Note: Jal Mehta, associate professor at the Harvard Graduate School of Education, is guest blogging this week.

I was at a conference last spring sponsored by a group of foundations seeking to chart a new path for educational improvement. During that conference, a law professor who I deeply respect suggested that our reform efforts needed to remember the “Bad Man” theory. What’s that, a number of us asked? It’s a principle of jurisprudence, he explained, invented by Oliver Wendell Holmes that says that when making policy we should always be cognizant of the “bad man.” The bad man is the man who always seeks to circumvent the policymakers’ intent, looking for loopholes or other ways around the law. A good policy, the law professor averred, seeks to anticipate what the “bad man” might do, and create additional regulations that would cover any contingency he might seek to exploit.

While there are circumstances in which the bad man theory is appropriate (financial regulation comes to mind), as a theory of educational improvement today I think it is deeply flawed for at least 3 major reasons:

1) It assumes that our major problem is controlling bad actors when the major challenge is sustaining the motivation and effort of good people;

2) It tends to reinforce the destructive compliance mentality which gives states and districts a bad name;

3) It assumes that people far from students are wiser and more able to guide their lives for the better than the people they see everyday.

To be fair, the bad man theory in education is well-intentioned--it stems from a civil rights rationale, in which schools (and many other institutions in society) could not be trusted to serve the basic rights of its students. At a time, not that long ago, when handicapped students were warehoused rather than put with mainstream students, when schools were refusing court ordered integration, or when students for whom English was a second language had no rights, then it made sense for the state and federal government to use their full powers to protect student rights by utilizing the bad man doctrine.

But those are not the problems that face us today. Building on those civil rights successes, we now want students to learn deeply, think critically, and exit school “college and career ready.” For students to do that, we need teachers who are themselves skilled and expert, knowledgeable about content, and able to help students achieve these increasingly complex understandings. This kind of expertise is not easily amenable to rule-making from afar; it requires the careful cultivation and growth of a teachers’ practice over time. When the problem changes from establishing floors to building a culture of quality and excellence, the bad man theory is particularly ill-suited to the task.

There is a parallel here for students. Generations of sociological research has suggested that upper and middle class students are treated as if they are people whose opinions, knowledge, and ideas are worthy of respect, whereas working class and poor students are treated as if they are “bad men” who need to be controlled. As a principal at one good upper middle class school we visited put it, and I’m paraphrasing, we organize our culture and structures as if students were well-intentioned people who can be trusted, which works 97.5 percent of the time, and when it doesn’t, we deal with it.

Returning to teachers, there is also the issue of motivation and morale. Just surviving as a good teacher is hard work - the typical high school teacher might have 3 to 4 classes to prep, 120-150 students to manage, plus the endless grading of homework, and responding to students various needs. And if the system is going to get better, we need teachers not only to do that, but to maintain enough bandwidth and energy to develop new ways to teach, mentor younger colleagues, and create new curriculum. To achieve these ends would require a different way of treating teachers--fundamentally as people who are worthy of respect and whose intrinsic motivation needs to be tapped--call it the “good woman” theory of education reform.

Things don’t look good for the good woman agenda at the moment. In particular, the emphasis on teacher evaluation as a major driver of reform makes a fundamental error by organizing a policy agenda around pushing out a small number of bad performers when the real challenge is improving the skills and expertise of the vast majority of teachers who are not going to be fired. The modal teacher had 15 years experience in 1987-88; in contrast, the modal teacher in 2007-08 was in her first year. The reasons for this are complex, but it seems reasonable to suspect that policies organized around the bad man theory are one culprit.

Just to be clear, organizing around a “good woman” theory of action isn’t the same as saying that if we just trusted teachers everything would be hunky-dory. It wouldn’t. But what it is saying is that if we want widespread improvement in teaching, then we need to respect teachers, give them opportunities to learn and grow, and see the retention of master teachers as the most precious resource in the process of improvement. A recent example from Cincinnati shows the way in which a 28 point increase in the graduation rate was achieved through a mutual problem solving process that was deeply respectful of faculty ideas and initiative.

There are any number of policies that might realize a “good woman” agenda, which I’ve talked about more elsewhere, but for now just consider it as a first design principle by which policy proposals should be judged: Does it assume a bad man or a good woman?

-- Jal Mehta