Education Law Commons^™

Quiet Encroachments On School Prayer Jurisprudence, Amanda Harmony Cooley

West Virginia Law Review

No abstract provided.

The Worst Choice For School Choice: Tuition Tax Credits Are A Bad Idea And Direct Funding Is Wiser, Michael J. Broyde, Anna G. Gabianelli

Faculty Articles

School choice is on the rise, and states use various mechanisms to implement it. One prevalent mechanism is also a uniquely problematic one: the tax credit. Tax credits are deficient at equitably distributing a benefit like school choice; they are costly, and they invite fraud. Instead of using tax credits, states opting for school choice programs should use direct funding. Direct funding will more efficiently achieve the goals of school choice because it can be regulated like any other government benefit, even if it ends up subsidizing religious private schools.

Tax credits’ prevalence is not inexplicable, of course. It is …

Solidifying Students' Right To Gender Expression, Scott Skinner-Thompson

Publications

No abstract provided.

Education, The First Amendment, And The Constitution, Erwin Chemerinsky

University of Cincinnati Law Review

No abstract provided.

Reconciling Self-Censorship: A Qualitative Study Of The Experiences Of University Staff And Administrators, Leigh C. Morales

Doctoral Dissertations

In addition to a global pandemic, the past three years have been marked by racial, social, and political unrest. These circumstances add meaningful context to examine and better understand factors that undermine free expression and contribute to self-censorship among university staff and administrators. To date, few studies have holistically explored the unique experiences of university staff and administrators with self-censorship and how this phenomenon affects their experience on college and university campuses. Understanding why staff and administrators choose to self-censor may allow for a deeper discussion about speech climate and the degree to which colleges and universities implement and uphold …

Can't Really Teach: Crt Bans Impose Upon Teachers' First Amendment Pedagogical Rights, Mary L. Krebs

Vanderbilt Law Review

The jurisprudence governing K-12 teachers’ speech protection has been a convoluted hodgepodge of caselaw since the 1960s when the Supreme Court established that teachers retain at least some First Amendment protection as public educators. Now, as new so-called Critical Race Theory bans prohibit an array of hot button topics in the classroom, K-12 teachers must either preemptively censor themselves or risk running afoul of these vague bans with indeterminate legal protection. This Note proposes an elucidation of K-12 teachers’ free speech rights via a two-part test to assess the reasonability of instructional speech. Rather than analogizing K-12 teacher speech to …

Free Speech, Social Media, And Public Universities: How The First Amendment Limits University Sanctions For Online Expression And Empowers Students, Staff, And Faculty, Eric T. Kasper

Mitchell Hamline Law Review

No abstract provided.

In The Name Of Diversity: Why Mandatory Diversity Statements Violate The First Amendment And Reduce Intellectual Diversity In Academia, Daniel M. Ortner

Catholic University Law Review

In the 1950s and 1960s in many parts of the country, a professor could be fired or never hired if he refused to denounce communism or declare loyalty to the United States Constitution. The University of California system took the lead in enforcing these loyalty oaths. These loyalty oaths were challenged all the way up to the United States Supreme Court and were soundly rejected, establishing the centrality of academic freedom and open inquiry on the university campus. So why are loyalty oaths making their resurgence in the form of mandatory diversity statements? Universities have begun requiring faculty members to …

Campus Free Speech In The Mirror Of Rising Anti-Semitism, Harry G. Hutchison

St. Mary's Law Journal

Abstract forthcoming.

Is Free Speech An Academic Value? Is Academic Freedom A Constitutional Value?, Daniel Gordon

FIU Law Review

No abstract provided.

Private Schools' Role And Rights In Setting Vaccination Policy: A Constitutional And Statutory Puzzle, Hillel Y. Levin

Scholarly Works

Measles and other vaccine-preventable childhood diseases are making a comeback, as a growing number of parents are electing not to vaccinate their children. May private schools refuse admission to these students? This deceptively simple question raises complex issues of First Amendment law and statutory interpretation, and it also has implications for other current hot-button issues in constitutional law, including whether private schools may discriminate against LGBTQ students. This Article is the first to address the issue of private schools’ rights to exclude unvaccinated children. It finds that the answer is “it depends.” It also offers a model law that states …

Tinkering With Circuit Conflicts Beyond The Schoolhouse Gate, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

When Legislatures Become The Ally Of Academic Freedom: The First State Intellectual Diversity Statute And Its Effect On Academic Freedom, Patrick M. Garry

South Carolina Law Review

No abstract provided.

No Place For Speech Zones: How Colleges Engage In Expressive Gerrymandering, A. Celia Howard

Georgia State University Law Review

This note takes a critical look at the shortcomings of the current tests applied to speech zone litigation as well as the constitutional violations that occur when public schools carve out speech areas. Part I examines the evolution of First Amendment law in education, with a focus on university free speech zones. Part II analyzes the convoluted First Amendment jurisprudence, suggesting that the time, place, and manner test, typically used in conjunction with a forum analysis when examining the constitutionality of speech zones, allows universities to practice what is known as “expressive gerrymandering.” Finally, Part III proposes that courts eliminate …

Speech Across Borders, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

As both governments and tech companies seek to regulate speech online, these efforts raise critical, and contested, questions about how far those regulations can and should extend. Is it enough to take down or delink material in a geographically segmented way? Or can and should tech companies be ordered to takedown or delink unsavory content across their entire platforms—no matter who is posting the material or where the unwanted content is viewed? How do we deal with conflicting speech norms across borders? And how do we protect against the most censor-prone nation effectively setting global speech rules? These questions were …

"Tinkering" With Student Rights: School Walkouts And The Implications Of Discipline Practice And Policy On Students' Right To Protest, Hannah Weissler

Scripps Senior Theses

In this study, I examine the extent to which students’ rights to free speech and expression were violated in response to the nationwide school walkouts that took place during the spring of 2018. Students hold the right to political speech and expression under the landmark Supreme Court Case, Tinker v. Des Moines (1969). However, the rights students maintain to participate in protest during school hours is somewhat unclear. Using a two-pronged case study analysis, I explore the question of student rights and potential violations in the face of protest through examining school disciplinary responses alongside disciplinary policy and disciplinary policy …

The Purpose (And Limits) Of The University, John Inazu

Utah Law Review

Scholars of the university have produced volumes about growing pressures on the coherence and purpose of institutions of higher education. Meanwhile, legal scholars’ writing about the university has typically focused on its First Amendment dimensions. This Article links insights from these two groups of scholars to explore the purpose of the university and defend it against increasing technological, ideological, and cultural pressures. It argues that a better understanding of the relationship between the First Amendment and the university can help strengthen the coherence of the university’s purpose against these pressures. The connection between the First Amendment and institutional purpose is …

Sb 339 - Education, Daniel F. Barrett, Alexander Hegner

Georgia State University Law Review

The Act amends the statutes in the Georgia Code applicable to the University System and Board of Regents statutes in the Georgia Code. It adds new sections that place affirmative requirements on the Board of Regents to adopt and publish new policies, which aim to encourage the dissemination of free speech across university campuses. Further, the Act directs that universities must implement disciplinary sanctions for anyone subject to the jurisdiction of the University System who interferes with the free speech of invited speakers and others on campus. Finally, the Board of Regents must publish annual reports regarding any barriers to …

Laying Siege To The Ivory Tower: Resource Allocation In Response To The Heckler's Veto On University Campuses, Macklin W. Thornton

San Diego Law Review

High in the towers of academia, the lofty ideals of free speech are tossed around with a deceptive ease. However, as legal minds grapple with heady legal doctrines, free speech has concrete consequences down at the foot of those towers. At this ivory base, the property line between the university and the community blur. Students and nonstudents assemble and deliver conflicting speech that, at times, foments violence. Molotov cocktails, gun shots, broken windows, disgruntled students. All attempts to trigger the dreaded heckler’s veto—an attempt the government has an obligation to prevent. In addition to the public relations disasters grown from …

Culture Wars On Campus: Academic Freedom, The First Amendment, And Partisan Outrage In Polarized Times, Jason M. Shepard, Kathleen B. Culver

San Diego Law Review

After a California community college professor called the election of President Donald Trump an “act of terrorism” in her classroom the week after the vote, a student-recorded viral video sparked a national conservative media firestorm. Critics said the professor should be fired for outrageous liberal bias, while supporters defended her comments as being protected by academic freedom and the First Amendment. The student, meanwhile, was suspended for his unauthorized recording while defenders decried his punishment as evidence of anti-conservative discrimination and harassment. By examining tensions between faculty and student speech rights, the use of technologies to take ideological disagreements viral …

Professional Standards And The First Amendment In Higher Education: When Institutional Academic Freedom Collides With Student Speech Rights, Clay Calvert

St. John's Law Review

(Excerpt)

Using the decisions in Keefe, Oyama and Tatro as analytical springboards, this Article examines rising tensions between institutional academic freedom and the First Amendment speech rights of college students. Specifically, the friction addressed here occurs when universities enforce external professional standards on students within their curricula. Initially, Part I provides a primer on institutional academic freedom. Part II then contrasts the vastly deferential Hazelwood approach to professional-standards disputes embraced by the Eighth Circuit in Keefe with the somewhat more rigorous ones adopted by the Ninth Circuit in Oyama and Minnesota’s Supreme Court in Tatro.

Part III then …

Student Protests And Academic Freedom In An Age Of #Blacklivesmatter, Philip Lee

Journal Articles

Student activism for racial equity and inclusion is on a historic rise on college and university campuses across the country. Students are reminding us that Black lives matter. They are bringing attention to the ways in which the normal operation of the legal system creates racial and other inequalities. They are critiquing the ways in which their experiences and perspectives are pushed to the margins in classrooms, on campuses, and in society.

In urging for university policies that allow for such activism to be moments of teaching and learning for all involved, I argue in this Article that student academic …

An Examination Of The Instruction Of Religion Clause Issues In Massachusetts Teacher Education Programs, Matthew E. Henry

Educational Studies Dissertations

The prevailing research, as well as reported complaints of academic, civic, personal, and social harm, indicates that public school teachers do not exhibit the professional knowledge, skills, and attitudes grounded in the religion clauses of the U.S. Constitution. This study investigated how TEPs in the Commonwealth of Massachusetts document their instruction of preservice teachers on religion clause issues as they apply to grade 6-12 content area pedagogy, curriculum, and professional ethos. The institutional documents presented to preservice teachers were collected from four teacher education programs in the Commonwealth. An evaluation tool— synthesized from the leading scholarship and research on the …

The State Response To Hazelwood V. Kuhlmeier, Tyler J. Buller

Maine Law Review

It’s hard to predict what an average member of the public thinks when he or she hears the words “student newspaper.” Opinions vary. This Article goes beyond that public perception and demonstrates that student journalists across the country are doing work that matters. Student reporters uncover corruption, help hold government officials accountable to taxpayers and the public, and bring to light important issues that would otherwise go unreported. They allow students to develop academically, professionally, and socially. And they give a voice to developing citizens who are often disenfranchised from voting, holding elected office, or otherwise participating in politics and …

A First Amendment Deference Approach For Reforming Anti-Bullying Laws, Emily Suski

Faculty Publications

This Article examines the anti-bullying laws and their response to the problem of bullying in light of both the nature of the problem itself, the interventions the laws call for, and the laws’ First Amendment implications. Bullying has many varied, negative consequences, some tragic, and is widespread. Yet, the anti-bullying laws disproportionately focus schools’ responses to bullying on school exclusion, meaning suspending, expelling or otherwise excluding students who bully from school. This is so even though social science literature has found school exclusion ineffective and sometimes counterproductive as a method for addressing bullying. What is more, because much of bullying …

Keynote Address, Justice John Paul Stevens (Ret.)

University of Miami Law Review

No abstract provided.

Common Schools And The Common Good: Reflections On The School-Choice Debate, Richard W. Garnett

Richard W Garnett

No abstract provided.

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

Journal Articles

Cyberbullying has received increasing societal attention in the aftermath of the tragic suicides of some of its youngest and most vulnerable victims — 15-year-old Phoebe Prince from Massachusetts, 13-year-old Ryan Halligan from Vermont, 12-year-old Sarah Lynn Butler from Arkansas, 15-year-old Grace McComas from Maryland, and 12-year-old Rebecca Ann Sedwick from Florida.

In this Article, I hope to provide states and their schools better guidance on how to effectively regulate cyberbullying that originates off campus. Specifically, I aim to make four unique contributions to the conversation.

First and foremost, I argue that cyberbullying is so harmful in and of itself that …

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 …

Sharing Stupid $H*T With Friends And Followers: The First Amendment Rights Of College Athletes To Use Social Media, Meg Penrose

Meg Penrose

This paper takes a closer look at the First Amendment rights of college athletes to access social media while simultaneously participating in intercollegiate athletics. The question posed is quite simple: can a coach or athletic department at a public university legally restrict a student-athlete's use of social media? If so, does the First Amendment provide any restraints on the type or length of restrictions that can be imposed? Thus far, neither question has been presented to a court for resolution. However, the answers are vital, as college coaches and athletic directors seek to regulate their athletes in a constitutional manner.