School Board Candidate Responds to Allegation of Copyright and Test Security Violations

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Wednesday, November 2, 2016, 6:04 am
Alice Dreger

An anonymous person has accused East Lansing School Board member and candidate Erin Graham of violating copyright and breaching educational test security and Graham has provided her response to ELi.

ELi received the allegations on Sunday morning by email from a person who later confirmed that she or he was using a false name for the purposes. The accusations center on claims of “current board trustee Erin Graham sharing multiple, copyright protected materials on her Twitter feed. This includes test questions that are part of the Texas student assessment system, which is an egregious breach of test security. When students or teachers commit this violation in Michigan, that state goes after the individuals and the district's test scores and protocols are scrutinized. As a school board member, and University employee, she should know better…. In short, Trustee Graham has violated copyright laws of multiple entities, and breached the security of another state's student assessment system.”

The accuser, who says he or she is being anonymous out of fear of retaliation, linked two posts by Graham on Twitter and noted that these were in public Twitter conversation with me. At the time, Graham was choosing to follow-up on the issue of how sex ed is taught in schools, including our own, following national media attention of my live-tweeting my son’s sex ed class at East Lansing High School in April 2015.

While the accuser says in his or her communication that Graham and I are friends and suggests ELi has failed to cover this for that reason, I don’t recall ever meeting Graham outside of two sex-ed related school meetings after the national media coverage, and while we have had friendly interactions, we are not friends. The reason ELi had not covered this is that no one had brought it to our attention.

When the accusation was received by ELi this past Sunday, I contacted Graham on the same day for her response. She asked to be given the seven days that we gave candidate Kyle Guerrant to respond to accusations of plagiarism, but I replied that the election was too close in time to allow more than three days at the most. She responded yesterday evening with the statement below.

The two tweets date from May of 2015. Graham at the time was an MSU professor (as she is now) but she was not yet on the East Lansing School Board. On June 8, 2015, Nathaniel Lake Jr. resigned from the School Board and Graham was one of six people who applied to the Board to be selected for the open slot. She was chosen and appointed in late June, 2015.

In the first tweet, Graham included a photo of a test from Texas. The lower-hand right side of the image indicates a copyright of the test. Graham explains in the response reproduced below that the image was not taken by her and was in wide media circulation when she posted it. She says she did not violate copyright or breech test security.

In the second tweet, Graham reproduced portions of “The Wonder Years” curriculum used in the East Lansing Public Schools. This curriculum is sold by Wendy Sellers to our District by her private company, Health 4 Hire, Inc. (During the same period during which she has been selling her sex ed curricula to the district as the owner of a private corporation, Sellers has been employed and paid by the public agency, Eaton RESA, as the Regional School Health Coordinator to advise our schools about our sex ed curricula. She has called these “two separate roles.”) In her response below, Graham explains why she does not believe she violated copyright in reproducing some of Sellers’ curriculum.

[Statement from Erin Graham beings here:]

Thanks for asking before publishing a story about this. I was pretty sure my photos and comments regarding the items in the complaint were not a violation of any copyright but I called my attorney just to make sure. He quickly pointed me to the federal law covering this issue. He sent me the following excerpt from the Copyright Law: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

I did not violate copyright for several reasons. As to the Texas question, there were many people who were commenting on the question, which was already in wide circulation on the internet. I got that picture from a newspaper article, and it was a topic of wide conversation nationally. My public comment on the Texas question is protected by the First Amendment. No one has suggested that the newspapers that published that question -- and that I simply re-circulated -- have violated the testing company's copyright. Again, I did not create the picture. The picture is in the public domain and as such I did not violate copyright laws nor did I breach testing security. 

My lawyer also told me that there is another reason that I could not have violated copyright laws. My comments on both tweets were made under the "fair use" doctrine. The federal law has adopted it and it provides for "...the fair use of a copyrighted work, including such use by reproduction in copies or phone records ...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research is not an infringement of copyright." The other materials were in use by the East Lansing School District. They were shown to me in May of 2015, prior to my time on the board, as a parent of a student who was given access to them to evaluate. I had a right to discuss the materials to decide if they met my values. I was clearly engaged in a conversation about the quality of the question and the teaching guidance portrayed in my twitter photos. As such, I was not violating any copyright. There is no basis to find that I violated any limit on my fair use right to publish that is allowed for work that is otherwise subject to some limited copyright protection under law. I did not violate any limit in the law on the fair use and right of public comment on what I published. I raised questions about teaching materials to help decide what is appropriate for our children (and for my children) to use in East Lansing Public Schools. My comments were a fair use and I had a First Amendment right to make the comments that I made. The distribution of the materials was a "fair use" of the materials. The anonymous person who published the attack on my comments about these questions has made a baseless allegation without any support.

As a member of the East Lansing Board, I am committed to allowing every parent sufficient access to questions used in our health curriculum so that no company can try to sell the District materials taught in secret and without any input from the community. The sex education advisory board and the school board have insisted on transparency and input from all parents on the curriculum. Any person who suggests that a company, any company, should be able to sell health curriculum materials to our District and evade any public discussion of the contents of those materials does not understand our District policies or state or federal law. We give every parent a right to see the materials. We give the entire community an opportunity to comment on the health curriculum materials. Anyone who claims a right to use copyright law to secretly teach our children about sex ed or health issues without scrutiny and discussion does not understand the public's right to know. We have a right to present to our children curriculum that has been fully discussed in public and approved by our Curriculum Director and Superintendent with input from the Board, that meets the needs of our students, parents, and teachers, and that is consistent with our values. Copyright law cannot be used as a ruse to silence such discussion. [End of statement by Erin Graham]

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