Education Law Commons^™

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 …

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 …

Can There Really Be "Free Speech" In Public Schools?, Richard W. Garnett

Journal Articles

The Supreme Court's decision in Morse v. Frederick leaves unresolved many interesting and difficult problems about the authority of public-school officials to regulate public-school students' speech. Perhaps the most intriguing question posed by the litigation, decision, and opinions in More is one that the various Justices who wrote in the case never squarely addressed: What is the "basic education mission" of public schools, and what are the implications of this "mission" for officials' authority and students' free-speech rights. Given what we have come to think the Free Speech clause means, and considering the values it is thought to enshrine and …

An Unconstitutional Stereotype: Catholic Schools As Pervasively Sectarian, Gerard V. Bradley

Journal Articles

The Supreme Court first held public assistance to religious schools unconstitutional in 1971 in Lemon v. Kurtzman. From then until now the concept of “pervasively sectarian” has played a central role in “parochaid” jurisprudence; every holding against “direct” aid has rested upon it as a necessary premise. “Pervasively sectarian” refers to the assertedly religious (“sectarian”) character of the entire curriculum at parochial schools. Religion, it is said, so permeates the whole educational program that “direct aid” to any aspect of that program inescapably aids religion itself. And that, it is said, violates the Establishment Clause. Because aid statutes typically aim …

The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett

Journal Articles

As this Essay goes to press, the Supreme Court is considering whether Ohio's school-choice program violates the First Amendment to the United States Constitution. In my view, the Ohio program is sound public policy, and it is consistent with the Justices' present understanding of the Establishment Clause. I also believe that the Court will and should permit this experiment, and our conversations about its merits, to continue. The purpose of this Essay, though, is not to predict or evaluate ex ante the Court's decision. Instead, my primary aim is to suggest and then sketch a few broad themes that--once the …

Religion At A Public University, Gerard V. Bradley

Journal Articles

On March 6, 2007, the College of William & Mary announced a “compromise” solution to its polite civil war over the historic Wren Chapel. In a joint statement with President Gene Nichol, the Board of Visitors declared that permanent display of the Christian cross within the Chapel would resume. The cross would be moved, however, from its former place at center stage on the Chapel altar. Accompanying the elocated display would be a plaque “explaining the College's Anglican roots.” The compromise further provided that, when needed during certain worship services, the cross could be moved back to the altar. When …

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

Journal Articles

Thank you very much for this timely and important discussion on school choice, religious faith, and the public good.

First things first—Steven Green is right: The Cleveland school-voucher case is headed for the Supreme Court. And I am afraid that Mr. Green is also correct when he observes that the question whether the First Amendment permits States to experiment with meaningful choice-based education reform will likely turn on Justice O'Connor's fine-tuned aesthetic reactions to the minutiae of Ohio's school-choice experiment.

Putting aside for now the particulars of the Cleveland case, though, I would like to propose for your consideration a …

School Choice, The First Amendment, And Social Justice, Nicole Stelle Garnett, Richard W. Garnett

Journal Articles

This Article is intended to be a primer on the legality and morality of educational choice—"School Choice in a Nutshell," if you will. We are resigned to being pre-empted by the tireless work of grassroots activists, the choices of voters, and the decisions of judges. Still, we hope, in somewhat polemical fashion, to establish two basic claims. First, school choice, properly understood, is constitutional. And second, school choice is both sensible and just.

In the end, we believe "school choice . . . is essential to achieving equality of opportunity for American children, rich or poor. School choice treats the …

Prayer Amendment: A Justification, Charles E. Rice

Journal Articles

It is customary for each house of Congress to open its daily sessions with prayer delivered by its Chaplain. One might conclude that if the lawmakers of the nation are entitled to ask for divine blessing upon their work, so are the rest of us, including school children. Not so. For the Supreme Court of the United States has drawn the line. Legislators may pray, so far at least, but school children may not. Thus it was that the courts intervened to prevent the holding of "a period for the free exercise of religion" in the Netcong, New Jersey, public …

The Meaning Of "Religion" In The School Prayer Cases, Charles E. Rice

Journal Articles

It is not my purpose here to discuss the possible extensions of the school prayer decisions. Rather, I am concerned only with the thought that the unqualified incorporation of the broad definition of religion into the establishment clause is perhaps the root fallacy in the Court's reasoning. In order to avoid an institutionalization of agnosticism as the official public religion of this country, the Court ought to acknowledge that nontheistic religions are not entitled to such unqualified recognition under the establishment clause as to bar even a simple governmental affirmation that in fact the Declaration of Independence is true when …