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Full-Text Articles in Law
The Promise And Peril Of Using Disability Law As A Tool For School Reform, Claire Raj
The Promise And Peril Of Using Disability Law As A Tool For School Reform, Claire Raj
Washington Law Review
Advocates have recently devised a radical litigation approach to force broad systemic changes in public schools using the most unlikely of tools: disability law. If they succeed, disability law stands to eclipse any other cause of action as the most effective means of school reform. This novel approach relies on groundbreaking research demonstrating a correlation between Adverse Childhood Experiences (ACEs) that children encounter outside school and the learning challenges they face in school. Focusing on this link, advocates claim that children from impoverished and crime-ridden neighborhoods, by virtue of where they live, have disabilities that entitle them to system-wide school …
The Failings Of Title Ix For Survivors Of Sexual Violence: Utilizing Restorative Justice On College Campuses, Katie Vail
The Failings Of Title Ix For Survivors Of Sexual Violence: Utilizing Restorative Justice On College Campuses, Katie Vail
Washington Law Review
Universities should adopt restorative justice practices to serve the legal and personal needs of student survivors of sexual violence. Title IX prohibits discrimination on the basis of sex in education programs and activities operated by recipients of federal financial assistance. Since 1997, the Department of Education’s Office for Civil Rights has issued “Dear Colleague Letters” to federally funded institutions to assist with Title IX compliance and implement procedures for complaints of sexual violence. In 2011, Assistant Secretary for Civil Rights Russlyn Ali under the Obama administration issued a Dear Colleague Letter, which expanded protections for survivors. However, it prohibited the …
I Would Like To Request Your Academic Records: Ferpa Protections And The Washington Public Records Act, Tevon Edwards
I Would Like To Request Your Academic Records: Ferpa Protections And The Washington Public Records Act, Tevon Edwards
Washington Law Review
The Washington Public Records Act is a broad mandate for the release of almost all public records. In response to a request, a state or local agency must produce the requested records unless a specific exemption applies. In part to enforce compliance on public agencies, the Public Records Act requires that a requester be compensated for statutory fees, costs, and attorneys’ fees if a government agency declines to provide a public record, is challenged, and the requester succeeds in court. However, within public education agencies, compliance with the Washington Public Records Act can run against the agencies’ requirements under the …
The Washington State Constitution And Charter Schools: A General And Uniform Prohibition?, Asti Gallina
The Washington State Constitution And Charter Schools: A General And Uniform Prohibition?, Asti Gallina
Washington Law Review
In its 2015 opinion in Washington League of Women Voters v. State, the Washington State Supreme Court invalidated Initiative 1240—which authorized the creation of charter schools. The Court considered two issues on appeal: (1) that the charter schools unconstitutionally diverted common school funds to non-common schools; and (2) that the charter schools violated article IX, section 2 requiring the legislature to establish a “general and uniform system of common schools.” The Court resolved the case on the common school fund issue and did not reach the “general and uniform” challenge. In its slip opinion, the Court had included a …
Copyrights In Faculty-Created Works: How Licensing Can Solve The Academic Work-For-Hire Dilemma, Glenda A. Gertz
Copyrights In Faculty-Created Works: How Licensing Can Solve The Academic Work-For-Hire Dilemma, Glenda A. Gertz
Washington Law Review
Many copyrightable works of university faculty members may be works-for-hire as defined under current U.S. copyright laws. Copyrights in works-for-hire are treated differently than copyrights in other works with respect to ownership, duration, termination rights, and requirements for transfer. Ambiguity over whether a specific faculty-created work is a work-for-hire creates legal uncertainties and potential future litigation about the initial ownership of the copyright, length of the copyright term, and termination rights which could impact all future transfers and licensing. Many universities have attempted to define ownership of faculty-created works through university policies. These policies are ineffective to alter the presumption …
Washington State's Duty To Fund K-12 Schools: Where The Legislature Went Wrong And What It Should Do To Meet Its Constitutional Obligation, Daniel C. Stallings
Washington State's Duty To Fund K-12 Schools: Where The Legislature Went Wrong And What It Should Do To Meet Its Constitutional Obligation, Daniel C. Stallings
Washington Law Review
The Washington State Constitution makes education Washington State’s top priority. Article IX, section 1 proclaims that “[i]t is the paramount duty of the state to make ample provision for the education of all children residing within its borders . . . .” In the 1978 case of Seattle School District v. State, the Washington State Supreme Court interpreted this language as a command to the state legislature. The Court ordered the legislature to fulfill its constitutional duty by defining and fully funding “basic education” and a “basic program of education.” The legislature attempted to comply by passing and subsequently …
Washington State's Duty To Fund K-12 Schools: Where The Legislature Went Wrong And What It Should Do To Meet Its Constitutional Obligation, Daniel C. Stallings
Washington State's Duty To Fund K-12 Schools: Where The Legislature Went Wrong And What It Should Do To Meet Its Constitutional Obligation, Daniel C. Stallings
Washington Law Review
The Washington State Constitution makes education Washington State’s top priority. Article IX, section 1 proclaims that “[i]t is the paramount duty of the state to make ample provision for the education of all children residing within its borders . . . .” In the 1978 case of Seattle School District v. State, the Washington State Supreme Court interpreted this language as a command to the state legislature. The Court ordered the legislature to fulfill its constitutional duty by defining and fully funding “basic education” and a “basic program of education.” The legislature attempted to comply by passing and subsequently …
Washington State's Duty To Fund K-12 Schools: Where The Legislature Went Wrong And What It Should Do To Meet Its Constitutional Obligation, Daniel C. Stallings
Washington State's Duty To Fund K-12 Schools: Where The Legislature Went Wrong And What It Should Do To Meet Its Constitutional Obligation, Daniel C. Stallings
Washington Law Review
The Washington State Constitution makes education Washington State’s top priority. Article IX, section 1 proclaims that “[i]t is the paramount duty of the state to make ample provision for the education of all children residing within its borders . . . .” In the 1978 case of Seattle School District v. State, the Washington State Supreme Court interpreted this language as a command to the state legislature. The Court ordered the legislature to fulfill its constitutional duty by defining and fully funding “basic education” and a “basic program of education.” The legislature attempted to comply by passing and subsequently …
Finding The Least Restrictive Environment For Preschoolers Under The Idea: An Analysis And Proposed Framework, Theresa M. Demonte
Finding The Least Restrictive Environment For Preschoolers Under The Idea: An Analysis And Proposed Framework, Theresa M. Demonte
Washington Law Review
Under the Individuals with Disabilities Education Act, both school- and preschool-age children who qualify for special education services are entitled to education in the least restrictive environments appropriate to their needs. For school-age children, the presumptive least restrictive environment is the regular class where their nondisabled peers participate. By contrast, defining an analogous environment for preschool children is difficult, because public schools rarely provide preschool for children without disabilities. This Comment argues that the Act’s language, principles, purposes, and implementing regulations suggest that the settings where a preschool child’s nondisabled peers learn should be identified as that child’s presumptive least …
Plainly Offensive Babel: An Analytical Framework For Regulating Plainly Offensive Speech In Public Schools, Jerry C. Chiang
Plainly Offensive Babel: An Analytical Framework For Regulating Plainly Offensive Speech In Public Schools, Jerry C. Chiang
Washington Law Review
The First Amendment to the United States Constitution guarantees the right to free speech. The guarantee is not absolute, however, and the U.S. Supreme Court has said that the First Amendment does not fully protect student speech in public schools. In Bethel School District v. Fraser, the Court held that schools could regulate "plainly offensive" speech. Circuit courts have interpreted and applied Fraser in an inconsistent manner, disagreeing as to what constitutes plainly offensive speech. The resulting case law is confusing and fails to provide lower courts with a clear analytical framework for evaluating First Amendment challenges to regulations …
Freedom To Explore: Using The Eleventh Amendment To Liberate Researchers At State Universities From Liability For Intellectual Property Infringements, Gary Pulsinelli
Freedom To Explore: Using The Eleventh Amendment To Liberate Researchers At State Universities From Liability For Intellectual Property Infringements, Gary Pulsinelli
Washington Law Review
In its 1999 decision in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, the Supreme Court held that the Eleventh Amendment protected states from suit for patent infringement, effectively making state universities immune from intellectual property suits. This Article analyzes how the Florida Prepaid decision affects researchers at state universities, and how those researchers may avoid liability under existing law. It first concludes that researchers at state universities might still be subject to injunctions against future infringement. The Article next observes that individual researchers at state universities might also face personal liability for damages, but then suggests …
Freedom To Explore: Using The Eleventh Amendment To Liberate Researchers At State Universities From Liability For Intellectual Property Infringements, Gary Pulsinelli
Freedom To Explore: Using The Eleventh Amendment To Liberate Researchers At State Universities From Liability For Intellectual Property Infringements, Gary Pulsinelli
Washington Law Review
In its 1999 decision in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, the Supreme Court held that the Eleventh Amendment protected states from suit for patent infringement, effectively making state universities immune from intellectual property suits. This Article analyzes how the Florida Prepaid decision affects researchers at state universities, and how those researchers may avoid liability under existing law. It first concludes that researchers at state universities might still be subject to injunctions against future infringement. The Article next observes that individual researchers at state universities might also face personal liability for damages, but then suggests …
Plainly Offensive Babel: An Analytical Framework For Regulating Plainly Offensive Speech In Public Schools, Jerry C. Chiang
Plainly Offensive Babel: An Analytical Framework For Regulating Plainly Offensive Speech In Public Schools, Jerry C. Chiang
Washington Law Review
The First Amendment to the United States Constitution guarantees the right to free speech. The guarantee is not absolute, however, and the U.S. Supreme Court has said that the First Amendment does not fully protect student speech in public schools. In Bethel School District v. Fraser, the Court held that schools could regulate "plainly offensive" speech. Circuit courts have interpreted and applied Fraser in an inconsistent manner, disagreeing as to what constitutes plainly offensive speech. The resulting case law is confusing and fails to provide lower courts with a clear analytical framework for evaluating First Amendment challenges to regulations …
Separating Dick And Jane: Single-Sex Public Education Under The Washington State Equal Rights Amendment, Inessa Baram-Blackwell
Separating Dick And Jane: Single-Sex Public Education Under The Washington State Equal Rights Amendment, Inessa Baram-Blackwell
Washington Law Review
Single-sex education in public school systems has become increasingly popular in recent years. The Equal Rights Amendment to the Washington State Constitution (ERA) requires that males and females be treated equally where state action, such as public education, is involved. As demonstrated by the ERA's legislative history and Washington case law, the ERA prohibits differentiation on the basis of sex alone, which occurs where an individual would be treated differently in a given situation if that person were of the opposite sex. Legislative history and case law recognize two narrow exceptions to the ERA. Under the first exception, classification based …
Zero Privacy: Schools Are Violating Students' Fourteenth Amendment Right Of Privacy Under The Guise Of Enforcing Zero Tolerance Policies, Elisabeth Frost
Zero Privacy: Schools Are Violating Students' Fourteenth Amendment Right Of Privacy Under The Guise Of Enforcing Zero Tolerance Policies, Elisabeth Frost
Washington Law Review
The Fourteenth Amendment to the United States Constitution provides a right of privacy that protects against unwarranted governmental interference with an individual's contraceptive choices. This privacy right protects minors as well as adults. School officials serve as government actors for the purpose of Fourteenth Amendment analysis. Zero tolerance drug policies are school disciplinary policies that mandate predetermined and frequently severe consequences for specific offenses, often including the possession of legally prescribed or legally obtained over-the-counter medication. Zero tolerance drug policies have resulted in the often very public discipline of students for possessing a wide array of otherwise legal medication, including …
Does Free Exercise Mean Free State Funding? In Davey V. Locke, The Ninth Circuit Undervalued Washington's Vision Of Religious Liberty, Derek D. Green
Does Free Exercise Mean Free State Funding? In Davey V. Locke, The Ninth Circuit Undervalued Washington's Vision Of Religious Liberty, Derek D. Green
Washington Law Review
In Davey v. Locke, a panel of the United States Court of Appeals for the Ninth Circuit ruled that Washington violated the Free Exercise Clause by refusing to allow a scholarship recipient to use state funds to pursue a theology degree. The court held that the state's scholarship requirements facially discriminated against religion, and that the state's interest in not violating its constitution did not serve as a compelling reason for the discrimination. In so holding, the Davey court ignored Ninth Circuit precedent and embraced a theory of the Religion Clauses at odds with United States Supreme Court jurisprudence. …
Least Restrictive Environments: Assessing Classroom Placement Of Students With Disabilities Under The Idea, Sarah E. Farley
Least Restrictive Environments: Assessing Classroom Placement Of Students With Disabilities Under The Idea, Sarah E. Farley
Washington Law Review
The Individuals with Disabilities Education Act (IDEA) requires school districts to educate all students receiving special education in the "least restrictive environment" appropriate for each student's needs. This provision reflects Congress' preference that children with disabilities be educated alongside their non-disabled peers to the maximum extent possible. The U.S. Supreme Court has never determined how to test whether a school district has complied with this provision, so the federal circuits have developed several different tests. However, these circuit tests all arose prior to the most recent 1997 Amendments to the IDEA. This Comment explores the development and subsequent application of …
Lavine V. Blaine School District: Fear Silences Student Speech In The Ninth Circuit, Shannon M. Mcminimee
Lavine V. Blaine School District: Fear Silences Student Speech In The Ninth Circuit, Shannon M. Mcminimee
Washington Law Review
In LaVine v. Blaine School District, the Ninth Circuit allowed a school to expel a student for writing a poem about a school shooting. The court held that the school did not violate the student's First Amendment rights because the school could reasonably forecast that the student would cause a substantial disruption or material interference with school activities. This Note argues that the LaVine court incorrectly applied the established standards for evaluating the constitutionality of a school's decision to expel a student. The LaVine court also unwisely extended the Tinker doctrine to a new area of student speech. In …
Can Students Sue When Schools Don't Make The Grade? The Washington Assessment Of Student Learning And Educational Malpractice, Rebecca R. Glasgow
Can Students Sue When Schools Don't Make The Grade? The Washington Assessment Of Student Learning And Educational Malpractice, Rebecca R. Glasgow
Washington Law Review
Washington's Academic Achievement and Accountability Statute (AAA Statute) creates a statewide system of school accountability. It also requires that all students pass the tenth-grade level of the Washington Assessment of Student Learning standardized test (WASL) to receive a diploma. Unfortunately, when this graduation requirement takes effect in 2008, many students will not receive diplomas because they will be unable to pass the WASL before graduation. Some of these students will have met all local graduation requirements, so the only graduation requirement they will not be able to meet will be the statewide requirement that they pass the WASL. Their WASL …
A Study In Double Standards, Discipline, And The Disabled Student, Anne Proffitt Dupre
A Study In Double Standards, Discipline, And The Disabled Student, Anne Proffitt Dupre
Washington Law Review
School violence and other school discipline issues erode trust and confidence in our public schools and inhibit students from obtaining the education necessary to participate meaningfully in our nation's democratic and political institutions. This Article examines an issue of school law that appears almost insoluble-what one judge has called the "exquisitely difficult" issue of school discipline and the disabled student. The issue is governed by the Individuals with Disabilities Education Act (IDEA, enacted in 1975), which imposes significant constraints on school authorities who wish to discipline disruptive or violent disabled students. School officials have stated that IDEA left them powerless …
Disability And The Public Schools: The Case Against "Inclusion", Anne Proffitt Dupre
Disability And The Public Schools: The Case Against "Inclusion", Anne Proffitt Dupre
Washington Law Review
The Individuals with Disabilities Education Act (IDEA) requires states that wish to qualify for federal assistance to demonstrate that they have a policy ensuring all children with disabilities the right to a "free appropriate public education." IDEA also requires that disabled children be educated with nondisabled children "to the maximum extent appropriate." This Article focuses on the tension between IDEA's mandates for appropriate education and integration to the maximum extent appropriate. Advocates of full inclusion claim that, under IDEA, all disabled children-regardless of characteristics-must be placed in the general education classroom for the entire day. Many courts have tacitly accepted …
Charter Schools, Common Schools, And The Washington State Constitution, L.K. Beale
Charter Schools, Common Schools, And The Washington State Constitution, L.K. Beale
Washington Law Review
Early American political thinkers deemed universal education essential to the proper functioning of a republican form of government. Accordingly, each state developed a public school system supported by general taxation. The Washington Constitution requires the system to be both "general" and "uniform." Common schools, for which certain school funds are constitutionally reserved, are the most important and only mandatory component of the system. Recent charter school proposals raise questions as to whether such institutions fit within a general and uniform system and whether they are "common schools" entitled to common school funds. In order to provide a framework for such …
Missouri V. Jenkins And The De Facto Abandonment Of Court-Enforced Desegregation, Bradley W. Joondeph
Missouri V. Jenkins And The De Facto Abandonment Of Court-Enforced Desegregation, Bradley W. Joondeph
Washington Law Review
It has been forty-three years since the Supreme Court decided Brown v. Board of Education. In this Article, the author argues that the Court's recent decision, Missouri v. Jenkins, presages the end of court-enforced school desegregation. In addition, Jenkins shows that the Court is unwilling to confront its doctrinal principles in the area, preferring instead to base its decisions on relatively narrow, case-specific grounds. Jenkins therefore reveals that the Court will end this important era in our constitutional history quietly, gradually and without articulating its justifications. The author also contends that the reasons for curtailing desegregation remedies proffered …
Reinvigorating Educational Malpractice Claims: A Representational Focus, John G. Culhane
Reinvigorating Educational Malpractice Claims: A Representational Focus, John G. Culhane
Washington Law Review
For the past twenty tears, courts have faced a wide array of claims alleging misconduct by schools and their officials. These claims have involved diverse injuries, including: negligence in permitting functional illiterates to pass through the school system; negligent misdiagnosis of learning disabilities; and failure to deliver a promised package of educational skills and services. The judiciary has almost uniformly refused to allow recovery, in tort or otherwise, for such injuries. Some courts have conceded that, on the pleadings, a good case might be made out. Plaintiffs have nonetheless been turned away because of courts' related concerns with untrammeled litigation …
In Quest Of Brown's Promise: Social Research And Social Values In School Desegregation, Wallace D. Loh
In Quest Of Brown's Promise: Social Research And Social Values In School Desegregation, Wallace D. Loh
Washington Law Review
There is perhaps no better setting in which to discuss the role of social research in the courts than that of school desegregation. From its early, rural, southern beginnings in Brown to its present, urban, northern manifestation in the Detroit case of Milliken v. Bradley, empirical evidence has been used in the litigation. In 1954, the Supreme Court declared that "[s]eparate educational facilities are inherently unequal" and ruled that the separate-but-equal doctrine of Plessy v. Ferguson—which for half a century had legitimated Jim Crow legislation—had "no place" in the public schools. Eleanor Wolf, Professor of Sociology at Wayne State University, …
Constitutional Law—Equal Protection And The Neighborhood School Concept: The Demise Of The De Jure-De Facto Distinction—Seattle School District No. 1 V. Washington, 473 F. Supp. 996 (W.D. Wash. 1979), Appeal Docketed N. 79-4674 (9th Cir. Sept. 19, 1979), Dan M. Albertson
Washington Law Review
This note analyzes the district court's opinion in Seattle School District No. 1 v. Washington in the context of current doctrines in the field of school desegregation and concludes that the protected status previously accorded to the neighborhood concept6 will be substantially undermined if the Seattle decision is upheld on appeal
School Finance Litigation—The Styles Of Judicial Intervention, William R. Andersen
School Finance Litigation—The Styles Of Judicial Intervention, William R. Andersen
Washington Law Review
Current debates about the legality of public school funding systems recognize that existing systems combine state, local, and federal revenue sources. The exact nature of the governmental partnership involved is seldom specified, however, and the result is that the institutional relationships are not clearly seen. This failure of perception leads to difficulties when a court is asked to determine the constitutionality of such systems. Two recent state school finance opinions will be analyzed here to compare two different styles of judicial intervention. This article does not deal with all school finance litigation nor with all styles of judicial involvement in …
Collective Bargaining—Faculty Status Under The National Labor Relations Act—Nlrb V. Yeshiva University, 582 F.2d 686 (2d Cir. 1978), Cert. Granted, 99 S. Ct. 1212 (1979), James C. Howe
Washington Law Review
Supervisors and managerial employees were originally excluded from the NLRA's protections to solve problems caused by the unionization of decisionmakers working in the hierarchy of business organizations. Decisionmaking at Yeshiva, however, as in much of higher education, is organized on a non-hierarchical, collective basis. The Yeshiva court implicitly assumed, despite the University's non-hierarchial decisionmaking structure, that the policies underlying the exclusion of supervisors and managerial employees would be served by denying faculty the right to bargain collectively. This note tests that assumption. It examines the extent to which the purposes for excluding supervisory and managerial personnel from the NLRA's protections …
Beyond Bakke—The Use Of Noncognitive Factors In Professional School Admissions Decisionmaking, Catherine Wright Smith
Beyond Bakke—The Use Of Noncognitive Factors In Professional School Admissions Decisionmaking, Catherine Wright Smith
Washington Law Review
This comment suggests that professional schools constitutionally need not and, as a matter of policy, should not be deterred from considering at least some noncognitive criteria in admissions decisions. An exhaustive constitutional analysis of the standard of inquiry appropriate for each noncognitive criterion is not attempted. Instead, the comment shows in Part I that, regardless of the standard of scrutiny applied, any constitutional adjudication will involve some inquiry into the relationship between the school's articulated admissions goals and the admissions criteria used to implement them. The focus of the comment, then, is to analyze those goals that are typically advanced …
Civil Rights—Homosexual Teacher Dismissal: A Deviant Decision—Gaylord V. Tacoma School District No. 10, 88 Wn. 2d 286, 559 P.2d 1340, Cert. Denied, 98 S. Ct. 234 (1977), James H. Lowe
Washington Law Review
The facts culminating in James Gaylord's dismissal were undisputed. Gaylord had been a highly regarded public high school teacher for nearly twelve years when a student sought his counsel on several topics, including homosexuality. During their conversation the student formed the belief, not predicated upon any admission by Gaylord, that the teacher was homosexual. A year later he reported this belief to the vice-principal, who elicited Gaylord's confirmation of its accuracy. The school board promptly dismissed Gaylord on the ground of "immorality,"' because he had become a publicly known homosexual. There was no criticism of Gaylord's conduct toward any student …