Education Law Commons^™

"Defund The (School) Police"?: Bringing Data To Key School-To-Prison Pipeline Claims, Michael Heise, Jason P. Nance

UF Law Faculty Publications

Nationwide calls to “Defund the Police,” largely attributable to the resurgent Black Lives Matter demonstrations, have motivated derivative calls for public school districts to consider “defunding” (or modifying) school resource officer (“SRO/police”) programs. To be sure, a school’s SRO/police presence—and the size of that presence—may influence the school’s student discipline reporting policies and practices. How schools report student discipline and whether it involves referrals to law enforcement agencies matter, particularly as they may fuel a growing “school-to-prison pipeline.” The school-to-prison pipeline research literature features two general claims that frame debates about changes in how public schools approach student discipline and …

To Report Or Not To Report: Data On School Law Enforcement, Student Discipline, Race, And The 'School-To-Prison Pipeline', Michael Heise, Jason P. Nance

UF Law Faculty Publications

The “school-to-prison pipeline” wreaks havoc on the lives of thousands of students each year, particularly with respect to students of color. While the effects of the COVID-19 pandemic on the school-to-prison pipeline remain unclear, the eventual return to full in-person teaching nationwide undoubtedly will renew this long-festering problem. The presence of law enforcement officers in schools is a key component of the school-to-prison pipeline and has generated considerable recent national attention, especially after George Floyd’s tragic death in the spring of 2020. Indeed, several robust empirical studies document that the increased presence of school resource (and/or police) officers in a …

The Epidemic Of Higher Levels Of Depression And Anxiety In Each Successive Generation Of Youth: Proposed Causes, Detrimental Effects, And The Introduction Of Positive Psychology In The Classroom, Rosemarie Parasole

Florida Law Review

The past few decades have witnessed a major increase in each successive generation of youth reporting higher levels of mental illness. The detrimental effects of mental disorders, including depression and anxiety, demand a solution that addresses a change in thinking and wellbeing among youth. Research illustrates the substantial impact the teachings of positive psychology have on developing minds. Additionally, positive psychology addresses and attempts to remedy many of the proposed factors contributing to youth depression and anxiety. This Note calls for legislation to introduce positive psychology classes on a statewide level within the K–12 curriculum in all Florida public schools.

Governance Of Steel And Kryptonite Politics In Contemporary Public Education Reform, James Liebman, Elizabeth Cruikshank

Florida Law Review

Entrenched bureaucracies and special-interest politics hamper public education in the United States. In response, school districts and states have recently adopted or promoted reforms designed to release schools from bureaucratic control and empower them to meet strengthened outcome standards. Despite promising results, the reforms have been widely criticized, including by the educationally disadvantaged families they most appear to help.

To explain this paradox, this Article first considers the governance alternatives to bureaucracy that the education reforms adopt. It concludes that the reforms do not adopt the most commonly cited alternatives to bureaucracy—marketization, managerialism, or professionalism/craft— and that none of those …

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

UF Law Faculty Publications

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.

The American Bar Association Joint Task Force On Reversing The School-To-Prison Pipeline Preliminary Report, Sarah E. Redfield, Jason P. Nance

UF Law Faculty Publications

In 2014, the American Bar Association (ABA) Coalition on Racial and Ethnic Justice (COREJ) turned its attention to the continuing failures in the education system where certain groups of students — for example, students of color, with disabilities, or LGBTQ — are disproportionately over- or incorrectly categorized in special education, are disciplined more harshly, including referral to law enforcement for minimal misbehavior, achieve at lower levels, and eventually drop or are pushed out of school, often into juvenile justice facilities and prisons — a pattern now commonly referred to as the School-to-Prison Pipeline. While this problem certainly is not new, …

Dismantling The School-To-Prison Pipeline: Tools For Change, Jason P. Nance

UF Law Faculty Publications

The school-to-prison pipeline is one of our nation’s most formidable challenges. It refers to the trend of directly referring students to law enforcement for committing certain offenses at school or creating conditions under which students are more likely to become involved in the criminal justice system, such as excluding them from school. This article analyzes the school-to-prison pipeline’s devastating consequences on students, its causes, and its disproportionate impact on students of color. But most importantly, this article comprehensively identifies and describes specific, evidence-based tools to dismantle the school-to-prison pipeline that lawmakers, school administrators, and teachers in all areas can immediately …

Over-Disciplining Students, Racial Bias, And The School-To-Prison Pipeline, Jason P. Nance

UF Law Faculty Publications

Over the last three decades, our nation has witnessed a dramatic change regarding how schools discipline children. Empirical evidence during this time period demonstrates that schools increasingly have relied on extreme forms of punishment such as suspensions, expulsions, referrals to law enforcement, and school-based arrests to discipline students for violations of school rules, including for low-level offenses. Many have referred to this disturbing trend of schools directly referring students to law enforcement or creating conditions under which students are more likely to become involved in the justice system—such as suspending or expelling them—as the “school-to-prison pipeline.” Perhaps the most alarming …

Rethinking Law Enforcement Officers In Schools, Jason P. Nance

UF Law Faculty Publications

A recent event that occurred in a South Carolina classroom illustrates why there should be concern about assigning law enforcement officers to work in public schools. In October of 2015, a teacher called a law enforcement officer into a classroom to handle a student behavior problem. A female student was using a cell phone in violation of school rules. Other students in the classroom captured what happened next by video. The videos show that when the student refused to exit the classroom, the officer grabbed her by the neck, flipped her and her desk to the floor, and then forcibly …

Religion And The Equal Protection Clause: Why The Constitution Requires School Vouchers, Steven G. Calabresi, Abe Salander

Florida Law Review

Ask anyone whether the Constitution permits discrimination on the basis of religion, and the response will undoubtedly be no. Yet the modern Supreme Court has not recognized that the antidiscrimination command of the Fourteenth Amendment protects religion in the same way that the Amendment protects against discrimination on the basis of race or gender. In fact, the Supreme Court has permitted the legislature to facially discriminate against religion in funding programs. To make matters worse, thirty-seven state constitutions and the District of Columbia’s Code openly discriminate on the basis of religion in so-called Blaine Amendments.

School Surveillance And The Fourth Amendment, Jason P. Nance

UF Law Faculty Publications

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …

The White Interest In School Integration, Robert A. Garda Jr.

Florida Law Review

Discussions concerning desegregation, affirmative action, and voluntary integration focus primarily, if not exclusively, on whether such policies harm or benefit minorities. Scant attention is paid to the benefits whites receive in multiracial schools, despite white interests underpinning more than thirty years of Supreme Court integration jurisprudence. In this Article, I explore the academic and social benefits whites receive in multiracial schools, and I do so from a white parent’s perspective. The Article begins by describing the interest-convergence theory and how white interests explain the course and content of the Supreme Court’s desegregation and affirmative action jurisprudence. Multiracial schools will not …

Flawed But Noble: Desegregation Litigation And Its Implications For The Modern Class Action, Davis Marcys

Florida Law Review

From the perspective of the present day, Rule 23 of the Federal Rules of Civil Procedure contains a difficult puzzle. After a court certifies a class pursuant to Rule 23(b)(3) in a money damages case, absent class members must receive notice and have a chance to opt out. Their counterparts in injunctive or declaratory relief suits prosecuted pursuant to Rule 23(b)(2) do not. As long understood, the class certification decision essentially equals a determination to bind all class members to the eventual judgment. Class members seeking money damages therefore have some control over their rights to sue before these rights …

School Security Considerations After Newtown, Jason P. Nance

UF Law Faculty Publications

On December 14, 2012, and in the weeks thereafter, our country mourned the deaths of twenty children and six educators who were brutally shot and killed at Sandy Hook Elementary School in Newtown, Connecticut. Since the horrific massacre, parents, educators, and lawmakers have understandably turned their attention to implementing stronger security measures in schools. This essay provides important points for policymakers and school officials to consider before embarking on a new phase of school security upgrades.

Student Speech And The First Amendment: A Comprehensive Approach, Lee Goldman

Florida Law Review

Can a school discipline a student for creating a vulgar parody profile of the school principal or another student on the website MySpace? Can it preclude a student from wearing at school a T-shirt that reads, “Homosexuality is shameful”? These are some of the difficult issues raised when students’ First Amendment rights clash with schools’ operational needs and custodial responsibilities. The Supreme Court has addressed students’ First Amendment speech rights on several occasions, most recently in Morse v. Frederick. Lower courts, however, have had great difficulty applying these precedents, particularly when the speech involves the Internet or other new media. …

Students, Security, And Race, Jason P. Nance

UF Law Faculty Publications

In the wake of the terrible shootings in Newtown, Connecticut, our nation has turned its attention to school security. For example, several states have passed or are considering passing legislation that will provide new funding to schools for security equipment and law enforcement officers. Strict security measures in schools are certainly not new. In response to prior acts of school violence, many public schools for years have relied on metal detectors, random sweeps, locked gates, surveillance cameras, and law enforcement officers to promote school safety. Before policymakers and school officials invest more money in strict security measures, this Article provides …

The Gunslinger To The Ivory Tower Came: Should Universities Have A Duty To Prevent Rampage Killings?, Ben "Ziggy" Williamson

Florida Law Review

On April 16, 2007, Seung Hui Cho, a Virginia Tech student, went on a rampage across the university’s campus. He murdered thirty-two people —twenty-seven students and five professors—before killing himself. Cho’s rampage was not only the worst mass shooting on an American university campus, it was the worst in American history—twenty-seven students and five professors—before killing Cho’s horrific actions and his highly publicized video manifestos revealed a deeply disturbed personality. But to some students, teachers and administrators, Cho’s nature was not a revelation. Cho’s troubled history included suicidal and homicidal ideation since middle school, violent and disturbing writings, classroom behavior …

Two Wrongs Don't Negate A Copyright: Don't Make Students Turnitin If You Won't Give It Back, Samuel J. Horovitz

Florida Law Review

The story goes something like this: There was a particularly difficult college professor notorious for a low grading scale. After years of low grade following low grade, one paper finally earned a B minus, the highest grade ever awarded by this professor. Word spread about the paper, and the student author sold it to the highest bidder, who later turned in the same paper to the same professor and received a B. The next year, after being recycled yet again, the paper received a B plus. When the paper was recycled and submitted a fourth time, it finally received an …

Returning To Hazelwood's Core: A New Approach To Restrictions On School-Sponsored Speech, Emily Gold Waldman

Florida Law Review

Nearly twenty years ago in Hazelwood School District v. Kuhlmeier, the Supreme Court, in upholding the constitutionality of a public high school principal’s censorship of a student newspaper produced in a journalism class, held that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Since then, Hazelwood’s “reasonably related to legitimate pedagogical concerns” This Article argues that this conundrum can be untangled by returning to Hazelwood’s core as a student speech case. It first …

How Not To Criminalize Cyberbullying, Lyrissa Barnett Lidsky, Andrea Garcia

UF Law Faculty Publications

This essay provides a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which this essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, this essay contends that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, creating pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate …

Death Or Transformation? Educational Autonomy In The Roberts Court, Elizabeth Dale

UF Law Faculty Publications

In the aftermath of the Supreme Court's decisions in Grutter and Gratz a number of commentators argued that the Court had begun to embrace a new constitutional doctrine that required deference to the decisions of some institutions. Most notably they asserted that the Court would defer within the field of education. But even as they suggested that the Court was more willing to explore the doctrine, those two opinions left several large questions unanswered: Did the Court's embrace of institutional autonomy extend beyond higher education, into the K-12 realm? If so, what were its bounds? Was the doctrine only relevant …

Institutional Academic Freedom Or Autonomy Grounded Upon The First Amendment: A Jurisprudential Mirage, Richard H. Hiers

UF Law Faculty Publications

In recent decades, several federal judges and Supreme Court Justices have stated that, at some time or another in the past, the Court determined that public universities or their professional schools are entitled to institutional academic freedom (or institutional autonomy) under the First Amendment. Notwithstanding the views of many learned commentators, the Court has never so held. Concurring opinions and dicta do not constitute Constitutional law. This article traces the series of misattributions, misreadings and other errors that have contributed to the present peculiar state of confusion in regard to these matters.

School Discipline 101: Students' Due Process Rights In Expulsion Hearings, Melissa Frydman, Shani M. King

UF Law Faculty Publications

Upholding the principle that school districts, as state actors, shall not deprive a student of liberty or property without due process of law, courts have expanded for more than four decades the Fourteenth Amendment's due process protection of public school students. Understanding this principle is essential to representing children in school discipline proceedings. Before presenting a practical guide to representing students in these proceedings, we offer a brief history of due process protection for children.

The Experimental Use Exception To Patent Infringement: Do Universities Deserve Special Treatment?, Elizabeth A. Rowe

UF Law Faculty Publications

The experimental use exception is a common law exception to the patent-holder's exclusive right of use. It permits the use of another's patented device when such use is for philosophical inquiry, curiosity, or amusement. It has recently come under attack by many who consider it too narrow. They fear that the courts' "narrowing" of the experimental use exception will stifle research and innovation. Much of the discontent with the doctrine has been spurred by a relatively recent Federal Circuit opinion, Madey v. Duke University, which makes clear that a research university does not receive immunity under the experimental use …

Lessons From And For "Disabled" Students, Sharon E. Rush

UF Law Faculty Publications

The traditional understanding of "disabled" means to have a physical, mental, or emotional limitation. It is unfortunate that the word has negative connotations because we all have the ability to do some things and not others. An individual's disabilities, traditional or otherwise, do not diminish the person or detract from the universal tenet that all people are inherently equal and entitled to be treated with dignity. Generally, it is unproductive to compare the circumstances of one group with another for the purpose of discerning which group has it better or worse. Struggles by different groups to achieve equality have different …

Institutional Academic Freedom - A Constitutional Misconception: Did Grutter V. Bollinger Perpetuate The Confusion?, Richard H. Hiers

UF Law Faculty Publications

This article begins with a review of language that eventually gave rise to the concept of institutional academic freedom, and includes a summary of lower court decisions embracing that concept or notion. The second part identifies certain constitutional problems in connection with the idea that institutional academic freedom can somehow be derived from or based upon the First Amendment. The third part describes and analyzes language in the Court's Grutter decision, language that may or may not have the effect of validating the concept of institutional academic freedom under the First Amendment.

Emotional Segregation: Huckleberry Finn In The Modern Classroom, Sharon E. Rush

UF Law Faculty Publications

This paper explores the harm of teaching The Adventures of Huckleberry Finn in public school classrooms. Such harm can be broadly described as emotional segregation, which occurs when society sanctions disrespect. To illustrate the effects of emotional segregation, this article explores the reaction Black students and parents have to the novel to that of White students and parents. White students eagerly imagine being Huck and going on his adventures. Black students, however, cannot and should not even be asked to try to imagine being Huck and betraying their racial identity. But then who are the Black students supposed to identify …

The Role Of The Administrator In Instructional Technology Policy, Philip T.K. Daniel, Jason P. Nance

UF Law Faculty Publications

In response to national and state reform movements, and in an attempt to strengthen preparation standards for teachers and students, accreditation boards have prepared performance indicators in the area of technology. Such standards call for the full integration of technology in school curricula, formal coursework and professional development workshops for teachers, and an understanding on the part of teachers and students alike as to the legal and ethical issues surrounding the use of technology. The thesis of this research is that it is essential that school administrators be involved in all levels of planning and integrating technology into school curricula …

Setting A New Standard For Public Education: Revision 6 Increases The Duty Of The State To Make ‘Adequate Provision’ For Florida Schools, Jon L. Mills, Timothy Mclendon

UF Law Faculty Publications

Among the nine revisions proposed to Florida voters by the Constitution Revision Commission in 1998, Revision 6 fundamentally enhanced Florida's responsibility for public education. Revision 6 amended Article IX, Section 1, of the Florida Constitution, which sets forth the State's duty to provide for public education. Entitled “PUBLIC EDUCATION OF CHILDREN,” Revision 6 makes a declaration of the relative importance of education to the people of Florida, and describes as “paramount” the duty of the state to adequately provide for education. Revision 6 goes on to detail and raise the constitutional standard for what constitutes “adequate provision” for public education, …

The Heart Of Equal Protection: Education And Race, Sharon E. Rush

UF Law Faculty Publications

Brown vs. Board of Education established more than the unconstitutionality of the separate but equal doctrine in public education. Brown also gave the importance of education a constitutional dimension. Involuntary racial segregation creates a stigma wherever it exists which indisputably affects all children's self-esteem by possibly undermining that of children of color and by artificially inflating that of White children. Unfortunately, more recent cases that raise questions about the right to a public education seem less willing to acknowledge the importance of education and the importance of integration in public education. Since Brown, the Court has held repeatedly that …