Law Commons^™

Religious Schooling And Homeschooling Before And After Hobby Lobby, James G. Dwyer

Faculty Publications

The most serious incursions on religious liberty in America today are being inflicted on children by parents and private school operators through power the State has given them. This Article examines the potential effect of the Court’s Hobby Lobby decision on interpreting the Religious Freedom Restoration Act (“RFRA”) on both federal and state levels, detailing why the Court’s decision is irrelevant to addressing the incursions on liberty experienced by children subject to religious and home schooling.

Ultimately, the Article finds that home schools and private schools are unfazed by the Hobby Lobby decision in their capacities as employers and educators …

The Constitutional Challenge To Teacher Tenure, Derek W. Black

Faculty Publications

In 2012, education reformers theorized a novel constitutional strategy to eliminate tenure. They argued that tenure leads to the retention of ineffective teachers, and that ineffective teaching deprives students of the constitutional right to education embedded in state constitutions. This theory immediately caught hold, with a California trial court striking down tenure in 2014 and litigation commencing in other states weeks thereafter.

The outcome of this litigation movement will determine both the future of the teaching profession and the scope of the constitutional right to education. To date, however, no high court or scholar has thoroughly analyzed the theory. This …

Reforming School Discipline, Derek Black

Faculty Publications

Public schools suspend millions of students each year, but only five percent of suspensions are for serious misbehavior. School leaders argue that these suspensions ensure an orderly educational environment for those students who remain. Social science demonstrates the opposite. The practice of regularly suspending students negatively affects misbehaving students as well as innocent bystanders. All things being equal, schools that manage student behavior through means other than suspension produce the highest achieving students. In this respect, the quality of education a school provides is closely connected to its discipline policies.

Drawing on the connection between discipline and educational quality, this …

Taking Teacher Quality Seriously, Derek W. Black

Faculty Publications

Although access to quality teachers is one of the most important aspects of a quality education, explicit concern with teacher quality has been conspicuously absent from past litigation over the right to education. Instead, past litigation has focused almost exclusively on funding. Though that litigation has narrowed gross fundinggaps between schools in many states, it has not changed what matters most: access to quality teachers.

This Article proposes a break from the traditional approach to litigating the constitutional right to education. Rather than constitutionalizing adequate or equal funding, courts should constitutionalize quality teaching. The recent success of the constitutional challenge …

Expanding The Schoolhouse Gate: Public Schools (K-12) And The Regulation Of Cyberbullying, Philip Lee

Faculty Publications

(Excerpt)

In a tragic case that received international attention, 15-year-old Phoebe Prince killed herself after being bullied—both physically and online—by some of her classmates. Phoebe had moved to Massachusetts from a small town in Ireland, enrolling as a freshman at South Hadley High School. After a brief relationship with a popular boy in the senior class, the taunting by her classmates began. Some students called her an “Irish slut” and a “whore,” knocked things out of her hands, and sent her threatening texts. Some of the students used Facebook and Twitter to speak badly about her. Phoebe suffered this treatment …