Education Law Commons^™

A Class Action Lawsuit For The Right To A Minimum Education In Detroit, Carter G. Phillips

Northwestern Journal of Law & Social Policy

No abstract provided.

Equal Protection Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.

Education Reform And Detroit’S Right To Literacy Litigation, Kristine L. Bowman

Washington and Lee Law Review Online

Ongoing education reform litigation arising out of Detroit, Michigan presents an innovative claim: Children have an unenumerated federal constitutional right of access to literacy. On June 29, 2018, the district court granted defendants’ motion to dismiss. The case is now on appeal to the Sixth Circuit and is expected to be argued in the first half of 2019. This litigation has already broken new ground and, regardless of the ultimate outcome, it is valuable because it invites us to revisit fundamental questions about rights, remedies, and the role of courts in education reform.

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Articles

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …

Ensuring The Constitution Remains Color Blind Vs. Turning A Blind Eye To Justice: Equal Protection And Affirmative Action In University Admissions, Attashin Safari

Loyola of Los Angeles Law Review

No abstract provided.

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

Akron Law Review

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 jobs …

Citizenship Education And The Free Exercise Of Religion, Tyll Van Geel

Akron Law Review

Part One of this article provides a broad-brush overview of constitutional doctrine as it bears on citizenship education in the public schools. The remaining parts of the article focus on a Free Exercise challenge to the introduction of a Callaneseque program of citizenship education in a public school. Part Two thus explicates Callan’s theory. Part Three outlines my approach to the Free Exercise Clause. Part Four applies that approach to a challenge brought against a Callanesque program of citizenship education. Part Five takes up other possible rights-based limits on the education power and offers a suggestion regarding how citizenship education …

Thinking About The Constitution At The Cusp, Mark Tushnet

Akron Law Review

Marshall’s understanding that schools have an implicit curriculum might be a better guide to thinking about what we should teach about the Constitution in this century than any substantive points I might make. One controversial example may illustrate Marshall’s understanding: just as he asked what lesson would be taught by delaying desegregation, so we might ask, “What lesson will be taught about the nature of our constitutional community if we adopt a large-scale system of vouchers that parents can use to assist them in sending their children to non-public schools?” Such a system would demonstrate B and would teach our …

Education And The Constitution: Shaping Each Other & The Next Century, Elizabeth Reilly

Akron Law Review

In evaluating patients’ potential legal remedies, this Comment explores 1) the emergence of managed care organizations in the United States; 2) the creation of the Employee Retirement Income Security Act of 1974 (“ERISA”) and how it impacts patients’ claims against their MCOs; 3) the question of “quantity” versus “quality” in evaluating whether ERISA preemption exists; 4) three theories (direct liability, breach of fiduciary duty, and vicarious liability) used to hold MCOs liable for injuries resulting from malpractice or the wrongful denial of benefits; 5) state legislative attempts to circumvent ERISA’s inequitable preemption of claims; and 6) why, given ERISA’s failure …

Constitutional Issues Surrounding Student Possession And Use Of Cell Phones In Schools, Ralph Mawdsley, Charles Russo

Charles J. Russo

Constitutional challenges to limits on the possession and/ or use of cell phones in schools present potential claims involving the Fourth Amendment rights of students to privacy and to be free from unreasonable searchesalong with parental Fourteenth Amendment Liberty Clauserights to direct the education and upbringing of their children. However, as reflected in this article, as long as educational officials enact policies in line with state laws that are explicitly designed to enhance school safety, challenges filed by students and their parents are probably destined to fail because constitutional claims are likely to be outweighed by concerns for the greater …

Beyond The Schoolhouse Gates: The Unprecedented Expansion Of School Surveillance Authority Under Cyberbulling Laws, Emily Suski

Faculty Publications

For several years, states have grappled with the problem of cyberbullying and its sometimes devastating effects. Because cyberbullying often occurs between students, most states have understandably looked to schools to help address the problem. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. This solution seems all to the good unless a close examination of the cyberbullying laws and their implications is made. This Article explores some of the problematic implications of the cyberbullying laws. More specifically, it focuses on how the cyberbullying laws allow schools unprecedented surveillance authority over students. This …

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, rather …

Nevada Public Policy And Higher Education: The Roles Of The Legislature And The Board Of Regents Under The Nevada Constitution, Thomas B. Mcaffee, Justin James Mcaffee

Nevada Law Journal

No abstract provided.

Universities As Constitutional Law Makers (And Other Hidden Actors In Our Constitutional Orders), Adam J. Macleod

Faculty Articles

In the stories told by opinion makers and many law professors, American constitutional law is concerned with two things-individual rights and the powers of government-and it is settled by the Court, which was established by Article III of our national Constitution. In those now-familiar tales, the United States Supreme Court creates constitutional law when heroic individuals assert their fundamental rights against an overreaching state and when Congress, state legislatures, and executive agencies are called upon to justify their expert enactments to an overreaching judiciary. To settle these constitutional disputes the Court looks either to the text of the written Constitution …

Do California’S Teacher Tenure Laws Violate California’S Constitutional Right To Education, Allen W. Hubsch

Allen W Hubsch

The accompanying note addresses an important and topical issue. In May 2012, Ted Olson, the former Solicitor General of the United States, and Theodore Boutrous, co-chair of the appellate practice at Gibson Dunn & Crutcher, filed a complaint in Los Angeles Superior Court, entitled Vargara v. California, naming the State of California, the California Department of Education, the Los Angeles Unified School District and others as defendants.

The complaint alleges that California’s teacher tenure statutes are unconstitutional under the California constitution because such laws have the effect of preventing school districts from providing a quality education to school age …

North Carolina’S Superintendent Of Public Instruction: Defining A Constitutional Office, Andrew P. Owens

Andrew P. Owens

In 2009 a superior court case determined the fate of the Governor’s initiative to streamline education leadership by promoting a State Board of Education member while greatly reducing the Superintendent of Public Instruction’s powers. The judge’s decision in favor of Superintendent Atkinson turned on “the inherent constitutional authority” of her office; yet no one really knows what authority is inherent to the office, where that authority derives, or how to go about analyzing the office’s constitutional role. In short: what does it mean to be the Superintendent of Public Instruction? This paper explains the origins and meaning of the Superintendent …

Government's Denigration Of Religion: Is God The Victim Of Discrimination In Our Public Schools?, Michael R. O'Neill

Pepperdine Law Review

No abstract provided.

State Action And The Supreme Court's Emerging Consensus On The Line Between Establishment And Private Religious Expression, Michael W. Mcconnell

Pepperdine Law Review

No abstract provided.

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 a …

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 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, I argue that …

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 held …

Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise

Seattle University Law Review

The full extent of what the Court decided in Grutter and Parents Involved remains in some dispute. What is far more certain is that both cases continue to stir deeply held passions that help frame public and legal debates about the Court and its role in affirmative action and school desegregation disputes. Amid these increasingly raucous debates, this Article expressly side steps the many questions (and controversies) about what the Court decided in those cases and seeks to escape from the frequently politically charged and volatile context of governmental uses of race. This Article instead focuses on how the Court …

Solving The Parents Involved Paradox, Lino A. Graglia

Seattle University Law Review

The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District No. 1 (Parents Involved) presents the seeming paradox that the Constitution can on one day require a school district to take drastic measures, including busing students across a giant school district to increase racial integration in schools, and then prohibit school districts from taking even the mildest measures, such as using race as a tie-breaker in making student assignments, on the next. How, a rational observer must wonder, can this be possible? The answer is that, as usual in the making of “constitutional law,” the Constitution …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

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, the …

Lawrence V. Texas Overrules San Antonio School District. V. Rodriguez, John H. Ryskamp

ExpressO

San Antonio School District v. Rodriguez used the scrutiny regime to decide whether there was an Equal Protection right to housing. However, Lawrence v. Texas abolished the scrutiny regime. So how do we evaluate whether there is an education right under Equal Protection? The right to education in the Texas Constitution shows us that we use the liberty Equal Protection right to determine if state laws are essential to education; this is the meaning of Lawrence's rule that laws are not permitted respecting liberty which do not "substantially further a legitimate state interest." Note that this takes substantially from intermediate …

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is …

Finding The Constitutional Right To Education In San Antonio School District V. Rodriguez, John H. Ryskamp

ExpressO

In Lawrence v. Texas, the Supreme Court abolished the scrutiny regime because it impermissibly interfered with an important fact, liberty. And yet, even in earlier cases which ostensibly upheld the scrutiny regime, it is difficult to see that the Court ever did so to the detriment of facts it considered important. In short, the Court often (always?) found itself raising the level of scrutiny for a fact in the same case it upheld the regime, leaving us to wonder if the scrutiny regime ever actually had any effect at all, or even whether the Court felt it was relevant. As …

Jon Newman’S Theory Of Disparagement And The First Amendment In The Administrative State, Edward L. Rubin

NYLS Law Review

No abstract provided.