Law Commons^™

Academic Freedom And Professorial Speech In The Post-Garcetti World, Oren R. Griffin

Seattle University Law Review

Academic freedom, a coveted feature of higher education, is the concept that faculty should be free to perform their essential functions as professors and scholars without the threat of retaliation or undue administrative influence. The central mission of an academic institution, teach-ing and research, is well served by academic freedom that allows the faculty to conduct its work in the absence of censorship or coercion. In support of this proposition, courts have long held that academic freedom is a special concern of the First Amendment, granting professors and faculty members cherished protections regarding academic speech. In Garcetti v. Ceballos, the …

October 26, 2013: In God We Trust In The Public Schools, Bruce Ledewitz

Hallowed Secularism

Blog post, “In God We Trust in the Public Schools“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Gay Talk: Protecting Free Speech For Public School Teachers, Stephen J. Elkind, Peter D. Kauffman

Stephen J Elkind

In Garcetti v. Ceballos, the Supreme Court held that public employees are not entitled to free speech when speaking “pursuant to their official duties.” In most situations, this strips teachers of First Amendment protection when they discuss controversial subjects, such as homosexuality, with their students. To ensure their classrooms are tolerant and accepting environments for homosexual and questioning youth, teachers need free speech protection against adverse employment action their schools might take. The Garcetti Court, acknowledging that “expression related to academic scholarship and classroom instruction implicates” unique constitutional concerns, explicitly left open whether its decision applied in the education …

Against Agnosticism: Why The Liberal State Isn't Just One (Authority) Among The Many, Linda C. Mcclain

Faculty Scholarship

This article takes up the gauntlet thrown down by Professor Abner Greene’s recent book, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy, to those scholars, politicians, and activists who believe that realizing the ideal of e pluribus unum (out of many, one) as well as constitutional principles of liberty and equality require a robust role for government. Government, Greene argues, is just one source of authority among many others, and citizens – or even public officials – have no general moral duty to obey the law. The political and constitutional order of the United States, he contends, …

Penumbral Academic Freedom: Interpreting The Tenure Contract In A Time Of Constitutional Impotence, Richard J. Peltz-Steele

Richard J. Peltz-Steele

This article recounts the deficiencies of constitutional law and common tenure contract language - the latter based on the 1940 Statement of Principles of the American Association of University Professors - in protecting the academic freedom of faculty on the modern university campus. The article proposes an Interpretation of that common language, accompanied by Illustrations, aiming to describe the penumbras of academic freedom - faculty rights and responsibilities that surround and emanate from the three traditional pillars of teaching, research, and service - that are within the scope of the tenure contract but not explicitly described by it, and therefore …

How Quickly We Forget: The Short And Undistinguished Career Of Affirmative Action, Robert Parrish

Robert Parrish

Diversity initiatives in higher education, also known as affirmative action are nearing their nadir. For those who have been watching the jurisprudence and the progression of events closely this should come as little surprise. These initiatives have been under attack since their very inception and now sit teetering on the brink of being declared unconstitutional as the United States Supreme Court considers Fisher v. Texas. Beginning with Regents of California v. Bakke in 1978, the Supreme Court has gradually and consistently whittled away these higher education diversity programs, leaving them currently in a vulnerable and legally precarious position. The Court’s …

Article: No Child Left Behind: Why Race-Based Achievement Goals Violate The Equal Protection Clause, Ayriel Bland

Ayriel Bland

In 2002, No Child Left Behind (NCLB) was passed under President George W. Bush with the goal of increasing academic proficiency for all children in the United States by 2014. Yet, many states struggled to meet this goal and the Secretary of the U.S. Department of Education allowed states to apply for waivers and bypass the 2014 deadline. Some states implemented waivers though race-based achievement standards. For example, Florida in October 2012, established that by 2018, 74 percent of African American and 81 percent of Hispanic students had to be proficient in math and reading, in comparison to 88 percent …

Tactics, Strategies & Battles—Oh My!: Perseverance Of The Perpetual Problem Regarding Preaching To Public School Pupils & Why It Persists, Casey S. Mckay

Casey Scott McKay

After reviewing the history of the religious war on Darwin’s Theory of Evolution, my article, “Tactics, Strategies & Battles—Oh My!: Perseverance of the Perpetual Problem Regarding Preaching to Public School Pupils & Why it Persists,“ examines why such a seemingly well-settled issue survives and, to some extent, succeeds.

First, by exploiting common misconceptions among the American public, lawmakers are able to take advantage of ignorance driven by strong emotions. Next, religious special interests groups, with seemingly unlimited funds, thrust propaganda supported by worldwide media reinforcement on an already vulnerable American public. Thus, irresponsible state legislators, caught between a rock and …

The Constitutional Issues Surrounding The Science-Religion Conflict In Public Schools: The Anti-Evolution Controversy, Michael M. Greenburg

Pepperdine Law Review

Since the infamous Scopes trial the matter of the constitutional validity of the "anti-evolution" laws has plagued both legal scholars and school administrators. The courts have generally invalidated legislation which bans outright the teaching of evolution in public schools, but with the advent of the "balanced treatment" acts, a revival of this litigation has begun. The author examines the constitutional analysis utilized by the courts in dealing with the "anti-evolution" and "balanced treatment" acts and provides an historical perspective of the first amendment to question the Court's response to the issue.

The Utilization Of Intermediate Scrutiny In Establishing The Right To Education For Undocumented Alien Children: Plyler V. Doe, Diane I. Osifchok

Pepperdine Law Review

The recent decision in the case of Plyer v. Doe has seemingly solidified the use of the intermediate level of scrutiny as a legitimate standard of review. The Supreme Cour4 in its refusal to apply both the harsh level of strict scrutiny and the often inadequate lower level of a rational basis standard, sought a mid-level analysis. Thus, the intermediate level of review enabled the Court to hold the Texas statute which denied undocumented alien children a free public education constitutionally infirm.

An Analysis Of Selective Service System V. Minnesota Public Interest Research Group, Teresa L. Howell

Pepperdine Law Review

Section 1113 of the Department of Defense Authorization Act passed in 1982 prohibits the receipt of Title IV educational funds by students who do not comply with draft registration requirements. In Selective Service System v. Minnesota Public Interest Research Group, the United States Supreme Court upheld section 1113 in the face of a multi-tiered constitutional challenge. After exploring the history of section 1113, the author examines the Supreme Court's analysis of each of the constitutional challenges: bill of attainder, privilege against self-incrimination, and equal protection. Finally, the author investigates the probable impact of the Court's decision.

New Jersey V. T.L.O.: The Supreme Court Severely Limits Schoolchildrens' Fourth Amendment Rights When Being Searched By Public School Officials, Missy Kelly Bankhead

Pepperdine Law Review

No abstract provided.

Freedom From Ignorance: The International Duty To Provide Public Education, Areto A. Imoukhuede

Faculty Scholarship

This paper argues that public education is an international human right that the U.S. ought to recognise and protect. Recognising a right to public education would correct a major inconsistency in U.S. law by bringing education rights docrtine more in line with international human rights law. This piece discusses how current U.S. education rights doctrine is inconsistent with U.S. tradition and legal precedent. It then demonstrates how international law recognises public education as a fundamental duty of government before arguing for why the U.S. is obligated to follow international law regarding the right to public education.

The Legal Impact Of Emerging Governance Models On Public Education And Its Office Holders, Robert A. Garda Jr., David Doty

Robert A. Garda

The idea that changing the formal structure of governance can lead to better schools is rooted in American political and intellectual history. Politicians, career educators, parents, business leaders, and investors continue to wrangle over the control of public schools all across the country. With these battles for control have come more lawsuits, more laws, and more administrative regulations dictating the governance structures of educational institutions. Indeed, one could argue that, in recent years, debates over how schools and school districts should be governed have subsumed the curriculum debates over how and what children should be taught. Leadership matters, and therefore …

Conditional Spending After Nfib V. Sebelius: The Example Of Federal Education Law, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

In NFIB v. Sebelius, the Supreme Court’s recent case addressing the constitutionality of the Affordable Care Act, the Court concluded that the expansion of Medicaid in that Act was unconstitutionally coercive and therefore exceeded the scope of Congress’s authority under the Spending Clause. This was the first time that the Court treated coercion as an issue of more than mere theoretical possibility under the Spending Clause. In the wake of the Court’s decision, commentators have expressed either the concern or the hope that NFIB’s coercion analysis may lead to the undoing of much of the federal regulatory state, …