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Brief Of Amicus Curiae Children’S Law Clinic At Duke Law School Advocates For Children’S Services Of Legal Aid Of North Carolina Public Schools First Nc, Jane R. Wettach, Peggy Nicholson, K. Ricky Watson Jr., Celia Pistolis, Aisha Forte, Jennifer Story, Kevin Zhao Jan 2017

Brief Of Amicus Curiae Children’S Law Clinic At Duke Law School Advocates For Children’S Services Of Legal Aid Of North Carolina Public Schools First Nc, Jane R. Wettach, Peggy Nicholson, K. Ricky Watson Jr., Celia Pistolis, Aisha Forte, Jennifer Story, Kevin Zhao

Faculty Scholarship

No abstract provided.


The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer Jan 2016

The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer

Faculty Scholarship at Penn Law

With Justice Scalia gone, and Justices Ginsburg and Kennedy in their late seventies, there is the possibility of significant movement on the Supreme Court in the next several years. A two-justice shift could upend almost any area of constitutional law, but the possible movement in race-based equal protection jurisprudence provides a particularly revealing window into the larger trends at work. In the battle over equal protection, two strongly opposed visions of the Constitution contend against each other, and a change in the Court’s composition may determine the outcome of that struggle. In this essay, we set out the current ...


A Benign Prior Restraint Rule For Public School Classroom Speech, Scott R. Bauries Nov 2015

A Benign Prior Restraint Rule For Public School Classroom Speech, Scott R. Bauries

Law Faculty Scholarly Articles

This Article is a contribution to a symposium on schools and free speech. It advances the claim that the First Amendment doctrines that apply to the classroom should adopt a benign prior restraint rule. In the case of teacher classroom speech, the Garcetti rule should apply where the government’s action in interfering with the speech constitutes a prior restraint—the First Amendment should not reach such interference. In cases where a teacher first speaks and then is later punished for that speech, however, basic notions of due process and the dangers of arbitrary governmental decision making are far more ...


Student Press Exceptionalism, Sonja R. West Jan 2015

Student Press Exceptionalism, Sonja R. West

Scholarly Works

Constitutional protection for student speakers is an issue that has been hotly contested for almost 50 years. Several commentators have made powerful arguments that theCourt has failed to sufficiently protect the First Amendment rights of all students. But this debate has overlooked an even more troubling reality about the current state ofexpressive protection for student — the especially harmful effect of the Court’s precedents on student journalists. Under the Court’s jurisprudence, schools may regulate with far greater breadth and ease the speech of student journalists than of their non-press classmates. Schools are essentially free to censor the student press ...


A Common Law Constitutionalism For The Right To Education, Scott R. Bauries Jul 2014

A Common Law Constitutionalism For The Right To Education, Scott R. Bauries

Law Faculty Scholarly Articles

This Article makes two claims, one descriptive and the other normative. The descriptive claim is that individual rights to education have not been realized under state constitutions because the currently dominant structure of education reform litigation prevents such realization. In state constitutional education clause claims, both pleadings and adjudication generally focus on the equality or adequacy of the system as a whole, rather than on any particular student's educational resources or attainment. The Article traces the roots of the currently dominant systemic approach, and finds these roots in federal institutional reform litigation. This systemic focus leads to a systemic ...


Freedom From Ignorance: The International Duty To Provide Public Education, Areto A. Imoukhuede Jan 2013

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 ...


American School Finance Litigation And The Right To Education In South Africa, Scott R. Bauries Jan 2012

American School Finance Litigation And The Right To Education In South Africa, Scott R. Bauries

Law Faculty Scholarly Articles

This paper addresses the South African Constitution's invitation to the Constitutional Court to 'consider foreign law' when interpreting its provisions. Focusing on the education provisions found in section 29 of the Constitution, I make two claims. Firstly, contrary to the developing consensus, American state supreme court jurisprudence in school funding cases makes a poor resource to aid the interpretation of the basic South African right to education, regardless of the quantum of education that the Constitutional Court decides is encompassed by the word 'basic'. Secondly, however, certain aspects of these same American decisions, particularly the space they provide for ...


The Education Duty, Scott R. Bauries Jan 2012

The Education Duty, Scott R. Bauries

Law Faculty Scholarly Articles

A constitution is an instrument of entrustment. By adopting a democratic constitution, a polity places in the hands of its elected representatives its trust that those representatives will act to pursue the ends of the polity, rather than their own ends, and that they will do so with an eye toward the effects of adopted policies. In effect, the polity entrusts lawmaking power to its legislature with the expectation that such power will be exercised with loyalty to the public and with due care for its interests. Simply put, legislatures are fiduciaries.

In this Article, I examine the nature of ...


State Constitutions And Individual Rights: Conceptual Convergence In School Finance Litigation, Scott R. Bauries Jan 2011

State Constitutions And Individual Rights: Conceptual Convergence In School Finance Litigation, Scott R. Bauries

Law Faculty Scholarly Articles

This Article begins by reviewing Wesley Newcomb Hohfeld's “fundamental conceptions” and expanding his theory to the arena of state constitutional rights, building on recent work by other scholars. From this foundation, it moves to a discussion of the sources of rights to education. The Article then examines the text of relevant state constitutional provisions, as well as the ever-changing landscape of school finance litigation, the principal vehicle through which litigants assert constitutional claims based on ostensible education rights. Next, it systematically analyzes the population of reported cases from the highest state courts to identify Hohfeldian conceptions of education rights ...


State Constitutional Design And Education Reform: Process Specification In Louisiana, Scott R. Bauries Jan 2011

State Constitutional Design And Education Reform: Process Specification In Louisiana, Scott R. Bauries

Law Faculty Scholarly Articles

As to education, the Louisiana Constitution contains the familiar general mandate for the establishment of a public school system, now ubiquitous among state constitutions. But unlike the founding documents of any of the other states, Louisiana's constitution also provides for a very specific process-based allocation of the responsibilities for determining appropriations levels in education from year to year.

It is well-known that state constitutions often treat numerous—sometimes trivial—subjects, or contain provisions that seem hyper-specific and statutory, rather than foundational and constitutional, and state constitutions have been roundly criticized (and sometimes defended) for these features. In this Article ...


The Fifth Freedom: The Constitutional Duty To Provide Public Education, Areto Imoukhuede Jan 2011

The Fifth Freedom: The Constitutional Duty To Provide Public Education, Areto Imoukhuede

Faculty Scholarship

“The fifth freedom is freedom from ignorance. It means that every[one], everywhere, should be free to develop his [or her] talents to their full potential – unhampered by arbitrary barriers of race or birth or income.” Lyndon B. Johnson This article argues that education is a fundamental human right that the U.S. Supreme Court has failed to recognize because of the Court’s bias towards negative, rather than positive rights. Viewed from the limited perspective of rights as liberties, the concern with declaring a fundamental right to education is that education legislation would be strictly scrutinized, thus causing the ...


Imaginary Threats To Government's Expressive Interests, Helen Norton Jan 2011

Imaginary Threats To Government's Expressive Interests, Helen Norton

Articles

The Supreme Court’s emerging government speech doctrine permits the government to refuse to allow other parties to join, and thus change or distort, its own message. In this way, the government speech doctrine appropriately protects government’s legitimate – and valuable – expressive interests by providing a defense to free speech clause claims by private speakers who seek to compel the government to deliver their own views. Too often, however, governmental bodies are asserting their own expressive interests to claim – and some courts are permitting them to exercise – the power to punish private parties’ speech that does not threaten the government ...


Not Very Collegial: Exploring Bans On Illegal Immigrant Admissions To State Colleges And Universities, Marcia A. Yablon-Zug, Danielle R. Holley-Walker Apr 2009

Not Very Collegial: Exploring Bans On Illegal Immigrant Admissions To State Colleges And Universities, Marcia A. Yablon-Zug, Danielle R. Holley-Walker

Faculty Publications

No abstract provided.


Sanctionable Conduct: How The Supreme Court Stealthily Opened The Schoolhouse Gate, Sonja R. West Apr 2008

Sanctionable Conduct: How The Supreme Court Stealthily Opened The Schoolhouse Gate, Sonja R. West

Scholarly Works

The Supreme Court's decision in Morse v. Frederick signaled that public school authority over student expression extends beyond the schoolhouse gate. This authority may extend to any activity in which a student participates that the school has officially sanctioned. The author argues that this decision is unsupported by precedent, and could encourage schools to sanction more events in the future. Because the Court failed to limit or define the power of a school to sanction an activity, the decision could have a chilling effect on even protected student expression. The author commends the Court for taking up this issue ...


Introducing The Law Of Nonprofit Organizations And Philanthropy, David A. Brennen Jan 2007

Introducing The Law Of Nonprofit Organizations And Philanthropy, David A. Brennen

Law Faculty Scholarly Articles

On January 5,2007, the Nonprofit and Philanthropy Law Section of AALS held its first program at the AALS Annual Meeting in Washington, D.C. The program, entitled "State-Level Legal Reform of the Law of Nonprofit Organizations," was a fitting way to launch what should prove to be a valuable contribution to the study of law relating to nonprofit organizations and philanthropy. This burgeoning area of academic legal study is well poised to grow by leaps and bounds in the coming years due to its impact on many traditional areas of legal study, including tax law, corporate law, estate law ...


Florida’S Past And Future Roles In Education Finance Reform Litigation, Scott R. Bauries Jul 2006

Florida’S Past And Future Roles In Education Finance Reform Litigation, Scott R. Bauries

Law Faculty Scholarly Articles

In federalist parlance, the states often are called laboratories of democracy. Nowhere is this truer than in the field of education, and almost no subset of the education field lends itself to this label more than education finance. Since 1973, with very few notable exceptions, the entire development of the practice of education finance has proceeded through state-specific reforms. These reforms have occurred mostly through legislative policymaking, but the courts have played an important role in directing that policy development.

If one were to seek to observe one of these laboratories in action—to witness the interaction of the courts ...


A Local Distinction: State Education Privacy Laws For Public Schoolchildren, Susan P. Stuart Jan 2006

A Local Distinction: State Education Privacy Laws For Public Schoolchildren, Susan P. Stuart

Law Faculty Publications

No abstract provided.


Lex-Praxis Of Education Informational Privacy For Public Schoolchildren, Susan P. Stuart Jan 2006

Lex-Praxis Of Education Informational Privacy For Public Schoolchildren, Susan P. Stuart

Law Faculty Publications

No abstract provided.


Constitutional Academic Freedom After Grutter: Getting Real About The "Four Freedoms" Of A University, J. Peter Byrne Jan 2006

Constitutional Academic Freedom After Grutter: Getting Real About The "Four Freedoms" Of A University, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in Grutter v. Bollinger represents a high-water mark for the recognition and influence of constitutional academic freedom. The Court there relied, gingerly perhaps, on constitutional academic freedom, understood as some autonomy for university decision making on matters of core academic concern, to provide a compelling interest adequate to uphold flexible racial preferences in university admissions. Now that the dust has settled from direct import of the decision for affirmative action in admissions, it is important to consider what role constitutional academic freedom, as a working constitutional doctrine, should or may play within current disputes about ...


A Response To Goodwin Liu, Robin West Jan 2006

A Response To Goodwin Liu, Robin West

Georgetown Law Faculty Publications and Other Works

Professor Liu's article convincingly shows that the Fourteenth Amendment can be read, and has been read in the past, to confer a positive right on all citizens to a high-quality public education and to place a correlative duty on the legislative branches of both state and federal government to provide for that education. Specifically, the United States Congress has an obligation under the Fourteenth Amendment's Citizenship Clause, Liu argues, to ensure that the public education provided by states meets minimal standards so that citizens possess the competencies requisite to meaningful participation in civic life. Liu's argument is ...


Stepping Through Grutter'S Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen L. Norton Oct 2005

Stepping Through Grutter'S Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen L. Norton

Faculty Scholarship

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling -- specifically, a public law school’s interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well. The switch to instrumental justifications for affirmative action appears a strategic response to the Court’s narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning ...


Stepping Through Grutter's Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen Norton Jan 2005

Stepping Through Grutter's Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen Norton

Articles

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling - specifically, a public law school's interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well.

The switch to instrumental justifications for affirmative action appears a strategic response to the Court's narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning ...


Fun With Dick And Jane And Lawrence: A Primer On Education Privacy As Constitutional Liberty, Susan P. Stuart Jan 2004

Fun With Dick And Jane And Lawrence: A Primer On Education Privacy As Constitutional Liberty, Susan P. Stuart

Law Faculty Publications

No abstract provided.


Why A Fundamental Right To A Quality Education Is Not Enough, James G. Wilson Jan 2000

Why A Fundamental Right To A Quality Education Is Not Enough, James G. Wilson

Law Faculty Articles and Essays

This article relies upon the political and economic analysis of such great thinkers as Aristotle and Rousseau to understand and normatively evaluate constitutional caselaw in general and education cases in particular. The article's title contains its conclusion: a judicially created right to a quality education is a laudable, but possibly counterproductive and definitely insufficient condition, for creating a humane constitutional system. The rest of society needs to do far more to protect the average citizen and worker from the ever-ravenous ruling class. All the edification in the world will not mean much if there are only a few decent ...


Subtracting Sexism From The Classroom: Law And Policy In The Debate Over All-Female Math And Science Classes In Public Schools, Carolyn B. Ramsey Jan 1998

Subtracting Sexism From The Classroom: Law And Policy In The Debate Over All-Female Math And Science Classes In Public Schools, Carolyn B. Ramsey

Articles

No abstract provided.


Forty Years In The Desert, Paul F. Campos Jan 1995

Forty Years In The Desert, Paul F. Campos

Articles

The author uses Brown v. Board of Education and the volumes of commentary it has provoked to illustrate that coherent constitutional interpretation is a useless exercise. He argues that the decision should be accepted as political reality and moral necessity and that we should cease debating its merit as constitutional interpretation.


What's Quality Got To Do With It?: Constitutional Theory, Politics, And Education Reform, Phil Weiser Jan 1995

What's Quality Got To Do With It?: Constitutional Theory, Politics, And Education Reform, Phil Weiser

Articles

No abstract provided.


First Amendment Restrictions On Title I Programs In Private Schools, Laura Gaston Dooley Jan 1986

First Amendment Restrictions On Title I Programs In Private Schools, Laura Gaston Dooley

Law Faculty Publications

No abstract provided.


Does Mississippi's System For Financing Public Schools From "School Lands" Violate Federal Law?, Richard B. Collins Jan 1986

Does Mississippi's System For Financing Public Schools From "School Lands" Violate Federal Law?, Richard B. Collins

Articles

No abstract provided.


Board Of Education Of The Hendrick Hudson Central School District, Westchester County V. Rowley, Lewis F. Powell Jr. Oct 1981

Board Of Education Of The Hendrick Hudson Central School District, Westchester County V. Rowley, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.