Law in the Internet Society

Closing Achievement Gaps with the Free Flow of Information: Challenges Posed by America's K-12 Public Education System


Since the influential 1983 report, A Nation at Risk, commissioned by the Reagan administration, political and social focus on the disparity of educational outcomes among various population strata -- termed the "achievement gap" -- has sharpened. From one perspective, a critical prerequisite of creating an environment in which every human brain is able to learn is extinguishing intellectual property rights afforded to makers of software and authors in general. The sections outlined below attempt to explain how various complexities within the American public education system might inhibit these free-access privileges from closing the achievement gap. This is not to say that institutional obstacles are reasons for rejecting a hypothetical world in which information flows freely; rather, it is just, plain, helpful to anticipate challenges that might arise, even if those challenges prove to be overstated or off the eventual mark.

Free Textbooks & Curriculum Plans

The presentation of educational material to students in American schools is largely guided by two things: textbooks and curriculum plans. More so than in some other countries, "textbooks are ubiquitous and widely used in classrooms" and are the primary educational crutch of teachers. See How Do Teachers Use Textbooks? Given this entrenched reality, the educational success of a school as a whole (given a normal distribution of teacher quality) largely depends on the quality of available textbooks. When such is the case, it is exceedingly important to be confident that the absence of monetary incentive to create textbooks, due to lack of property protection, will not reduce the quality of available textbooks. Assuming that "Moglen's Metaphorical Corollary to Faraday's Law" is correct in that creating things for others is an emergent property of human minds, the question, then, is whether the difference between writing textbooks and programming educational software is a significant one in terms of their creative essences.

  • Wouldn't it be germane to inquire: (1) whether textbooks are the sort of material suitable for large-scale collaboration; and (2) who has been gaining the economic rents associated with lowering the number of textbooks available by raising their price while (hypothetically) increasing their "quality"?

On the assumption that quality of textbooks would not be negatively affected, the benefits of a free textbook market are fairly obvious: associated costs would no longer be crippling to schools in low-income neighborhoods, and, at least theoretically, a richer variety of materials would de-handcuff teachers. At the same time, a free database of more creative curriculum plans, as textbook supplements, would allow teachers to experiment with methodologies at no cost.

Challenges arise, however, not because of theoretical flaws but because of legal and administrative constraints. Particularly since the passage of NCLB, education in the United States has become a large-scale enterprise in which the achievement gap is monitored through implementation of uniform standards, evidence-based practices, and strict quality controls. With such a pervasive force necessitating the near universal standardization of educational practice, serious feasibility concerns arise in terms of organizing, evaluating, and distributing a potentially over-flowing free supply of textbooks and curriculum plans. In a regrettable sense, the smaller the political stranglehold over textbook and curriculum markets, the easier it is to evaluate the educational inputs employed to close the achievement gap. Unfortunately, such a large-scale demands a simple formula despite an exceedingly complex problem.

  • To describe American educational policy as nearing universal standardization is surprising: the US remains the only place in its world with local rather than national responsibility for setting curriculum. The steps presently being taken, while centralizing to some extent, would still appear entirely chaotic anywhere else. Nor are these centralizations actually preventing the deployment of free curriculum, which is being necessitated by economic collapse. States like Arizona that are urging their teachers to take materials off the web rather than expecting the State to be able to purchase textbooks are being forced into the revolution, but in they will come.

Free Educational Software

Given a legal regime in which all software is free, it is reasonable to anticipate a re-vitalized software programming environment in which a larger pool of programmers have the freedom to collaborate in producing a greater assortment of educational software. While it is difficult to imagine how this could have a negative effect on education as a whole, there might be challenges in terms of leveraging educational software in a way that could narrow the achievement gap. Beyond the fact that those on the losing side of the achievement gap are typically poor and often lack homes/home-computers, children with inherent neurocognitive deficits and/or unsupportive parents generally present the most complicated educational challenges. Without a sufficient supply of programmers who are cognizant of, and sufficiently understand, these challenges, it is plausible that a free software market would become inundated with programs that are remarkably adept at enhancing the education of natural born learners but less adept at untangling the roots of various achievement gaps. In other words, if an educational software market neglects students who are 1+ standard deviations below various cognitive means, educational achievement might be enhanced on average, but the achievement gap might be untouched or even widened. While it is certainly possible that a free software market might be more inclined to address the neglected (as an otherwise profit-driven market might focus on the larger pool of "normal" customers), this does not entirely solve the fundamental problem that the complex learning problems contributing to achievement gaps will be more difficult to program around.

  • Maybe the idea of "educational software" needed to be rethought a little bit. Most of the world that kids interact with isn't "educational worldstuff." And not everyone being educated is a primary-school child. Free software, collectively, is still the most important free technical reference library for learning available on Earth, for reasons I first gave more than half a decade ago.

Free Reading Material

Backed by the legal argument that all children have a right to read and learn, many contend that all reading material should be void of copyright and thus free to all. As a consequence, underfunded schools would be able to afford sorely needed reading materials, and poor children would have unobstructed access to similar materials at home. Unfortunately, though, better access does not create an automatic conveyor belt to educational consumption. More like a necessary baby-step, free access to reading materials is far from sufficient for the purposes of closing achievement gaps. Without a mutually reinforcing combination of parental leadership and intrinsic motivation, educationally starved children would have solid food but no teeth. Or they might rather starve than take the time/energy required to use a can-opener.

At its core, the achievement gap in the United States is marked by social, political, and economic realities that have created inequitable disparities between how various sub-groups of children value and consume particular types of information. Although curing deficient access to information is certainly a necessary goal that might also fully address some individual problems, it is overly optimistic to assume that this alone will significantly affect the achievement gap. Ultimately, the theoretical right to read and learn will not be fully vindicated until behavior patterns strongly associated with socioeconomic status -- reinforced through multiple generations -- are transformed so that a fully-stocked public library next door does not go unmentioned in a child's household.

Jonathan, I find your piece very interesting, and as I’d guess you intended, quite provocative. I haven't spent much time imagining potential downsides of making educational material free to all, and I really enjoyed reading your ideas. I have a few comments and disagreements that you may find worthwhile to address.

1.Within your first argument about textbooks, you seem to assume that American teachers’ dependence on textbooks is good, or even acceptable.Whether that is the case is, at the very least, debatable. I mention this point only so that you can incorporate it if you so choose; it does not really change your argument about free textbooks generally, but you may want to consider the other ways in which free books, magazines and newspapers (in addition to textbooks) could work within the U.S. education system. The debate over whether teaching from a textbook is a good idea exists even among those who must teach to standardized tests because there are multiple ways to teach similar content.

2. I think many people would argue that the creation of a textbook actually has the potential for a great deal of creativity and differentiation. The focus, organization, pictures choice, textboxes, incorporated activities, etc. all change the textbook a great deal and can be used in order to tailor a textbook to a particular group of students (for example, a textbook for elementary school children who grew up in the city may need to explain “fireplaces” or “driveways,” while a textbook for children in the country may need to explain the “subway”). Books intended to teach literacy are particularly appropriate for adapting to meet the needs of particular students, as children’s reading levels go up the more background knowledge they have about the topic on which they’re reading. See this article about content knowledge and reading. Or this more in depth article.

3. In your section on Free Educational Software, you seem to confuse the Achievement Gap with children with learning disabilities when you refer to children who are “1+ standard deviations below various cognitive means.” The idea of the achievement gap, at least as I understand it, is that children who started out with similar levels of ability to learn, are not achieving the same thing. Connected to this point, what is a “natural born learner”? A child who learns well from the style that is typically used in American classrooms? One beauty of software is that even putting many children on a computer while providing similar content increases the amount that they learn. See this article

4. I agree with you that free literature/books/software aren’t sufficient to close the achievement gap; however, access to free reading materials may be necessary. Putting a great piece of literature into a poor child’s hands will not teach him to read, but without any books at all, he is guaranteed not to learn. Access to reading material is more than a baby step. While parents can help increase literacy, so can great teachers. I would guess (though I can't prove) that a lot more good teachers would stay in teaching if they didn’t have to fight so hard for basic resources like books. Also, maybe your point about generations of reinforced behavior patterns suggests we should make reading material available to adults as well?

I hope these comments are helpful, and that you don't mind my disagreements too much!

-- HeatherStevenson - 24 Nov 2009


As Heather said, this is a very provocative piece indeed. However, given the 1000 word limit, I think it would be in your best interests to possibly narrow the focus of your paper a little bit. My main critique is the section concerning Free Software. As Heather noted, I believe the "achievement gap" occurs when equivalently capable students accelerate at different levels due to various external factors. In any case, this section does quite a bit of speculating about what will happen ONCE all educational software exists for free. What makes you think that there would be a lack of educational software for disabled students? If anything, wouldn't the amount of software for these types of students (deaf, learing disabled, etc) INCREASE with the existence of completely free software because there is no longer a profit incentive to cater to the group with the largest consumer base (your normal, non-disabled student)?

It seems that focusing on what the free software will look like once it exists involves a lot of speculation and might not be as interesting/relevant in comparison to some other routes you could go.

You've got a really interesting piece. Looking forward to your final version.

-- EdwardBontkowski - 24 Nov 2009

Great stuff - thanks! I will digest this more over the coming week, but here are a few quick responses to the enumerated comments above:

1) Personally, I don't think teacher dependence on textbooks and rigid lesson plans is good, but, whatever my ideas are for an ideal education system, that is beyond what I wanted to tackle here. Specifically, I was just hoping to point out systemic realities that aren't likely to change anytime soon and then envision what challenges might arise if all of these educational materials were suddenly free. There is a lot to criticize about NCLB, certainly, but to my knowledge every state attempts to play by its rules for funding purposes. When standardized tests, on which funding depends, are linked to very specific learning objectives, educators are extremely constrained to teach things by the book. That's the reality of it. Having specific, universal learning objectives makes it easier to collect data on a large-scale and then evaluate national educational progress. That's what goes on in this country: the fed has created an omni-present aura of accountability, and this kind of surveillance is supposed to be the spur educators need. If teachers were suddenly allowed to take advantage of a free textbook/curriculum market, it would become much more difficult to match so many new varieties of methodologies with measurable learning objectives.

2. Great point, which I imagine is a better depiction of the K-3 context than, say, the 9-12 context. There is certainly creative potential there, but textbook writing is notoriously arduous, and I would be surprised if many people write high school textbooks to express their artistic side. I could be wrong.

3. Of course, there are a variety of reasons -- cognitive, social, emotional, behavioral, etc., etc. -- why some students might be better primed to learn than others, and your point is well taken. I would point out, though, that there are actually many "achievement gaps" monitored by the fed through NCLB, and many of these involve socioeconomic and racial groups who score lower on both cognitive tests and educational achievement tests, so it's not all about ability-achievement gaps. [The fact that better educational achievement in school is correlated with increased cognitive "ability" scores is a whole separate mega-issue of test validity, so I won't go there]. It is also true that NCLB looks at how special education students are fairing relative to other sub-groups, so better educating those with cognitive "disabilities" is certainly within the scope of closing achievement gaps. I agree with you about the beauty and potential of educational software, though.

4. I think we agree on just about everything here. The "baby-step" concept certainly isn't a science, so I won't debate too much about exactly how big it would be. Above all, again, I'm just hoping to point out shortcomings and potential challenges based on the current legal/political structure of education in the U.S. today.

-- JonathanBoyer - 24 Nov 2009


I noticed when reading over your paper that somehow the formatting order got weird and Heather's comment was below the comment box, unsigned, and yet seemed to be first in time (since Edward references it). I fixed the formatting, I hope it was helpful and not intrusive.

Heather and Edward covered my comments well. I think the core idea is very good, but I tend to agree with Edward that it does speculate a bit and builds conclusions on those predictions that I wonder if are how things would come to pass. In particular, I tend to think a free software textbook movement would actually be pretty helpful for the disabled of any variety. Free computer software has certainly provided services for the disabled. I found those in just a dozen searches, I'm sure there are much better examples out there. I would also suggest honing the punch of the argument that standardization requirements will undercut a free textbook movement; if textbook content is as straight-forward as you argue, there's no reason I know of that free textbooks couldn't adequately mimic what the standards measure.

You are tackling a difficult argument, and doing it in an innovative way. I think if you hone and sharpen it more, it will be stronger. It's a good read already, though. Nice work.

-- BrianS - 24 Nov 2009


Thanks for taking time to respond to all of my comments in such depth (and thanks to Brian for fixing the formatting after I commented - I likely did something before that messed it up). I think you're right that we generally agree on most, if not all, of the big issues that you address in your paper. I'll share just one more thought on your first arguments about textbooks and NCLB. Do you think it is possible that if there were suddenly good textbooks (whatever that means) freely available to all teachers, then there would be a possibility of less teaching to the test? In other words, if teachers could provide better educations to students through the use of better textbooks, might more public schools be able to get to the point at which the best public schools have already arrived - where nearly every child easily meets NCLB standards, and the testing is seen merely as a nuisance taking away from educational time? I don't know what I think on that issue, and I don't think heavy teacher reliance on textbooks is good. Still, I the argument can be made that rather than NCLB requirements limiting the usefulness of free textbooks, maybe free textbooks could help schools move beyond NCLB as the point of teaching. Anyway, that's just a thought. There are likely too many "what ifs" in the alternate argument I've suggested.

I look forward to reading the final version; you've written a really interesting paper!

-- HeatherStevenson - 25 Nov 2009


In your last paragraph you cite "serious feasibility concerns" if there were more free textbooks and lesson plans, and then conclude that the NCLB act makes it difficult for administrators to choose from competing free choices. I think that this conclusion is founded on an incorrect assumption: that "free" implies that is made in spare time by people who are uncoordinated.

I think that although allowing teachers to contribute to, remix, and share textbooks is important, a free textbook does not need to be written by people who do not receive compensation, and who are uncoordinated. Somebody currently gets paid to write text-books. I don't think its too much of a stretch from the lessons free software to imagine an educational non-profit (or governmental agency) paying some experts to write a series of textbooks under a free license geared towards the NCLB tests. Once the book exists, updating it would not be too hard, it could be modified to fit local needs and it could be printed on demand at low cost. If that non-profit or agency developed a trademark that signaled that they approved of the particular distribution, but required that it be removed from distributions that they did not approve of, then I think that your concerns of school boards and administrators separating the wheat from the chaff disappear. Indeed, this is how many free software projects, parts of which are as arduous and tedious as textbook writing (in my experience, implementing a system to store files in a computer is quite boring), currently operate.

I think that acknowledging and addressing that coordination is feasible in free educational tools, and then looking at what this means in the current education system would do much to bolster this paper.

-- JustinColannino - 25 Nov 2009

Jonathan -- thank you for this well-thought-out essay.

I don't know nearly as much about this as you or Heather do, but there is one thing that occurs to me. Thinking back to high school, the teachers usually couldn't give the low-achievers the help that they would have needed to keep up. The teachers didn't have enough time (or, sadly, inclination). Instead, they taught to the majority of the class.

I'm sure there's gobs of educational theory on how to handle this issue. But as we move to using more finely-crafted educational software, that's actually good (with a goal of something like A Young Lady's Illustrated Primer), the software seems like it should be able to babysit the kids that a real teacher couldn't. Some kids that are being left behind now could probably benefit from the infinite patience of a well-written educational program. They'd get more from it than the rich white kids, and hence the gap could be narrowed.

Free, open collaboration could fit in here by designing better educational software, and by making it more accessible to the kids who need it most.

-- GavinSnyder - 03 Dec 2009


Thanks again. Through my revisions, I am currently attempting to address some of the posted comments. I am compelled to reiterate, though, that the purpose of this essay was not to present a thesis about everything that might be feasible; the goals of the essay were to raise concerns and ask questions that people might otherwise neglect to consider. Judging by the comments received and the thoughts provoked, I am somewhat pleased with the extent to which those goals were achieved. I have no doubt that given a room full of 1,000 readers, there would be an endless variety of responses or "solutions" to these questions and concerns. While the coordination you suggest is not beyond imagination and might be feasible given a monumental shift in education administration, it remains an obstacle and a concern nonetheless. Perhaps someone can address or solve it in what would be a great topic for an education law/administration journal article. But I don't see myself doing that here.

-- JonathanBoyer - 10 Dec 2009

  • What you haven't adequately responded to, Jonathan, is the criticism that you've disproved an irrelevant proposition. No one has stated that free access to information is a sufficient condition for amelioration of the ails of the US educational system. Whether it is a necessary condition is a proposition to be debated, although I don't think you have an easy side in that debate, if you care to take it up. But this essay is simply a victory over a strawman, and however thoughtfully that is done, it looks miles better than it is.

  • Moreover, the larger social significance, beyond our borders, is not to be found in the issues raised by "educational reform" in the US. Two different problems can be distinguished: (1) securing an education for motivated learners presently trapped in enforced ignorance; and (2) helping children to fall in love with learning, thus creating motivated learners out of children who presently do not achieve their potential. Globally, (1) is by far the greatest problem: ignorance, like hunger, is a fundamental human injustice we have a responsibility to prevent. We can provide every motivated learner on earth an opportunity to learn if we can free the material needed for learning. The problem presented by (2) is not made harder by free access to information. To the extent it is made easier to solve, so much the better. To the extent that children cannot be taught to love learning, the best advice one can give is to treat the children better. This society's bad treatment of its poor children, who are one fifth of its children, is evident.


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