Digital Commons Network^™

Children's Right To Access Potentially Critical Learning: Liberating Youth From Propagation Of Structural Injustice, Melina Constantine Bell

Scholarly Articles

Over the past two years, U.S. states have passed educational gag orders (“EGOs”) that prohibit teaching about antiracism and LGBTQ+ identities. EGOs are destructive in at least two ways. First, they violate children’s right to access information that is potentially critical for their individual well-being. Second, they interfere with cultivating mutual respect in a pluralistic society, which serves children’s present and future wellbeing interests. In this article, I aim to demonstrate the harms that EGOs inflict, and how revising the legal framework governing children’s rights in the United States can increase both children’s and adults’ well-being. That revision entails the …

The Chief Justice And The Page: Earl Warren, Charles Bush, And The Promise Of Brown V. Board Of Education, Todd C. Peppers

Scholarly Articles

In October Term 1954, the Supreme Court heard oral arguments regarding the implementation of the Brown decision. The resulting opinion is commonly referred to as “Brown II.” In his unanimous opinion, Chief Justice Earl Warren ordered local school districts to desegregate their schools “with all deliberate speed.” Supporters of immediate integration were dismayed by the vague language, which ultimately allowed southern states to use a variety of tactics to deliberately evade and resist the Court’s mandate that public schools be desegregated.

What has been forgotten in the discussion of Brown II and the “all deliberate speed” standard is that …

Peeling Back The Student Privacy Pledge, Alexi Pfeffer-Gillett

Scholarly Articles

Education software is a multi-billion dollar industry that is rapidly growing. The federal government has encouraged this growth through a series of initiatives that reward schools for tracking and aggregating student data. Amid this increasingly digitized education landscape, parents and educators have begun to raise concerns about the scope and security of student data collection.

Industry players, rather than policymakers, have so far led efforts to protect student data. Central to these efforts is the Student Privacy Pledge, a set of standards that providers of digital education services have voluntarily adopted. By many accounts, the Pledge has been a success. …

Suicide On Campus: The Appropriate Legal Responsibility Of College Personnel, Ann Maclean Massie

Scholarly Articles

No abstract provided.

The Problem Of Religious Learning, Marc O. Degirolami

Scholarly Articles

The problem of religious learning is that religion-including the teaching about religion-must be separated from liberal public education, but that the two cannot be entirely separated if the aims of liberal public education are to be realized. It is a problem that has gone largely unexamined by courts, constitutional scholars, and other legal theorists. Though the U.S. Supreme Court has offered a few terse statements about the permissibility of teaching about religion in its Establishment Clause jurisprudence, and scholars frequently urge policies for or against such controversial subjects as Intelligent Design or graduation prayers, insuffi- cient attention has been paid …

Note, Kdm Ex Rel. Wjm V. Reedsport School District, Kevin C. Walsh

Scholarly Articles

No abstract provided.

Typology And Critique Of Title Ix Sexual Harassment Law After Gebser And Davis, William A. Kaplin

Scholarly Articles

Sexual harassment is not a new phenomenon. It has long been with us in harassment problem in colleges and universities, focusing particularly on the harassment of students by their teachers or by their peers. Special attention will be given to whether and how students may hold colleges and universities liable in court for money damages for a failure to protect them from harassment. Then, using such private causes of action by students as the centerpiece, this article will develop a typology of Title IX sexual harassment claims and of the variable contexts in which they may arise. Following the typology, …

What Does The Constitution Say About The Vouchers?, John H. Garvey

Scholarly Articles

No abstract provided.

A Proposed Process For Managing The First Amendment Aspects Of Campus Hate Speech, William A. Kaplin

Scholarly Articles

For public institutions, attempts to regulate hate speech raise substantial legal issues under the First Amendment of the U.S. Constitution. For private institutions, which may not be bound by the First Amendment, attempts to regulate hate speech raise sensitive policy questions concerning the role of free expression on campus. Numerous articles (many of which are listed in the references below) have undertaken substantive analysis of these constitutional issues and policy questions. In contrast, this article explores a preliminary and overarching concern: the process by which a college or university addresses the problem of hate speech, and in particular the process …

‘Hate Speech’ On The College Campus: Freedom Of Speech And Equality At The Crossroads, William A. Kaplin

Scholarly Articles

This article focuses on the First Amendment implications of the hate speech problem, comparing the free speech values that may be endangered by attempts to regulate hate speech with the equality values that may be endangered if hate speech is left unchecked. I will also concentrate on processes that universities may devise to resolve these crucial value questions. My goal is to add order and balance to the differing points of view concerning hate speech, and to bring a measure of practicality and concreteness to what has often been a rather theoretical and abstract debate. In short, my focus will …

Law On The Campus 1960–1985: Years Of Growth And Challenge, William A. Kaplin

Scholarly Articles

The last quarter century has witnessed an enormous expansion in the law's presence on America's campuses. Whether one is engaged in campus disputes, planning to avoid future disputes, or charting an institution's policies and priorities, law has become an indispensable component of decision making. Questions of educational policy have increasingly become converted into legal questions as well. The last twenty-five years have seen courts called upon to resolve thorny issues of academic discipline with respect to student misconduct, academic dishonesty, and unsatisfactory academic performance. Some institutions have been sued for failing to desegregate their student bodies and faculties, while others …

Another Way Of Looking At School Aid, John H. Garvey

Scholarly Articles

No abstract provided.

Accrediting Agencies’ Legal Responsibilities: In Pursuit Of The Public Interest, William A. Kaplin

Scholarly Articles

This article considers the evolution in the way courts have labeled or categorized accrediting agencies, and the legal and policy consequences of this evolution. Discussion will then focus on the "public interest" standard that is the core of these developments and on ways in which accrediting agencies can fulfill their legal responsibilities under this standard.

Student Rights Of Passage: A Full Or Limited Partnership In University Governance, George P. Smith Ii

Scholarly Articles

No abstract provided.

An Overview Of Legal Principles And Issues Affecting Postsecondary Athletics, William A. Kaplin

Scholarly Articles

Athletics, as a subsystem of the postsecondary institution, is governed by the basic principles applicable to higher education generally. These principles, however, must be applied in light of the particular characteristics and problems of curricular, extracurricular, and intercollegiate athletics programs. A student athlete's eligibility for financial aid, for instance, would be viewed under the general principles governing financial aid, such as contract law and constitutional due process, but aid conditions related to the student's eligibility for or performance in intercollegiate athletics may create a special focus for the problem. In Taylor v. Wake Forest, for instance, the court held that …

Student Participation In University And Law School Governance, George P. Smith Ii

Scholarly Articles

To gain a better perspective for analysis of the present extent of student participation in university governance, it will be helpful to examine the experiences of several countries in Western Europe. This Article will examine the means by which American law schools have permitted reasonable student participation without threatening the academic freedom of law school faculties, a threat which the European experience reminds us is very real.

Flag Salute, Patriotic Exercises, And Students’ Rights, William A. Kaplin, Edward P. Jesella Jr.

Scholarly Articles

The public school system is the major American social institution responsible for the transmission of our democratic heritage to present and future generations. In fulfilling this responsibility, the schools often confront problems involving their duty to inculcate students with a sense of patriotism. Probably the most controversial questions have concerned compulsory flag saluting and participation in patriotic exercises. Can a school demand that students salute the flag?

Questions such as this arise under circumstances where students, allegedly exercising First Amendment rights, clash with school authorities engaged in the promulgation and enforcement of school rules. This interplay of educational order and …

The Marjorie Webster Decisions On Accreditation, William A. Kaplin

Scholarly Articles

What does the Marjorie Webster case portend for the future of accreditation in higher education? Will the courts now “remain aloof from the accrediting process” or will they increase their scrutiny of the “standards by which higher education is governed?” The author explores questions raised by the extensive litigation and public debate produced by this tradition-breaking lawsuit.

Judicial Review Of Accreditation: The Parsons College Case, William A. Kaplin

Scholarly Articles

Since courts have seldom become involved in the process of educational accreditation that operates in the United States, the private regional and professional accrediting agencies that evaluate our educational institutions have generally functioned without judicial (or for that matter, legislative) interference. This freedom from any form of governmental control has been of singular importance in shaping the development of a private accreditation system unique to this country. Any court case challenging some aspect of this system could, therefore, be of enormous significance to education and the future of accreditation in the United States. Such a case is Parsons College v. …

The Legal Status Of The Educational Accrediting Agency, William A. Kaplin, J. Philip Hunter

Scholarly Articles

The educational accrediting agency is a powerful instrumentality in the United States-able, with minimal governmental interference, to set policies and standards in an area of vital concern to the public. As education becomes more complex, and as our society increasingly relies upon educational training and upon the standards by which that training is evaluated, the impact which the accrediting agency will have upon educational institutions and students enrolled in them will correspondingly increase. For all its influence, however, the accrediting agency occupies an ambiguous legal position. Therefore, in order to lay the framework for a more thorough understanding of the …