Education Law Commons^™

School Pronouns And The Compelled-Speech Objection, Phillip Seaver-Hall

Mercer Law Review

America’s transgender youth are entrenched in a nationwide mental health crisis. A majority of transgender teenage boys have attempted suicide at least once, and roughly a third of transgender teenage girls have done the same. To mitigate this national emergency, many public school districts have begun requiring their teachers to use transgender students’ preferred names and pronouns. Many conservatives, however, insist that such rules violate the First Amendment’s prohibition of compelled speech.

This article thoroughly dissects that argument and exposes its flaws. It examines the compelled‑speech objection through the lens of the government speech doctrine, weighs countervailing academic‑freedom concerns, proposes …

From Bostock To Adams: Following The Expansion Of Rights For Transgender Students In Public School Settings, William A. White, M. Chase Collum

Mercer Law Review

Since before the turn of the twenty-first century, it is undeniable that classrooms across the country have undergone a multitude of changes. In 2020, schooling continued through a global pandemic—forcing teachers and students alike to improvise, adapt, and overcome challenges both in the classroom and in their own homes. Now that teachers and students are attempting to return to “normal,” federal courts across the country have passed down a number of decisions that will impact students’ return to the classroom. Specifically, the Supreme Court of the United States’ landmark decision in Bostock v. Clayton County, Georgia, (Bostock) …

After Bostock: 11th Circuit Extends Landmark Case And Strikes Down School’S Transgender Bathroom Policy Under Title Ix And The Equal Protection Clause, Ben T. Tuten

Mercer Law Review

When Drew Adams walked into Nease High School one fall day and was told that he could no longer use the boy’s restroom at school, he could never have known that years down the road his case would be so important to so many others. In the past decade, there has been a heated debate over transgender rights broadly, and specifically whether it was permissible to ban transgender persons from using the bathroom corresponding to their gender identity.

The landscape changed in June 2020 with the U.S. Supreme Court’s decision in Bostock v. Clayton County. In Bostock, the Court expanded …

Perfect Adherence Or Material Deviation?: The Eleventh Circuit's Bright Idea In Resolving Individualized Education Plan Implementation Cases, Chelsea Henderson

Mercer Law Review

In 2002, L.J., a child with intellectual disabilities and autism, began using an individualized education plan (IEP). This IEP was meant to provide L.J. with the free appropriate public education (FAPE) that is guaranteed to all children across the United States. However, L.J.'s mother did not believe the School Board of Broward County adequately implemented L.J.'s IEP. L.J.'s mother's concern resulted in an almost twenty-year legal battle between L.J. and the Broward County School Board. This battle finally ended in June 2019, when the United States Court of Appeals for the Eleventh Circuit joined four other circuits in holding that …

Positive Education Federalism: The Promise Of Equality After The Every Student Succeeds Act, Christian B. Sundquist

Mercer Law Review

The accepted narrative of the American public education system is one of decline, educational "crisis," and systemic failure. Our public schools increasingly are segregated by race and class in the post-Brown era, while fundamental social inequalities persist among schools in regards to educational quality, financing, and outcomes. Long viewed as essential to the economic and democratic development of America's citizenry, our unequal system of universal public education has forsaken the "faces at the bottom of [the] well" in an era of deregulation and decreased social welfare funding. ...

Part I of this Article explores traditional conceptions of federalism as a …

Schoolhouse Rock: Lessons Of Homosexual Tolerance In Keeton V. Anderson-Wiley From The Classroom To The Constitution, Billie Pritchard

Mercer Law Review

The public educational system is charged with more than the academic success of America's youth. Educators are responsible for "nurtur[ing] students social and moral development by transmitting to them an official dogma of community values." As Keeton v. Anderson-Wiley demonstrates, community values are rapidly changing to acknowledge new constructions of homosexual identity and constitutional interests relative to historically marginalized attributes. In Keeton the United States District Court for the Southern District of Georgia denied a preliminary injunction to a student asserting various First Amendment claims against her university for requiring her to complete remedial training for counseling gay, lesbian, bisexual, …

Bullying In Public Schools: The Intersection Between The Student's Free Speech Rights And The School's Duty To Protect, Elizabeth M. Jaffe, Robert J. D'Agostino

Mercer Law Review

The 2009 case of eleven-year-old Jaheem Herrera's suicide in Georgia, which resulted after alleged repeated verbal bullying by his classmates, presents an interesting question regarding whether public schools must take action to prevent this type of behavior even if it does not disrupt the classroom. The issue to be addressed is not what speech schools can censor but whether schools must censor or prevent certain speech that has a harmful effect on the educational environment for a specific student or a specifically identifiable group of students.

If a public school student has a civil or liberty right to his education,' …

Doubting Thomasville's Ability-Grouping Program: Holton V. City Of Thomasville School District, William Benjamin Bryant

Mercer Law Review

The summer of 2007 was an active season for education cases in the United States federal court system. While the Supreme Court heard several cases related to freedom of speech and school race issues, the United States Court of Appeals for the Eleventh Circuit heard its own case, Holton v. City of Thomasville School District, in which the court examined the City of Thomasville School District's ("the School District") ability-grouping program. The court held that the School District's program was neither intentionally discriminatory nor the result of prior de jure segregation by the district. The Eleventh Circuit's decision extends …

Signed, Your Coach: Restricting Speech In Athletic Recruiting In Tennessee Secondary School Athletic Ass'n V. Brentwood Academy, Brian Craddock

Mercer Law Review

In Tennessee Secondary School Athletic Ass'n v. Brentwood Academy ("Brentwood I/,), the United States Supreme Court unanimously held that an athletic association may enforce its anti-undue-influence recruiting policy, restricting the speech of its voluntary member schools, to avoid undue influence on young student athletes during the recruitment process. In reaching its holding, the Court extended two lines of First Amendment jurisprudence. First, the Court extended the application of Ohralik v. Ohio State Bar Ass'n to a context other than attorney-client solicitation for the first time. In doing so, the Court held that the possibility of undue influence in athletic recruiting …

King Solomon: Did The Supreme Court Make A Wise Decision In Upholding The Solomon Amendment In Rumsfeld V. Forum For Academic & Institutional Rights, Inc.?, Brook Bristow

Mercer Law Review

In a unanimous decision in Rumsfeld v. Forum for Academic & Institutional Rights, Inc., the United States Supreme Court upheld the constitutionality of the Solomon Amendment. The Court ruled that under the Solomon Amendment, military recruiters must be given the same access as nonmilitary recruiters on university campuses. The Court's holding clarified three First Amendment tangential freedom issues: (1) what is and what is not expressive conduct; (2) what constitutes compelled speech; and (3) what is meant by expressive association.

Brown V. Board Of Education: Right Result, Wrong Reasoning, Ellis Washington

Mercer Law Review

The genesis of this Article was originally conceived as a letter to a journalist in response to an article I had read in the Detroit News titled, "Judge Damon Keith, governor hosts fund raiser on Saturday." I also heard about this event while listening to National Public Radio that same day, and I planned on attending because Judge Keith is a great man and a great civil rights champion. I have always wanted to meet this Titan in person, however, after further reflection, I decided not to attend this event on principle. The occasion was in part a fundraiser for …

Nlrb Refuses To Harm "Academic Freedom" At Universities By Permitting Graduate Student Assistants To Unionize, Elizabeth Butler Baum

Mercer Law Review

In Brown University, the National Labor Relations Board ("NLRB" or "Board") held that graduate assistants are students rather than employees, and in doing so, it settled the issue of whether graduate student assistants admitted into a university should be treated as employees for purposes of collective bargaining. The NLRB declared that the relationship between a university and its graduate student assistants was fundamentally educational rather than economic, and therefore, no union rights exist for graduate students at Brown University ("Brown").

Grutter V. Bollinger: Race As A Factor In Public Higher Education Admissions Policies, Valerie Njiiri

Mercer Law Review

In Grutter v. Bollinger, the United States Supreme Court held that the University of Michigan Law School's goal of student body diversity was a compelling interest. The Court concluded that the Law School's narrowly tailored race-based admissions program was not prohibited by the Equal Protection Clause because it furthered "a compelling interest in obtaining the educational benefits that flow from a diverse student body." This decision was unexpected in light of affirmative action rulings which have limited the use of race in admission programs.

Education Law, Jerry A. Lumley

Mercer Law Review

While the 2003 session of the Georgia General Assembly did not produce as much legislation in the area of school law as in years past, significant school legislation was signed into law by Governor Perdue in 2003. Additionally, Georgia's appellate courts issued several important decisions in this area. This Article discusses the significant legislation passed and major appellate decisions issued during the survey period.

Education Law, Jerry A. Lumley

Mercer Law Review

Primarily because of Governor Barnes' "A Plus Education Reform Act of 2000" ("the Reform Act"), Georgia experienced sweeping changes in the area of education law during the past year. This Article discusses the Reform Act, other education legislation, and decisions of Georgia appellate courts in the area of education during the past year.

Chandler V. James: Welcoming Student Prayer Back In The Schoolhouse Gate, Sarah Beth Mabery

Mercer Law Review

In Chandler v. James, the Eleventh Circuit Court of Appeals vacated the district court's order permanently enjoining enforcement of an Alabama statute that permitted student-initiated religious speech in public schools. The court of appeals concluded that permitting student initiated religious speech did not violate the Establishment Clause and such speech is protected by the Free Exercise and Free Speech Clauses of the First Amendment.

Gebser V. Lago Vista Independent School District: School District Remains Afloat In Title Ix Litigation Floodwater, Richard A. Weller

Mercer Law Review

In Gebser v. Lago Vista Independent School District, the United States Supreme Court held that a school district could not be held liable under Title IX for a teacher's sexual harassment of a student without actual notice and deliberate indifference. In a five to four decision, the Court affirmed summary judgment in favor of the school district.'

Where To Draw The Line? The Supreme Court Reverses On Federal Funding Programs Regarding Religious Schools: Agostini V. Felton, Michael N. White

Mercer Law Review

In Agostini v. Felton the Supreme Court reversed its 1985 decision in Aguilar v. Felton by holding that a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is valid under the Establishment Clause even when the instruction is given on the premises of sectarian schools by government employees as long as the program contains safeguards such as those present in New York City's Title I program. Thus, the twelveyear- old permanent injunction entered in Aguilar against New York City's Title I program was vacated.

Hopwood V. Texas: The Beginning Of The End For Racial Preference Programs In Higher Education, Jeremy Moeser

Mercer Law Review

In Hopwood v. Texas, the Court of Appeals for the Fifth Circuit held that the University of Texas ("UT") School of Law's admissions program, which gave preference to African-Americans and Mexican-Americans, violated the Fourteenth Amendment's Equal Protection Clause. For the 1992 school year, the University of Texas School of Law processed applications by using an applicant's Texas Index ("TI") number, a figure comprised of the applicant's undergraduate grade point average and Law School Admissions Test ("LSAT") score. Based on the TI, the law school distributed applications into three categories of review: presumptive admit, presumptive deny, and discretionary zone. For …

Rosenberger V. Rector & Visitors Of The University Of Virginia: Free Speech Clause And Establishment Clause Doctrines Work Together To Protect Individual Thought And Expression, Elizabeth M. Wheeler

Mercer Law Review

In Rosenberger v. Rector & Visitors of the University of Virginia, the United States Supreme Court evaluated the constitutionality of a state university's refusal to fund a student group's activity based solely on the group's Christian perspective. Respondent, the University of Virginia, regularly authorizes the payment of the printing bills for various student publications. Upon authorization, the University pays outside printing contractors directly with money from the Student Activities Fund ("SAF), which is supported by mandatory student fees. The purpose of the SAF is to make available to students a wide range of opportunities by supporting extracurricular activities that …

Proposed Guidelines For Student Religious Speech And Observance In Public Schools, Jay Alan Sekulow, James Henderson, John Tuskey

Mercer Law Review

The First Amendment to the United States Constitution provides, "Congress shall make no law respecting an establishment of religion .... " The First Amendment also provides, "Congress shall make no law ... abridging the freedom of speech, or of the press.. ." Perhaps no question has so bedeviled American courts in this century as that of how to reconcile these two provisions in this nation's public schools. Questions that arise include: Does allowing students to pray, share their faith with other students, or even discuss their religion at the public schools constitute an "establishment of religion?" May public schools go …

Graduation Prayer After Lee V. Weisman: A Cautionary Tale, Stephen B. Pershing

Mercer Law Review

Loudoun County, Virginia, is a lush expanse of fields and rolling hills at the edge of the burgeoning Washington metropolis. Its growing population is heavily white, affluent, and Christian. In 1993, a year after the Supreme Court's decision in Lee v. Weisman, the county not surprisingly became an arena for the resurgence of a familiar prayer in America's public schools.

This Article tells the story of the Loudoun County graduation prayer litigation, and tries to set the case in context. It ponders doctrinal questions from an unabashedly separationist perspective, but it offers words of caution for both sides in the …

The Threat To The American Idea Of Religious Liberty, Robert S. Peck

Mercer Law Review

With the Supreme Court unlikely to overturn its public school prayer decisions, those who seek a greater religious presence in education have launched two complementary strategies intended to expand existing guarantees of school-related worship rights.

The first strategy is a renewed effort to pass a school prayer constitutional amendment utilizing the political muscle that conservative religious interests demonstrated in the 1994 elections and which resulted in the first Republican controlled Congress in forty years. The amendment movement dangerously attempts to authorize the use of government offices for purposes of religious indoctrination. Though previous efforts at authorizing public school prayer through …

The Ironic State Of Religious Liberty In America, Frederick Mark Gedicks

Mercer Law Review

The constitutionality of organized graduation or classroom prayer in public schools is an issue of continuing controversy in the United States. There are, of course, numerous policy arguments for and against allowing prayer in public schools, but I will be focusing on the constitutional issues and consequently will have rather less to say about policy. (I will disclose, however, that as a matter of policy, I think there are problems with public schools' organizing and sponsoring group prayer as part of graduation ceremonies or classroom activities; it would seem that Mr. Peck, Mr. Sekulow, and I all agree on that, …

The Beat Goes On: District Court Upholds Virginia Military Institute's All-Male Admissions Policy In United States V. Virginia, Phillip Comer Griffeth

Mercer Law Review

In United States v. Virginia, the United States District Court for the Western District of Virginia held that Virginia Military Institute ("VMI"), a state-supported college, can exclude women under its 152- year-old admissions policy without violating the Equal Protection Clause of the Fourteenth Amendment. The court based its decision on the United States Supreme Court's holding in Mississippi University for Women v. Hogan. Applying the Hogan test, the district court held that VMI's discrimination serves an important state educational objective by enhancing the diversity of Virginia's overall education system and that the exclusive admissions policy is substantially related …

Hennessy V. Webb: Sovereign Immunity For The Less-Than-Sovereign - How Far Will It Go?, Susan Pyeatt

Mercer Law Review

In Hennessy v. Webb, the Georgia Supreme Court held that a public school principal was entitled to governmental immunity from tort liability for alleged negligence in allowing a hazardous condition to exist upon school premises. The court ruled that plaintiffis action was brought against the principal in his official capacity as an agent of the board of education for negligent exercise of his authorized discretion.