Legal Commentary

Perhaps, as a resident of New York City, I?m particularly sensitive to nanny-ism characterizations in light of the nanny-label bludgeoning that our fearless Mayor (otherwise known as Nanny Bloomberg) has endured in the wake of NYC?s smoking ban, the Opportunity NYC program, and, most recently, mandatory restaurant calorie count displays and the transfat ban. (Side bar: The McDonald?s chocolate triple thick shake has 1160 calories??) But in reflecting on my first year of teaching, I?m struck by how frequently I found myself torn between nanny impulses (to institute class policies that force students to refrain from using the Internet during class, do the reading, participate in class discussion, etc.) and self-imposed nanny backlash (these are adult graduate students who should either already have self-discipline or develop it before entering the professional world).

Since all true dilemmas in law deserve a balancing test, here?s one to consider when contemplating a nanny-type classroom policy: The greater (1) the discrepancy between professorial and student knowledge regarding the benefits/harms of the behavior being contemplated for management and (2) the potential for those benefits/harms to accrue to other students, the more appropriate the implementation of a classroom policy to manage the behavior. The aggregate of factors one and two should then be weighed against the costs of enforcing the policy.

The first factor (discrepancy in knowledge) recognizes that as professors we sometimes have a much better understanding of why behaviors are good or bad for students. For example, with respect to class participation, we have the experience to know that even the student dedicated to a big firm corporate law career (and therefore sitting in the back row and justifying the failure to participate with the oft-heard rationalization of ?I?ll never have to speak in court?) will be asked to give oral reports and analysis to colleagues and clients, run conference calls, and generally be capable of clear and calm public speaking. With respect to the second factor, we professors are also acutely aware that good class discussion helps all students; thus, failure to participate can negatively impact not only the non-participating student but also his or her peers.

With respect to the third factor (costs of enforcement), I mean not administrative costs (record keeping and the like) but costs in the sense of what the policy and its enforcement communicate about expectations and professionalism. In the context of class participation, cold calling (or some version thereof) can communicate an expectation of preparedness and professionalism. So even if the rationale for cold calling stems from a nanny impulse (it will be good for you to participate and do the reading and without cold calling you might not), it isn?t overtly ?nanny? in tone and doesn?t subvert a professional atmosphere. A counter example with respect to enforcement is recreational use of the Internet during class. I have yet to discover a way to effectively enforce a policy against in-class Internet use that isn?t so heavy-handedly Nanny State as to undermine a professional atmosphere and potentially outweigh the benefits of preventing recreational Internet use. (Considered and rejected: trolling the classroom playing ?I spy? for errant screens, having my assistant peep through a window at the back of the classroom to spot noncompliance, the ?freeze, hands in the air? gotcha game, the Internet ?jammer? (illegal), turning off the Internet all together (not an option at my school).) So next year what I may do instead is give up on enforcing a no-Internet policy and instead try to minimize factor one (by spending some time explaining to my students in detail why in-class, recreational Internet use is not in their best interest) and factor two (by enforcing a robust participation scheme to blunt the negative impact of Internet use on classroom discussion).

So here is the first tentative outing of a new prof?s ?test? for when to intercede with classroom policies designed to make students do what we (think we) know is best for them. I?m off to Starbucks to grab a grande skim latte (130 calories) and avoid at all costs the apple fritter (490 calories).