Education Law Commons^™

Natural Law, Parental Rights, And The Defense Of "Liberal" Limits On Government: An Analysis Of The Mortara Case And Its Contemporary Parallels, Melissa Moschella

Notre Dame Law Review

This Article explores parallels between integralists’ defense of the Mortara case (in which Pius IX removed a child from his parents’ care in order to provide him with a Catholic education) and contemporary progressive arguments for overriding the authority of parents who do not want their gender-dysphoric children to undergo social or medical gender transition. In Part I, I offer an overview of the natural law case for limited government, then in Part II I turn more specifically to a natural law defense of parental rights as an essential aspect of limited government. In the following Part, I return to …

The Marathon Continues: Texas Nil Has Room To Grow, Johnathon Blaine

Texas A&M Journal of Property Law

College athletes are now permitted to profit off their name, image, and likeness. However, while a hodgepodge of different regulations exists state-by-state and Congress continues to drag its feet to pass a federal framework, Texas restricts college athletes from maximizing their name, image, and likeness earning potential. This Comment proposes improvements to Senate Bill 1385 that would allow college athletes in Texas to partner with the same categories of “taboo” products as their respective university and to endorse products from competing brands, provided such endorsement is outside of a university-sponsored event, with an exception allowing unrestricted endorsement of footwear. This …

Teacher Shortages And The Fundamental Right To Education In California, Chris Yarrell

Pepperdine Law Review

That a qualified teacher workforce functions as the most important factor affecting student learning and achievement is beyond dispute. Yet, the right to education—which is a state obligation codified within all fifty 50 state constitutions—has been vindicated largely within the province of school finance litigation. Indeed, for nearly five decades, education litigants have brought school finance disputes in virtually every state, succeeding in more than half of them. Despite the hard-won victories notched by education litigants over this time, however, courts adjudicating school finance disputes have largely failed to move beyond declaring simple proscriptions on facially unequal school funding regimes. …

Put Your Money Where Their Mouths Are: A Case For State-Based Investment In Anti-Shaming Policies For School Lunch Programs, Shayna Roth

Northwestern Journal of Law & Social Policy

Despite its goals for feeding hungry students, the federal government’s National School Lunch Program falls short due to a lack of guidance and resources. One consequence of these circumstances is shaming practices where schools use fear, punishment, and socioeconomic segregation tactics to mitigate meal price deficits. The federal government and several state governments attempt, and sometimes succeed, to enact legislation to improve school lunch programs, but efforts are few and far between. This Note draws on effective state laws to advocate for increased legislative action on school meals across all states, specifically addressing and prohibiting shaming practices. Eliminating this barrier …

Changing The Game: The Emergence Of Nil Contracts In Collegiate Athletics And The Continued Efficacy Of Title Ix, Leeden Rukstalis

Washington and Lee Journal of Civil Rights and Social Justice

On June 30, 2021, the National Collegiate Athletic Association (“NCAA”) suspended a 115-year prohibition on college athletes’ ability to profit from the use of their names, images, and likenesses (“NIL”). Historically, NCAA eligibility was determined by an athlete’s amateur status. Student athletes forewent compensation to preserve a line between professional and college sports. Today, the NCAA’s novel NIL policy recognizes an athlete’s right to publicity and allows them to share in the billions of dollars it generates every year. According to estimates, college athletes earned $917 million in the first year of NIL activity. By 2023, the NIL market is …

Racial Isolation, School Police, And The “School-To-Prison Pipeline”: An Empirical Perspective On The Enduring Salience Of “Tipping Points”, Michael Heise

Buffalo Law Review

Two broad trends inform public K-12 education’s current trajectory. One involves persisting (and recently increasing) school racial isolation which helps account for an array of costs borne by students, schools, and communities. A second trend, involving a dramatically increasing police presence in schools, is evidenced by a rising school resource officer (“SRO/police”) presence in schools. Increases in the magnitude of a school’s SRO/police presence correspond with increases in the school’s propensity to engage law enforcement agencies in student disciplinary matters which, in turn, help fuel a growing school-to-prison pipeline problem. While these two broad trends propel two distinct research literatures, …

Childist Objections, Youthful Relevance, And Evidence Reconceived, Mae C. Quinn

Dickinson Law Review (2017-Present)

Evidence rules are written by and for adults. As a result, they largely lack the vantage point of youth and are rooted in arm’s-length assumptions about the lives and legal interests of young people. Moreover, because children have been mostly treated as evidentiary afterthoughts, they have been patched into the justice system and its procedures in a piecemeal fashion. Yet, to date, there has been no comprehensive scholarly critique of evidence principles and practices for failing to meaningfully account for youth. And the evidentiary intersection of youth and race has been almost entirely overlooked in legal scholarship. This Article, in …

Returning Control To The People: The Native American Languages Act, Reclamation, And Native Language Teacher Certification, Karen E. Lillie

Buffalo Law Review

No abstract provided.

Shooting To Minimize Gender Discrimination As An Unintended Consequence Of Title Ix, Alexa Potts

Dickinson Law Review (2017-Present)

Title IX is a federal law prohibiting sex-based discrimination in any education program or activity that receives federal funding. Congress initially passed Title IX out of concern for sexbased equality in academia. However, Title IX has had significant impacts on athletics, resulting in increased athletic opportunities for females. To be Title IX compliant, institutions must provide equality in athletic participation for both sexes. The Office of Civil Rights provided a three-part test to measure equality in athletic participation. Institutions must satisfy at least one of the three prongs to meet Title IX requirements as they pertain to equality in athletic …

Beating Justice: Corporal Punishment In American Schools And The Evolving Moral Constitution, Timothy D. Intelisano

William & Mary Journal of Race, Gender, and Social Justice

This Note will discuss the Supreme Court’s holding in Ingraham v. Wright, and the subsequent developments in public school corporal punishment practices. Rather than focus exclusively on the case law, this Note will dive into the statistical data outlining which students are most often subjected to corporal punishment. Often, it is Black students and Autistic students who are subject to the harshest treatment.

This Note will outline the different avenues that courts could and should take to overrule Ingraham. Because a circuit split exists—on the issue of how to resolve these claims—overturning Ingraham and declaring corporal punishment per …

Silencing Students: How Courts Have Failed To Protect Professional Students’ First Amendment Speech Rights, Shanelle Doher

Washington and Lee Law Review Online

Over the past two decades, social media has dramatically changed the way people communicate. With the increased popularity of virtual communication, online speech has, in many ways, blurred the boundaries for where and when speech begins and ends. The distinction between on campus and off campus student speech has become particularly murky given the normalization of virtual learning environments as a result of the COVID 19 pandemic. In Tinker v. Des Moines Independent Community School District, the Supreme Court clarified that students retain their First Amendment rights on campus but that schools may sanction speech that materially and substantially …

Obey Or Abey: An Empirical Examination Of Abeyance Agreements In Public School Discipline, Rachael K. Cox

Northwestern University Law Review

“Exclusionary discipline” is widely understood to mean the typical responses to student misbehavior in public schools: suspension and expulsion. But sometimes their lesser-known counterpart, the abeyance agreement, swoops in before the suspension or expulsion is effectuated and gives the student a “second chance” to avoid such exclusionary discipline—provided the student complies with the terms of the agreement. It sounds simple, but the reality is far more complicated. Without a clearly defined, regulated, and tracked practice, abeyance agreements are an off-record discipline device used at the sole discretion of public school district administrators. Joining a landscape of urgent concerns over the …

Battlegrounds For Banned Books: The First Amendment And Public School Libraries, Jensen Rehn

Notre Dame Law Review

Embedded in each conversation about banning books are arguments that use legal terminology. A brief conversation about banned books with a librarian will likely lead to a discussion of the “Library Bill of Rights” published by the ALA. No one is bound by the ALA’s Bill of Rights, which lacks a method of enforcement. Thus, the question remains: what is the legal landscape of banning books? Unfortunately, the Supreme Court has not provided a clear precedent about banning books from public school libraries. In fact, the Supreme Court has only taken cases about libraries on three occasions, each of which …

Resolving Regulatory Threats To Tenure, Joseph W. Yockey

University of Richmond Law Review

Many lawmakers and public university governing boards are looking to curb faculty tenure. Driven by both ideological and economic motives, recent efforts range from eliminating tenure systems altogether to interfering when schools seek to tenure individual, often controversial scholars. These actions raise serious questions about higher education law and policy and have important implications for the future of academic freedom. Indeed, if they gain further traction, current regulatory threats to tenure will jeopardize the ability of American universities to remain at the forefront of global research and intellectual progress.

This Article examines the growing anti-tenure sentiment among state officials and …

Mobility Matters: Where Higher Education Meets Transportation, Kate S. Elengold

UC Irvine Law Review

Higher education has long been hailed as the key to social and economic mobility. And yet, mobility itself is one of the greatest barriers to equity in higher education. Although scholars and policymakers have thus far paid scant attention to the role of transportation in higher education, this Article establishes why that oversight undermines educational equity.

Grounding its arguments in both interdisciplinary literature and rich original data from a multi-year mixed-methods research study, this Article demonstrates how transportation law and infrastructure affect college completion, disproportionately hindering completion for students of color. It further argues that higher education law and policy …

Cultural Humility And Cultural Brokering In Professional Training: Insights From People Of Color (Poc) And Persons With Disabilities (Pwd), Victoria Filingeri, Heather M. Mendez, Alisa Ssu Yu Lin, Gyasi Burks-Abbott, Amy Szarkowski, Jason Fogler

Developmental Disabilities Network Journal

This conceptual paper reflects the collaborative work of LEND trainees and faculty exploring the need to shift from “cultural competencies” to “cultural humility” in training programs. The authors draw on their lived experiences as members of racially/ethnically marginalized groups, members of the disability community, and advocates for equity in accessibility. Collectively, the authors highlight some of the challenges and opportunities in supporting diverse trainees in professional- and discipline-specific training programs. and in the provision of services the trainees provide to care-recipients across a variety of fields. This paper includes a series of case vignettes in order to: examine individual authors’ …

Inherently Unequal: The Effect Of Structural Racism And Bias On K-12 School Discipline, Alicia R. Jackson

Brooklyn Law Review

Structural racism is deeply rooted in our nation's history and often manifests as discrimination and inequality in critical facets of life in the United States, including education. This Article explores the impact of structural racism and bias on discipline in the K-12 public school setting. Discriminatory bias-based decision-making and school discipline policies have led to the disproportionate punishment of Black children, causing them to be excluded from classroom learning and creating a separate and unequal education structure. US Department of Education data shows that Black K-12 students are 3.8 times as likely to receive one or more out-of-school suspensions as …

Impartial Hearings Under The Idea: Updated Legal Issues And Answers, Perry A. Zirkel

Journal of the National Association of Administrative Law Judiciary

This updated question-and-answer document is specific to impartial hearing officers (IHOs) and the hearings that they conduct under the Individuals with Disabilities Education Act (IDEA). The coverage does not extend to the alternate third-party dispute decisional mechanism under the IDEA, the complaint resolution process (CRP) except to the extent that this alternative mechanism intersects with IHO issues. Similarly, the scope only extends secondarily to the IHO’s remedial authority, which is the subject of separate comprehensive coverage. The sources are largely limited to the pertinent IDEA legislation and regulations, court decisions, and the U.S. Department of Education’s Office of Special Education’s …

The Intersection Of Academic Freedom And Trigger Warnings, Ashleigh Maldonado

Journal of Multicultural Affairs

The purpose of this policy brief is to explore the intersection of academic freedom and trigger warnings. The author argues that the vague language within academic freedom policies and the blurred lines between judicial jurisdiction over first amendment rights and institutional jurisdiction over academic freedom policies sets the stage for future limitations on teachers’ rights within the classroom. Te author also argues that while much attention is given to the academic freedoms of instructors, more attention should be afforded to the academic freedoms of students when considering their requests for trigger warnings.

Second Chance Pell Experiment: How The United States Is Starting To Recognize Education As A Right, Brittany Walker

Human Rights Brief

For decades, education as a right has been an issue between U.S. citizens and U.S. courts. U.S. courts maintain that education is not a right, as it was not explicitly stated in the U.S. Constitution. Since the U.S. Constitution is silent about education, U.S. courts have applied the 14th Amendment to defer educational matters, such as compulsory school requirements, to each state. Currently, education in the United States is generally a right until middle school. After middle school, the American government allows parents and students to determine whether additional education is necessary in their situation. This view causes disparities for …

When Claims Collide: Students For Fair Admissions V. Harvard And The Meaning Of Discrimination, Cara Mcclellan

Loyola University Chicago Law Journal

This term, the Supreme Court will decide Students for Fair Admissions v. President and Fellows of Harvard College (SFFA v. Harvard), a challenge to Harvard College’s race-conscious admissions program. While litigation challenging the use of race in higher education admissions spans over five decades, previous attacks on race-conscious admissions systems were brought by white plaintiffs alleging “reverse discrimination” based on the theory that a university discriminated against them by assigning a plus factor to underrepresented minority applicants. SFFA v. Harvard is distinct from these cases because the plaintiff organization, SFFA, brought a claim alleg-ing that Harvard engages in intentional discrimination …

Meals For All, Not Just The Cake Eaters: A Call For Universal School Lunch In Minnesota As A Step Towards Racial Equity, Anna Cousin

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

School Curriculum: The Sigmatic Harm To Students And The Responsibility Of Congress To Act Again

Florida A & M University Law Review

When Brown was decided, the Supreme Court felt that it could not trust the States to encourage and facilitate equality on its own, which was proven true in the subsequent, decades-long resistance against integration following the Brown II mandate. Once again, the States cannot be trusted to move towards equality and away from backward community norms and bias without federal intervention. This is currently being exemplified by states like Florida—explicitly banning public schools from teaching Critical Race Theory. The Supreme Court does not seem willing to extend Brown any further, but the federal government may encourage and facilitate curriculum equality …

Critical Race Theory And Florida Schools: An Attempt To Suppress Racism Embedded Within American History

Florida A & M University Law Review

“Our Constitution is colorblind, and neither knows nor tolerates classes among its citizens.” Imagine that a public school student learns that the curriculum taught at their school about their culture and its history has just been banned. Further, they discover that the reasoning for the removal is the belief that the curriculum promotes reverse racism. Imagine this happening only to classes related to their culture and background, but similar courses teaching the history and experiences of other cultures remain untouched, unbanned, and unaddressed. History is the story of the past and tells us where we are, where we come from, …

A "Mere Shadow" Of A Conflict: Obscuring The Establishment Clause In Kennedy V. Bremerton, Ann L. Schiavone

Duquesne Law Review

In Kennedy v. Bremerton School District,¹ the Roberts Court continued its move to carve out larger spaces for religious practice and expression in public spheres.² But in so doing it left lower courts and school districts with many more questions than answers concerning what the Establishment Clause means and what it requires of them. Can school districts still protect students from religious coercion by teachers, classmates, and others? Are entanglements between church and state or the appearance of endorsement no longer problematic?³ Should the individual history and tradition of schools and communities influence decision making on …

Policing The College Campus: History, Race, And Law, Vanessa Miller, Katheryn Russell-Brown

Washington and Lee Journal of Civil Rights and Social Justice

The structure, impact, and historical roots of campus policing on the American college campus receives little academic attention. In fact, campus policing is often overlooked in legal analyses and research studies, including its relationship to race. Campus policing and race deserves a critical assessment from legal scholars because race is fixed to the ways the criminal-legal system presents itself on campus. The racialized implications of policing on campus are rooted in historical social and legal contexts that still exist today. However, the lack of research on campus policing is not surprising. American colleges and universities have successfully marketed themselves as …

Pandemic Silver Lining: Discovering The Reasonableness Of Remote Learning As An Accommodation Under The Ada, Kaitlyn Barciszewski

Washington and Lee Journal of Civil Rights and Social Justice

As society returned to “normal” following the worldwide pandemic caused by the outbreak of COVID-19, higher education students around the world could be heard celebrating and warmly welcoming their return to in-person classes. With this return came the face-to-face social interactions most longed for through the worldwide lockdown with friends, classmates, and professors. Some may even feel that in-person learning is more effective than what had become the norm––Zoom university. At this moment, however, these institutions can and should evaluate the potential benefits and continued utility of this alternate way of doing higher education that was forced upon them for …

Education Behind Bars: A History Of Prisoner Education Within The Florida Department Of Corrections And Suggestions For The Future, Peter Felix Armstrong

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Analysis Of Carson V. Makin, Wilson Huhn

Duquesne Law Review

Many school districts in the State of Maine lack high schools, so the children in those districts must attend another school selected by their parents.¹ In 1873 the State of Maine enacted a tuition assistance program, called "town tuitioning," that offers a stipend to participating schools to partially defray the cost of educating children from districts that lack a high school.² In 1981 the State of Maine enacted a law that categorically excludes "sectarian schools" from participating in the tuition assistance program.³ The Maine Department of Education defines a "sectarian school" as a school that is both …

The Legacy Of Brown V. Board Of Education: Achieving Student Body Diversity In All Levels Of Education, Nancy L. Zisk

Touro Law Review

This Article addresses the legal standard by which school admissions programs may be judged and validated as school districts struggle to achieve student body diversity. As the Supreme Court recognized in its seminal decision, Brown v. Board of Education, education “is the very foundation of good citizenship.” Twenty years after that case was decided, Thurgood Marshall, who had argued that separate was not equal in the Brown case, observed as a Justice of the Court that “unless our children begin to learn together, there is little hope that our people will ever learn to live together.” Because achieving student body …