math, two English, one history.

Rather than hire extra teachers, the administrators just hand out the extra sections and we get paid for the extra work Some teachers don’t get paid very much more (this article actually shocked me). Others get paid on a schedule like this, stolen at random from an Irving, TX district:

But every school I’ve worked at, the extra teaching duty pay schedule denominator is reduced by one. Teaching an extra class in a 6-period schedule results in a 1/5 pay boost. Teaching an extra class in a 7-period schedule results in a 1/6 pay boost. Teaching an extra class in a 4-block schedule results in a 1/3 pay boost. That’s what my principal told me, anyway, the first time I accepted the duty. I’ve never actually reviewed my paycheck on that point.

So I’ve been getting 33% over my usual pay for the past year, and for the upcoming semester. I’m in a high-paying district, and I have seven years experience, and a metric ton of education, putting me all the way over to the right column on step and column scale—and then there’s the Master’s bump. In addition, from what I understand, this does wonders for pension calculations. I’m doing my best to save most of it.

I’ve mentioned before that teachers can’t do overtime. In this we are like typical “professionals”, as in “non-hourly workers”. Our decisions on how and what to teach were our own, as were the hours we put into these tasks. We can do as much or as little as we like to deliver the class. As I wrote in Teaching and Intellectual Property (a topic that shall return), we get paid to deliver the class, not to create curriculum.

However, the delivery itself is beautifully quantifiable. We teach n classes a day for d dollars a day. So teachers have an excellent case: If we teach n+1 classes a day, the additional class will be paid d⁄n dollars. Left at issue is the actual dollar value of d , and the method of counting n.

In my district, n = classes in a standard schedule, while d = yearly salary. This is sublimely generous, and reflective of the fact that teachers in my area are hard to find and pretty expensive.

In other districts, n = periods in a standard day, while d = yearly salary. Still very generous, the only difference being that the “prep” period is counted as work time, I think. So instead of a 20% boost on a 6 period day, you get a 16+% boost.

In the horrifying district linked in at first, I’m assuming teachers are easily found and cheap. The fixed price suggests the district uses a different d, perhaps calculating the average cost of class delivery for all teachers. So these teachers get paid the same amount for the extra work, or perhaps the contractual per-diem hourly rate. Ick. (sez Ed, snootily.)

But in all cases, the teacher gets paid directly for the additional work. Cue the cries of “This isn’t how professionals operate.”

So I was a professional out in the world once, even working for corporations. And when professionals are handed additional work, it used to come with several implicit assurances:

1. This will result in more money and an improved title somewhere down the line.
2. This will result in an improved resume that leads to more money and an improved title at another company if option 1 doesn’t come true.
3. This won’t result in anything other than more work. Be grateful for the job.
   

Back in my day, 1 and 2 held court; I’ve heard things have been different in my world since the dot com bubble crashed, in 2002 (I was still partially in, and rates definitely took a huge hit). Anecdotally, I don’t see many people, even in tech, comfortably in the driver’s seat these days. They’re happy to have a good job. That’s for college educated tech workers; in today’s world Amazon makes temp factory workers sign non-compete agreements for 6 months simply because they can. (it’s the immigration, stupid). That is, these days quite a bit of extra work is handed out without additional payment but merely the assurance that doing the work will save one’s job, for the time being.

Typically, Republicans point to the perks of government employment–such as the awful practice of getting paid for doing more work—as unions extracting unearned value for their workers.

But look at the list again, and realize that none of these in-lieu-of-pay offerings hold for teachers. We don’t want a promotion. We can pretty much teach whatever classes we have credentials for, so the resume add-ons don’t help much, and we can’t be fired for refusing to work extra hours for free because our employer is the government, baby, and it can’t deprive us of our property right in a job without a good cause, and working for free isn’t that cause. (Private employers can, apparently.)

Remember, too, that schools have to provide a properly credentialed teacher in every class and it becomes clear that in tight job markets, teachers have the upper hand when negotiating for “extra duty”. The district has a need, and teachers are in an outstanding position to make them pay full price for that need. In slack job markets, of course, not so much.

So when we are handed a certain form of more work, we are immediately paid more money in proportion to the demands made on our time. Cool beans. And definitely odd, I think, in the private sector.

Two observations arise out of this oddness.

First, reformers like Bill Gates or Fordham Foundation like to push the idea of giving teachers bigger classes–like, say, 4 or 5 more students per class, for more money.

These conversations never seemed reality-based, since they always begin with the premise that teachers have 20-22 students per class. I have three classes of 35 right now, and one class I literally call “tiny” at 20. But in any event, it’s become very popular to advocate changing base pay to a form of “merit” pay by giving teachers bigger classes.

Is it clear, once again, that reformers demonstrate bizarre ignorance of the actual logistics of staffing a school?

They’re calling for increased class size—in an age when parents unequivocally support smaller class sizes, data be damned—and a contractual change giving some teachers more money for taking more kids. Unions will oppose them tooth and nail for anything approaching merit pay, they’ll never get it anyway, and all to get “good” high school and middle school teachers about 20 more students a day, in a standard 6-period day. Elementary school teachers, just the 4 or 5.

Meanwhile, right now, on the books in most districts, exists a means of giving each “excellent” middle or high school teacher 25 to 35 more students, as well as a lot more money, without upsetting parents and increasing class sizes. No negotiations needed, no formalization of procedure–it’s there already. I am reasonably certain that principals already use “extra duty” as a way of rewarding high quality teachers interested in the money.

So are they ignorant? Probably. Would reformers start promoting “extra duty for excellence” if they had some small inkling of how staffing actually works? Probably not, since their goal, really, isn’t rewarding teachers but breaking contracts. But in any event, the next time a reformer pushes the idea, have this essay at the ready.

(Note: In the comments, Brett Gillan points out another problem with paying teacher by classload so obvious I could kick myself for not thinking of it. Namely, student load is not constant. I often end up with much smaller classes; students transfer to alternative school, go to a different district school, move, and so on. The higher the poverty level of the school, the more the variance.)

Second observation—well, on second thought (thanks to Roger Sweeney), I’m going to make this second thought a second post.

Teaching Oddness #1: Teacher’s Aides, HS Version

Do outsiders know what TAs are? I went looking for research on this point, and could find none. These descriptions aren’t accurate, and most of the rest refer to employed teacher aides.

Teacher’s Aide is a student elective “class” in which the student provides the teacher with free labor as needed.

I get a bit stalled here, because the same practice can be used for neutral or ill. Arguably, there’s no “good”.

Neutral: Why would any student sign up to be a gofer? It’s not for the resume value, I assure you. But high school students are required to take a full slate of classes, and electives are in limited supply. So at a certain point, a mid-tier student with a good GPA but every intention of going to a junior college is left with no appealing electives. Every semester, students with schedule holes have to find somebody to work for, or they’ll get stuck in an actual class with responsibilities and grades, a class they have no interest in taking.

Some of them are assigned to run errands for the front office, taking notes out to the teacher rooms and back for counsellor call-outs, direct mail delivery to students, getting a teacher’s signature on a document, whatever. But schools only need three or four office TAs.

The rest of the students beg teachers to take them on as either doorstops or free labor, in exchange for an A. Because TA jobs get graded, and any grade less than an A raises eyebrows. (Colleges exclude TA from GPA calculation.)

Admins spend some serious cycles on TA assignment. First, the notes come out telling us that no teacher can have two TAs per class. (Yeah, what? OK.) Then out comes the notes begging teachers to take some TAs that still don’t have assignments. Then, occasionally, a TA shows up at the door with an administrator and a question, “Can you use a TA?” and while the answer would otherwise be “No”, the administrator keeps asking until the teacher says “Yes”. Then hours are spent entering these into the schedule for attendance and assignment and transcripts.

I’ve concluded tentatively that the student TA system is both a significant source of free labor to teachers and schools, and a non-trivial burden for teachers and administrators when willing users of that free labor can’t be found.

Many teachers, those teachers who come in each day with their task list set a week, or a month, a year, or three years ago—these people with a plan, they love TAs. Good, yes, I have a million little tasks to be done. Grade this quiz I created three five years ago, then enter the test scores. Create my bulletin board decorations, using this design. These are the ones who have to be told they can’t have more than two TAs per class.

I’m the teacher who was forced, year one, to take a TA. The AVP showed up at my door, just as described above. I was 4 days into my first job, and already knew I had no use for a TA, especially when they told me I couldn’t use him for the single most essential task eligible for delegation: copying.

That’s the insane part: WE CAN’T USE THEM TO MAKE COPIES. Moreover, no one seems to think that, so long as we have all this student labor going begging, a COPY CENTER MIGHT BE A GOOD IDEA. Nothing causes teachers more unforced stress than needing the copy machine when it’s broken or unavailable, thanks to a 20-teacher queue in the morning or lunch. A colleague and friend once took up lunch running 50 sets of 30 page documents. When a week later she announced her transfer, I told her she wouldn’t be missed. I wasn’t entirely joking.

What was my point? Oh, yes. So I had a TA year one who sat at my desk and surfed the web. He wasn’t a bad kid, although I can’t remember his name. His only responsibility was to sit in a nearby room during tests with my top kids, as my room wasn’t big enough to hold thirty kids and cheating was rampant. Pulling out the top kids ended that little game.

I don’t remember TAs being available at my next school, but I just texted a former colleague and will update this space.

My current school happily doesn’t pressure teachers to take TA, but who needs administrative pressure when students apply guilt? My first year at this school, one girl begged me to let her TA. She showed up late and texted each day. I vowed never to be suckered again. Except I did the next year, when a stoner begged me to let him TA my pre-calc class. He was worse than useless, but a better conversationalist than the girl, so there’s that.

But then, it all changed. Last year, Rufus, an exchange student and a top performer in my trig class, convinced me to let him TA, and then another favorite football player, Ronnie, begged me for a chance. I figured I may as well spend time with students whose company I actually did enjoy.

Rufus worked with my students, paying a little too much attention to cute girls, but with that exception, he was very good. Ronnie wasn’t as good in math and definitely liked distracting cute girls, but one day he volunteered to clean up my office space. Kid worked like a fiend, and no one recognized my room.

As I mentioned, Year 6 was busy and here, I have to break off a bit to explain something.

Full-metal, 4×4 block has killed my love of grading. We cover a year’s worth of instruction by the end of January. My assessments are difficult, and I’d rather give them less often, but I pretty much have to give a test or quiz every five or seven days to have grades for progress reports. Since I’m designing a new test system, I was spending much more time building and grading assessments already.

And that was before year 6, when I had two new subjects (trig and history) and three preps (subjects taught), four classes (no free prep period) and 110 students in the second semester.

My returned test lag time was now over a week, which really nagged at me. My work life was becoming something like create a test, created a key, grade a test, enter the grades, turn the test back, lather rinse repeat. Amd that’s without all the curriculum for the new classes. Mind you, this is a typical teacher complaint, but this is all work I typically enjoy. I was just running out of cycles.

Rufus was taking my history class as well as operating as my TA, and knew how slammed I was. He offered to grade. By this time, he’d proven himself reasonably trustworthy, so I decided to risk it. I’d create the key and the point system, have him grade a few samples, and then let him go.

Wow. Huge difference. I still reviewed the grading, adding or knocking off points, but time spent was cut from six to one hour. Rufus bragged to Ronnie (does this sound like Highlights?), who demanded he be trusted with grading as well.

Ronnie and Rufus provided the first really positive TA experience I ever had. I took them out for Starbucks at year-end, and am still in touch with both.

Last semester, Jacob, also from a previous trig class, asked if he could TA and I asked him if he minded grading. I worked Jake so hard I gave him cookies and Starbucks cards for Christmas, and told him I’d violate regulations to give him some service hours if he needed them. Jacob saved me dozens of hours. I couldn’t get over how I could use student labor to make my life easier.

This semester I have three, count ’em THREE, TAs: all previously successful students, all aware when they signed on that they’d be expected to grade or, occasionally, help students. I put one in each algebra 2 class.

I’m less conflicted about having three TAs cover the work than I was giving it all to Jake. While he didn’t seem to mind, I was bothered by the idea that one person was contributing so significantly to my workload reduction. Somehow three kids making life easier for me doesn’t seem as bad. When it was just Jake (heh) it took about 4 days to grade 50 tests, even with my working as well.

To illustrate how much they’ve decreased my workload, we’ve just done the cutover at mid-term, which is always tough. We have to both finish final grades while starting brand new classes with brand new kids. I’m teaching all four classes again, no prep, and 109 algebra 2 students, with another 20 in my geometry class.

I gave the first quiz on Tuesday. Each of the three TAs graded a class set, aand I had the grades in the book on Friday. Unreal. On my own, I probably wouldn’t have had that first quiz done for another week. Instead, I was able to review the tests, see who scored well on my pretest but tanked the function quiz, and vice versa. I’ve got time to redo seating, catch low scores early, call kids in to fix misconceptions. It’s great. My TAs also chide me on the state of my desk, and pressure me to collect all the papers and dump most of them, after review. I’m always worried I’ll toss something important.

I also enjoy talking to my TAs, who I chose because I liked and knew that I might be able to help in some way. I have at least once good talk with them a week, and advise them on college choices, course choices for the upcoming year, whatever.

But I can’t get over the fact that I’ve been freed from so much work without it costing me anything. I’m not alone, I know; many teachers brag about how much they turn over to TAs. I also remind myself that many teachers use scantrons and multiple choice tests. I spend substantial hours developing good tests, and I still review and evaluate all the tests before they are returned. I’m new to this; give me a few years and I’ll probably be one of those teachers griping I can only have two TAs a class.

So there’s the neutral use.

But the TA position can often be used to cover up scheduling shortfalls. As mentioned, schools are legally required to give students a full schedule of classes. In many struggling schools, the administration can’t keep enough teachers to offer all the classes needed, and so they use the TA slot as a stopgap. I very much doubt schools use this as a source of cheap labor for teachers, but many kids just can’t get the credits they need to graduate. I’ve mentioned before that the district controls the catalog; the catalog controls what can be assigned, so if a district offers “teacher’s aide” or “independent study” then they can use it to cover up a multitude of sins.

As I said, I can’t really make a “good” argument for TAing–at its best, it’s a way for kids to get out of taking a class and make some extra money by selling advance copies of tests. At its worst, schools use them to keep their doors open, rather than flatly refusing to fake it. We need more high schools refusing to take students, putting pressure on districts and states to address the problem.

Why is there so little data readily available about school’s “hidden work force”? Many tasks could undoubtedly be automated, particularly the office TAs. But then, strawberry farmers, schools will only automate when they lose cheap, free labor.