Monday, September 26, 2011
Farrell Miller, St. John's University School of Law Class of 2012, is the author of the fifth article in a ten part series from the staffers of the Journal of Civil Rights and Economic Development under the direction of Professor Leonard Baynes. He writes on why Facebook users are not entitled to constitutional privacy protections...
Among the users to benefit from Facebook privacy was 33-year-old serial sex offender Peter Chapman. In 2009, he "friended" 17-year-old Ashleigh Hall on Facebook using a false account that featured a profile picture of a handsome shirtless teen. Chapman messaged Hall and convinced her to meet up. When Chapman arrived to pick her up, he pretended that he was the father of the boy she had corresponded with. Once inside the car, Chapman strangled, raped and murdered Hall. Afterwards, he dumped her naked body in a nearby farmer's field.
While it is impossible to know with certainty, had officials been able to access Facebook information without jumping through legal hoops, Ashleigh Hall might still be alive. Facebook has facilitated albeit unwittingly sexual harassment, pedophilia, cyber-bullying and murder, among many other crimes, in cases like Hall's and others. Unquestionably, law enforcement officials have a legitimate interest in greater access to Facebook user information in order to save potential victims, stop ongoing criminal activity and to solve and prosecute past crimes. However, the leading interpretation of Fourth Amendment privacy law unduly restrains law enforcement officials and leaves the public unprotected from online predators. Currently, if officials need to obtain restricted Facebook information, they must first obtain permission in the form of a warrant.
The Supreme Court has held that government action amounts to a Fourth Amendment search if the subject of the alleged search had an objectively reasonable expectation of privacy. Because Facebook users do not have a reasonable expectation of privacy in information published to the site due to the site's overwhelmingly public and social nature, Fourth Amendment privacy rights should not be implicated when officials utilize Facebook information to thwart a crime.
In analyzing whether there is a reasonable expectation of privacy, the Court has focused on three main factors: (1) the nature of the place allegedly searched; (2) steps taken to keep the place private; and (3) the amount of intrusion experienced.
Facebook should not be considered a "private place." In Oregon, police did a warrantless thermal scan of a defendant's home to determine if there was an illegal marijuana-growing operation inside. The Supreme Court held in Kyllo v. US that the warrantless scan was a Fourth Amendment search requiring a warrant because it enabled officers to detect what was within the home.
On the other hand, the Supreme Court has afforded much less protection to places not within the home. In the case arising out of Kentucky, Oliver v. US, the government trespassed on a resident's field to view a marijuana crop that was otherwise out of sight. The Court held that this action was not a search in part because the open field was so dissimilar to the home. Unlike a home, an open field is neither an "enclave" nor a "setting for those intimate activities that the [Fourth] Amendment is intended to shelter."
Facebook is less like the Oregon resident's home and more like the open field in Kentucky. First, Facebook is unlike a home due to its size alone the site has half a billion members. Second, on Facebook privacy norms that one would employ in the home are suspended or ignored. Indeed, the indiscriminant friending phenomenon, which is prevalent on Facebook, has no analogue in the home where entrance is usually strictly proscribed to unknown individuals. Finally, Facebook is a place for sharing; there is an inherent assumption that users intend to publicize their information. Moreover, while users include each other by sharing media, the home's main purpose is to exclude (e.g., inclement weather, intruders, and animals).
Furthermore, steps taken to keep a place private are not always enough to garner constitutional protection. In another California case, US v. Ciraolo, an industrious marijuana gardener built two opaque fences to shield his plants from the intruding eye. Police officers requisitioned an airplane and flew over the property in order to take pictures of the grow operation. According to the Supreme Court, because the marijuana could be viewed "publicly" from navigable airspace the landowner had no expectation of privacy, and accordingly no Fourth Amendment search had occurred. Like the California landowner, Facebook users may erect barriers to viewing, but they are still showing their information to some portion of the public, even if it is just their "friends."
Because Facebook is an inherently public medium, government action in that realm is not overly intrusive. In one recent Supreme Court case, a government employee, using his employer-issued pager for personal messages, surpassed the allotted text messages, prompting the employer to perform an audit. The Supreme Court noted that the audit was not overly intrusive because the defendant could have easily opted for a more private way to communicate. Similarly, Facebook users have many other options of communicating over the Internet; however, they affirmatively choose to use a service that is much less private than email for instance.
The scene is not hard to imagine: tweens from across the country posting status updates from the steps of the Supreme Court: "Keep your hands of my Facebook!" However, we must be vigilant less an important part of the Facebook narrative privacy measures unwittingly aiding criminals will remain completely hidden.
Farrell Miller is a senior staff member of the Journal of Civil Rights and Economic Development. He has previously interned with the Federal Public Defender for the Western District of Washington, at Fasulo Shalley & Di Maggio in federal criminal defense and at the Kings County District Attorney's Office.
Suggested citation: Farrell Miller, Exhibitionists Demanding Privacy: Facebook and the Constitution, JURIST - Dateline, September 26, 2011, http://jurist.org/dateline/2011/08/farrell-miller-facebook-privacy.php.
Monday, September 19, 2011
Gil Auslander, St. John's University School of Law Class of 2012, is the author of the fourth article in a ten part series from the staffers of the Journal of Civil Rights and Economic Development under the direction of Professor Leonard Baynes. He writes on pre-conviction DNA collection in the UK and US...
Both the UK and the US, two nations with a rich and shared legal tradition and a deep commitment to individuals rights, have utilized DNA evidence in their criminal justice system. Despite these similarities, there are some significant differences in their approaches to DNA evidence. Until recently, the US has been hesitant to widely implement the use of DNA evidence. On the other hand, the UK has keenly embraced it. While both countries subscribe to the principle that individual privacy should be strenuously guarded against impermissible government intrusion, each has viewed the potential impact of DNA on individual privacy differently. Much of the contention regarding the use of DNA evidence in the US has surrounded the issue of collecting DNA before conviction. By contrast, in the UK, the greatest controversy concerns the retention of DNA profiles regardless of when the DNA was collected.
In the UK, two separate DNA regimes exist. Scotland employs a different DNA system than the other UK constituent countries. Both permit, and in fact require, the collection of DNA before an individual is convicted. The chief difference between the two systems is with respect to DNA retention. Despite being condemned by the European Court of Human Rights (ECHR), the DNA collection system in England, Wales and Northern Ireland permits the virtually indefinite retention of DNA, provided that the samples are used for law enforcement purposes. In contrast, Scotland, in nearly all circumstances, requires the destruction of DNA samples or profiles upon dismissal or acquittal.
The focus of litigation in US courts has been the timing of DNA collection rather than its retention. Much of the case law in the US concerns whether and under what circumstances DNA may be collected from defendants that have already been convicted of a crime. For example, cases have concerned when it is permissible to collect DNA from prison inmates, parolees and probationers. Recently, in response to changes in federal law, courts have begun to consider the constitutionality of DNA collection before conviction. Nevertheless, in contrast to the UK, which is bound by EU protections similar to the spirit and effect of the Fourth Amendment, the US has not seriously focused on issues of retention.
The approach to DNA in the UK and Scotland is more closely correlated to balancing the privacy rights of the individual while recognizing the interest of society at large to combat criminality. Notwithstanding the propriety of the UK's polemical retention system, both the DNA regimes used in the UK do permit the pre-conviction collection of DNA, and do so in a manner that reasonably upholds the balance between individual privacy and governmental interests. Once an individual is a suspect, and then arrested and subsequently indicted, his rights and liberties are curtailed the extent to which such rights are restricted is at the discretion of a court despite a presumption of innocence. Therefore, the collection of DNA, which is used to fully identify a defendant and expose connections to past criminal acts (for which an individual has no expectation of privacy), serves both the government's and the individual's interests: it assists the government in solving and prosecuting crime and assists the suspect in expediting criminal proceedings. It is the retention of DNA, not its collection, which bespeaks potential government abuse and Orwellian tendencies. Should the defendant be dismissed or acquitted, the DNA sample or profile is destroyed and the privacy interest of the individual restored. While a defendant's conviction would result in retention of his DNA profile, in that instance the defendant's status as a convict already significantly reduces his expectation of privacy.
The real safeguard for individual privacy lies in DNA retention polices, not in the timing of collection, as may be witnessed by the divergence in the policies of the UK and Scotland. Thus, instead of focusing on when DNA is collected, the US should follow the the UK model, which will permit a more precise balancing of the individual and governmental interests.
Gil Auslander graduated from Binghamton University with majors in Economics and Political Science.
Suggested citation: Gil Auslander, Comparative Policies: DNA Collection and Retention in the US and UK, JURIST - Dateline, September 19, 2011, http://jurist.org/dateline/2011/09/gil-auslander-pre-conviction-dna-collection.php.
Sunday, September 11, 2011
Lauren Prunty, St. John's University School of Law Class of 2012, is the author of the third article in a ten part series from the staffers of the Journal of Civil Rights and Economic Development under the direction of Professor Leonard Baynes. She writes on federal anti-terrorism law and the benefits of prosecuting domestic terrorists for treason...
Under current anti-terrorism statutes, "material support" is broadly defined. It does not require that the actor either intend to or know they are funding terrorism. This means that a person like Hassan can be found to materially support terrorism without ever knowing she did so. Hassan has declared her innocence. However, she has also admitted to raising the funds and, unfortunately, there is no distinction in the eyes of the law.
In October 2011, Hassan will face trial in a federal court on charges of conspiracy and providing material support to a terrorist organization. If she is convicted, she may face a life sentence. However, under the proposed Terrorist Expatriation Act, she could instead be subjected to an arguably more grave possibility; the recision of her US citizenshipa punishment far worse than prison, without a trial or due process protections that are mandated by the Constitution.
In May 2010, Senators Joe Lieberman and Scott Brown proposed an addition to the current expatriation statute, making the provision of material support of resources to a foreign terrorist organization an action for which a US citizen may lose his or her citizenship. The proposed amendment relies on the same broad definition of material support found in the anti-terrorism statutes. The bill seeks to bring existing federal law concerning expatriation up-to-date by including provisions applicable to the current War on Terror, such as allowing the State Department to revoke the citizenship of people suspected of allying themselves with terrorist organizations. As Senator Lieberman stated, the current War on Terror involves "fighting an enemy who doesn't wear the uniform of a conventional army or follow the law of war."
It is undoubtedly true that today's War on Terror falls outside the lines of traditional warfare, and perhaps we need to look at today's enemies in a new light. However, it is also important to remember that today's enemies may often be US citizens, fighting against our country from within. For example, Faisal Shahzad, the Times Square Bomber, planned and attempted to commit acts of war against his own country. Nonetheless, as a US citizen he was afforded the rights and protections guaranteed by the Constitution. However deplorable and reprehensible the actions of domestic terrorists may be, they are still US citizens and their constitutional rights must be honored. Otherwise, the rights and privileges of US citizenship ultimately become meaningless. Legislation that seeks to revoke an individual's citizenship before a criminal conviction, or before they are afforded a trial and due process, is quite simply unconstitutional.
Despite the changing nature of today's warfare, a domestic enemy is anything but new. Concerns regarding treason, the only crime listed in the Constitution, date back to the days of Benedict Arnold and the Founding Fathers themselves. The Constitution defines treason as an act of "levying war against the United States." Historically, during times of conventional war, an individual aiding the enemy by providing information, support or other resources would be subject to prosecution for treason. However, in the twenty-first century, questions of war and treason in the US do not involve conventional enemies. Rather, treason today takes the form of Faisal Shahzad or Farooque Ahmed, who attempted to bomb the DC Metro, and other domestic terrorists, whose actions are tantamount to waging war against the US.
If we recognize domestic terrorism as the modern day incarnation of treason, the proposed Terrorist Expatriation Act is both redundant and unnecessary. In addition to being constitutionally invalid, the proposed subsection merely reiterates federal expatriation law that has been in place since the 1940s, and under which an individual may be stripped of their citizenship following a trial and conviction for the charge of treason. In looking at the future of both domestic and foreign policy, the US must recognize that modern day terrorists who attack their homeland are in fact committing treason. Today's world no longer involves Benedict Arnold or Russian double agents, rather treason today has taken on the form of domestic terrorism and individuals that levy war against the US and advocate for the overthrow of the nation.
Lauren Prunty graduated from Villanova University in 2007 with a major in political science and a minor in business. She is the Managing Editor of the Journal of Civil Rights and Economic Development.
Suggested citation: Lauren Prunty, Terrorism as Treason: US Citizens and Domestic Terror, JURIST - Dateline, September 11, 2011, http://jurist.org/dateline/2011/09/lauren-prunty-domestic-terrorism-treason.php.
Sunday, September 11, 2011
Christie Tomm, St. John's University School of Law Class of 2012, is the author of the second article in a ten part series from the staffers of the Journal of Civil Rights and Economic Development under the direction of Professor Leonard Baynes. She writes on the need to maintain a single justice system in prosecuting alleged foreign terrorists...
The US government set a dangerous precedent when it passed the Military Commissions Act of 2006 (MCA). In doing so, it gave another governing body, one that is not required to adhere to the fundamental rights outlined in the Constitution, jurisdiction to determine the guilt or innocence of non-citizens suspected of terror-related crimes. For the Constitution to continue to serve as a fundamental governing principle nationally and internationally, its validity and dominance in the federal criminal justice system should never be questioned. To ensure this, when a person, citizen or non-citizen, is charged with any crime, from petty larceny to tax evasion or terrorism, there can be only one set of rules that govern what rights the defendant is entitled to.
The MCA is contrary to the principles established by the US during more than 200 years of common law. The MCA allows military tribunals to admit into evidence confessions that do not respect an individual's Miranda or Fifth Amendment rights, and the MCA does not require that a terror suspect be given a trial to determine his guilt once he is deemed an enemy combatant, essentially allowing for his indefinite detention. However, despite the fact that the federal criminal justice system does provide these fundamental rights, it is more than adequately able to handle the trials of suspected terrorists. The executive branch, through its specially trained district attorneys, FBI agents and terrorist task forces, is prepared to deal with the particular challenges that come with investigating and trying a suspect that is not a US citizen, likely to be uncooperative and to evoke controversy and intense emotion in the public forum.
The federal criminal justice system also has procedural benefits, such as well-established sentencing guidelines with longer minimum sentences for terrorism-related crimes and the district attorneys have more power to negotiate plea deals. Furthermore, there is a greater likelihood that other nations will investigate intelligence gathered from suspected terrorists when they are being tried in a more trusted federal court system. Additionally, federal courts also have the benefit of the public-safety exception recognized by the US Supreme Court in Quarles v. New York, which resolved Congress's concern that the Fifth Amendment right not to self-incriminate was an unmanageable burden on the prosecution of suspected terrorists. Under the public-safety exception, when the police are aware of a danger to the public that needs to be resolved immediately, they can ask suspects about the risk without Mirandizing them, and the statements will still be admissible at trial. Faisal Shahzad, the "Times Square Bomber," was interrogated under the public-safety exception, ultimately pleading guilty to the attempted bombing and then sentenced to life in prison.
In spite of these facts, Congress turned away from the federal criminal justice system and invoked the rules of war, which have not been considered since World War II, to create an alternate justice system and rules of criminal procedure. However, in doing so, Congress has opened the floodgates. This approach was never necessary to begin with in light of the adequacy of the federal criminal justice system. Furthermore, going forward there are grave concerns regarding the impossibility of limiting the MCA's use only to suspected terrorists that are foreign aliens. If the US is going to demand high human rights standards of other nations, it must meet them itself. The only way to do this is to exclusively use the federal criminal justice system in order to convey the confidence that the US can, and will, provide justice to those wronged while guaranteeing certain fundamental rights to defendants that are still presumed innocent. In no instance would such a statement have been more significant than in Khalid Sheik Mohammed's case.
Christie Tomm is a graduate of Swarthmore College with degrees in economics and history. Tomm is the author of the note "The U.S. Criminal Justice System: Protecting Constitutional Rights and National Security," which will be published in the forthcoming issue of the Journal of Civil Rights and Economic Development.
Suggested citation: Christie Tomm, Prosecuting Terrorism: Maintaining a United Criminal Justice System, JURIST - Dateline, September 11, 2011, http://jurist.org/dateline/2011/09/christie-tomm-prosecuting-terrorism.php.
Wednesday, September 07, 2011
Laura Frano, University of Pittsburgh Law School of Law Class of 2012, is a certified legal intern at the University of Pittsburgh Environmental Law Clinic. She writes on the growing popularity of natural gas as an energy source and the need to proactively implement international law and policy to regulate it...
At present, we remain in the wake of two epic environmental disasters, the BP Deepwater Horizon oil spill and the Fukushima Daiichi nuclear plant failure. Both disasters are linked directly to the global demand for energy. As the supply of natural resources tightens, greater risks are required to retrieve less. Thus the scale of the potential impact broadens, creating transnational and global environmental problems. As public concern mounts and social unrest grows, lawmakers in many nations are faced with drafting laws aimed at achieving energy independence while sufficiently regulating the exploration, development and implementation of energy sources. In such an environment, we are sure to experience a new wave of environmental legislative change not seen since the 1970s.
The 1970s are often looked on as a time of a truly citizen-based environmental movement. In the wake of the Vietnam War and the civil rights movement, Americans such as Rachel Carson with her famous book Silent Spring forced lawmakers to adopt extensive and innovative provisions on the protection and preservation of the environment. However, the legal issues, public concern and increased risks surrounding energy consumption and development today can no longer be addressed entirely at the national level. Developing a legal framework to mitigate and prevent disasters such as the Deepwater Horizon Oil Spill and Fukushima will require an international environmental legal framework.
Currently, international environmental law consists primarily of laws governing policy and procedure; typically these laws do not have a direct impact until adopted by individual countries through domestic legislation. Alternatively, substantive or procedural "soft law" could be implemented in the form of rulemaking, agreements or standards. In either case, there is no international entity to govern the field outside of the existing networks and agreements between governmental organizations, hybrid private-public organizations and private bodies. Thus the field is governed predominately by national laws controlling the mediums to be used for exploiting and regulating energy consumption.
Although commonly referenced out of necessity, studying the environmental laws of varied nations can help lawmakers and policymakers to create an international environmental framework that is more effective in governing the widespread risk and impact of today's energy market. The EU offers an example of what an international system may look like. The EU utilizes a unique hybrid approach in which both private and public law governs. Within the EU, a myriad of tools are used to reach the goals of environmental protection and sustainable economic practices, including self-regulatory laws, agreements between private and public entities and economic instruments such as direct taxation of polluting substances. This flexible approach allows for more positive inducements and technological innovation than the traditional command and control model of national environmental governance used in the US.
European nations develop their statutory controls for energy development and management considering the economic, political, social and cultural influences of the individual nation. This flexible approach creates more opportunity for such influences to be incorporated in legal and policy frameworks. As this approach is implemented throughout the EU, the result is a broad spectrum of varied approaches.
Italy's approach to meeting its energy needs offers an example. In the first weeks of June 2011, the Italian people showed up in numbers not seen since the mid-1990s to vote on a referendum banning nuclear energy. The result, by a remarkable 95 percent majority, was to continue the ban on nuclear energy. Italy first abandoned its nuclear program following a similar referendum in 1987. Meanwhile, pro-nuclear France has taken a differing approach and has banned natural shale gas development. Then there is Germany, which in early summer 2011 announced its plan to move quickly towards nuclear independence. If the majority of countries are to follow the footsteps of Italy and Germany, we can only expect more dependence on natural gas as a key energy resource. Thus we can also expect necessary changes in the environmental laws accompanying the exploration, extensive pipeline transportation system, trade and consumption of this natural resource on the international front. Natural gas, once considered a relatively stable player in the energy market, is now projected by some to become a leading energy source in many countries throughout the world. This is due to relatively recent technological advancements that have made unconventional, or "shale gas," recoverable at a feasible price point.
Unconventional natural gas, which is primarily made up of shale gas sources, has now been estimated to be as large as conventional natural gas resources in production volume. Further, global social and political uncertainties impacting traditional energy supplies are seen by some as an opportunity for natural gas to displace other fossil fuels as an energy source. Additionally, natural gas is particularly interesting in this age of alleged green legislation because its use could lead to lower emissions of greenhouse gases and other pollutants as compared to oil or coal. Current production of unconventional natural gas is mainly based on the large-scale development in the US, particularly the Marcellus Shale Basin located primarily in Pennsylvania. Other American shale gas formations have been developed in Texas, Wyoming and Louisiana.
However, there is a much larger global shale gas supply that is now available due to these technological advancements. Some estimate these formations could sustain global consumption for over 200 years at current rates. Natural gas can be used for many applications, most notably gas-fired generation for electric power supply, industrial processing, home heating fuel, fuel for residential appliances and as an alternative fuel for transportation vehicles.
Currently, the US is largely self-sufficient when it comes to natural gas, but with China projected to become a large importer, US producers are stockpiling resources to participate in the expanding global trade of natural gas. In contrast, Italy depends primarily on Russia and Algeria for its natural gas imports, and current Italian production has been sinking since the mid-1990s.
With Italy's recent decision to continue to ban nuclear energy and the current unrest in Libya, a key oil supplier, it is likely to consider increasing its usage of natural gas as an energy source. Interestingly, Italy ranks in the top 10 countries for percentage of vehicles powered by natural gas, a small but intriguing use for the fossil fuel. So what will the Italians do to keep their energy consumption needs met while maintaining their commitment to ban nuclear energy? As of June 2011, two large exploration permits have been issued to energy companies allowing them to explore unconventional gas reserves. Their findings conclude that the Po Valley Basin in Northern Italy contains approximately 28 trillion cubic feet of methane. Though a major discovery for Italy, the natural gas would require a sufficient pipeline infrastructure, and some major pipeline production has stalled and other major pipeline projects are not projected to begin until 2017. The question for countries is not likely to be if they will develop their natural gas reserves, but when they will be able to do so.
Given that the production of this resource appears inevitable for at least some major countries in the world, it is natural that the new age of environmental legislation will incorporate laws governing its management. In fact, studying the national legal frameworks surrounding natural gas is likely to offer a solid example of how the global environmental stakeholders will generally address environmental issues through the law. Perhaps most significantly, this subject will allow us to test the international, regional and national concepts related to environmental policies and values of sustainable development, environmental conservation and pollution control. In a general sense, environmental protection in the law boils down to assigning more weight to environmental factors as opposed to the factors focused on traditionally, such as economic, social and scientific value, personal property and individual rights. An international environmental law framework will be tested by the varied national views on how to weigh these factors. Hopefully the opportunity will be taken to preemptively avoid problems rather than retroactively attempting to lessen their effects in the wake of a disaster, as has been the pattern historically.
Laura Frano is pursing the Environmental Law Certificate at the University of Pittsburgh School of Law. She is a recipient of the Center for International Legal Education summer fellowship and the Nationality Rooms' Frances and Sully Nesta Italy Awards, which funded her research in Italy this summer.
Suggested citation: Laura Frano, Shale Gas and the Future of International Environmental Law, JURIST - Dateline, Sept. 7, 2011, http://jurist.org/dateline/2011/09/laura-frano-environmental-law.php.
Tuesday, September 06, 2011
Judd Baroff, St. John's University School of Law Class of 2012, is the author of the first article in a ten part series from the staffers of the Journal of Civil Rights and Economic Development under the direction of Professor Leonard Baynes. Baroff writes on reforming US education policy through the introduction of high school exit examinations...
In March 2010, President Barack Obama attempted to solve the problem by reauthorizing No Child Left Behind (NCLB), altering the original legislation substantially. His predecessor, George W. Bush, originally signed the act into law on January 8, 2002. Its purpose was "to ensure that all children have a fair, equal, and significant opportunity to obtain high-quality education" and to create "accountability systems" against which teachers and administrators could be judged. This past year, President Obama recognized that by almost any measure, the act had failed. Specifically, he attacked NCLB's system of "accountability," which wreaked havoc on schools by depriving the most desperate schools of sorely needed money. Unfortunately, he did not focus on two even greater concerns. Even though the number of "proficient students" had increased, the objective quality of American education sank; and the vague standards of NCLB had encouraged every state to dumb down its definition of proficiency to meet the quota that the act required.
Now, it is important to remember that NCLB is not a national exit examination. It demands a certain proficiency in fourth and eighth grade, but that proficiency is determined by the individual states and they can accommodate the federal "standards" by dumbing down the examination. A national exit examination would be a single examination that every person in the US would have to pass before graduating, whereas NCLB is a complex series of regulations that demand consistent communication between federal and local governments, constant new investment by states, and constant pain and interruption to students and teachers. If there were a national high school exit examination, the costs on all levels could be depressed by creating one examination (this examination must be spread over several days to be effective). Having one examination that does not change from state to state would mean less oversight from the federal government, thus lowering costs. Further, one examination would create one standard, the preparation of which would itself lower costs. If this examination was curriculum based, there would be no further interruptions into teaching"teaching to the test" would become simply teaching the material necessary. Finally, exit examinations have been shown to improve the performance of those who take them as compared to those who do not.
Although no study of domestic cases to date has examined why students who meet external exit examinations do better than those who do not, two foreign studies offered sundry hypotheses. Researchers in a German study [PDF] suggested that a uniform, centralized standard was clearer and more accurate, while decentralized examinations allowed administrators and parents to inflate observed educational achievement by deflating standards. Meanwhile, a Canadian study suggests that the externality of the centralized standards clearly show students how they compare to their peers throughout the whole province (or country in this instance), as opposed to simply within an individual school; this makes the examination more meaningful. Therefore, students that learn under centralized standards are more likely to take their work seriously, improve themselves and believe education is important. Finally, centralized exit examinations demand greater levels of knowledge from the students. This allows for greater distinction than a simple pass/fail minimum skills examination, which, in turn, encourages the more intellectually gifted students to work, where a minimum skills examination would encourage them in lethargy.
Our nation cannot alter its dispassion for education by congressional order. Still, it can learn from Germany and its Canadian cousins, and focus on how to improve its schools. An externally created, centralized high school exit examination has been shown to improve the performance of students. It will also decrease money now spent on individual states administering multiple examinations and spent by students acquiring higher degrees in an attempt to make up for the failure of our current high school system. The freed money, and the freed time that will come with it, could then be reinvested in creating the type of nation that will "out perform" everyone else in the twenty-first century.
Judd Baroff, Phi Beta Kappa, interned this summer with the Internal Revenue Service and is focusing on tax law. He is also a competitor for the Frank S. Polestino Trial Advocacy Institute at St. John's University School of Law.
Suggested citation: Judd Baroff, Centralized Exit Examinations and US Education Reform, JURIST - Dateline, Sept. 6, 2011, http://jurist.org/dateline/2011/09/judd-baroff-reforming-education.php.
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