Law Commons^™

Banned Books & Banned Identities: Maintaining Secularism And The Ability To Read In Public Education For The Well-Being Of America's Youth, Megan M. Tylenda

Indiana Journal of Law and Social Equality

Books containing LGBTQ+ themes and characters are being removed from public school libraries at a rapid rate across the United States. While a book challenge has made it to the Supreme Court once before, the resulting singular plurality opinion left courts without a clear test to apply, ultimately leaving students’ First Amendment rights in the air. Additionally, the increasingly relaxed view of courts towards religious influence in public schools indicates that if a modern case were to reach the Supreme Court, religious challenges may be accepted, which would leave LGBTQ+ students who seek to see themselves represented in literature without …

Incombustible Ideas: Evaluating The Impact Of Federal Court Opinions Regarding Book Banning In Public-School Libraries, Noah T. Holloway

Indiana Journal of Law and Social Equality

No abstract provided.

Outside Tinker’S Reach: An Examination Of Mahanoy Area School District V. B. L. And Its Implications, Michelle Hunt

Northwestern Journal of Law & Social Policy

In the 1969 landmark case Tinker v. Des Moines Independent Community School District, the Supreme Court reassured students that they do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Ever since then, the exact scope of students’ free speech rights has been unclear, but the high court has used Tinker’s substantial disruption test to clarify its scope in successive legal challenges. In 2017, B. L., a Mahanoy Area School District student, was suspended from her cheerleading team after using vulgar language off-campus that made its way back to her coaches. She …

Catalytic Courts And Enforcement Of Constitutional Education Funding Provisions, Hugh D. Spitzer, Andy Omara

Articles

It is well-recognized that it is easier for judges to enforce constitutional “negative rights” provisions than positive social and economic rights. This article focuses on the challenges of enforcing one specific positive right: the constitutional right of children to attend adequately funded schools. Our article tests on-the-ground judicial implementation of education funding provisions against the general theoretical framework of judicial interaction with the political branches developed by Katharine Young. We analyze how, in multi-year, multi-decision litigation, constitutional court judges in the three jurisdictions we studied actively experimented with the challenging task of forcing, or enticing, reluctant legislative and executive branches …

Mccleary V. State And The Washington State Supreme Court's Retention Of Jurisdiction—A Success Story For Washington Public Schools?, Jessica R. Burns

Seattle University Law Review Online

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 …

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Articles

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …

Educational Equality For Children With Disabilities: The 2016 Term Cases, Samuel R. Bagenstos

Book Chapters

One of the most longstanding debates in educational policy pits the goal of equality against the goal of adequacy: Should we aim to guarantee that all children receive an equal education? Or simply that they all receive an adequate education? The debate is vexing in part because there are many ways to specify “equality” and “adequacy.” Are we talking about equality of inputs (which inputs?), equality of opportunity (to achieve what?), or equality of results (which results?)? Douglas Rae and his colleagues famously argued that there are no fewer than 108 structurally distinct conceptions of equality. And how do we …

Triggering Tinker: Student Speech In The Age Of Cyberharassment, Ari Ezra Waldman

University of Miami Law Review

This essay challenges the common assumption that public schools have limited authority to regulate cyberbullying that originates and takes place off campus. That argument presumes a level of myopia, clarity, and literalism in the law that simply does not exist. First, even assuming it existed, a geographic requirement is an outdated creature of a pre-Internet age. Cyberbullying poses unique challenges to young people, educators, and schools not contemplated when the Court decided its student speech cases. Second, I argue that a campus presence requirement for regulating any kind of off-campus cyberspeech never really existed, so any suggestion to the contrary …

Why Some Religious Accommodations For Mandatory Vaccinations Violate The Establishment Clause, Hillel Y. Levin

Scholarly Works

All states require parents to inoculate their children against deadly diseases prior to enrolling them in public schools, but the vast majority of states also allow parents to opt out on religious grounds. This religious accommodation imposes potentially grave costs on the children of non-vaccinating parents and on those who cannot be immunized. The Establishment Clause prohibits religious accommodations that impose such costs on third parties in some cases, but not in all. This presents a difficult line-drawing problem. The Supreme Court has offered little guidance, and scholars are divided.

This Article addresses the problem of religious accommodations that impose …

Harassing Speech In The Public Schools: The Validity Of Schools' Regulation Of Fighting Words And The Consequences If They Do Not, Adam A. Milani

Akron Law Review

What can - and should - schools do about the harassment which their students are suffering? While the issues of hateful and harassing speech and political correctness on college campuses have received a great deal of attention in both the mass media and legal journals, the very real problem of student-to-student harassment in grammar and high schools has only recently been given attention in either forum. More specifically, there has been little attention paid to the questions of whether (1) the First Amendment permits grammar and high schools to control harassing speech by students, (2) schools violate civil rights statutes …

An Empirical And Constitutional Analysis Of Racial Ceilings And Public Schools, Michael Heise

Michael Heise

No abstract provided.

Assessing The Efficacy Of School Desegregation, Michael Heise

Michael Heise

No abstract provided.

Are Single-Sex Schools Inherently Unequal?, Michael Heise

Michael Heise

No abstract provided.

Litigated Learning, Law's Limits, And Urban School Reform Challenges, Michael Heise

Michael Heise

This Article assesses the likely efficacy of litigation efforts seeking to enhance equal educational opportunity by improving student academic achievement in the nation's urban public schools. Past education reform litigation efforts focusing on school desegregation and finance met with mixed success. Current litigation efforts seeking to improve student academic achievement promise to be even less successful because student academic achievement involves variables and activities located further from the reach of litigation than such variables as a school's racial composition and per pupil spending levels. Moreover, efforts to improve student achievement in the nation's urban public schools--especially high poverty schools--face additional …

The Constitutional Issues Surrounding The Science-Religion Conflict In Public Schools: The Anti-Evolution Controversy, Michael M. Greenburg

Pepperdine Law Review

Since the infamous Scopes trial the matter of the constitutional validity of the "anti-evolution" laws has plagued both legal scholars and school administrators. The courts have generally invalidated legislation which bans outright the teaching of evolution in public schools, but with the advent of the "balanced treatment" acts, a revival of this litigation has begun. The author examines the constitutional analysis utilized by the courts in dealing with the "anti-evolution" and "balanced treatment" acts and provides an historical perspective of the first amendment to question the Court's response to the issue.

Avoiding Religious Apartheid: Affording Equal Treatment For Student-Initiated Religious Expression In Public Schools , John W. Whitehead

Pepperdine Law Review

No abstract provided.

Warriors, Machismo, And Jockstraps: Sexually Exploitative Athletic Hazing And Title Ix In The Public School Locker Room, Susan P. Stuart

Law Faculty Publications

Sexually exploitative athletic hazing on boys’ athletic teams is an increasingly frequent feature in the news. The physical and psychological abuse of younger team members by those who are more senior is not just humiliating but dangerous. Indeed, some athletes are charged with crimes that are committed during hazing activities. More to the point, the features of sexually exploitative hazing have all the earmarks of sexual harassment when team leaders use sexual assaults to keep younger members in their place by feminizing them or otherwise challenging their ability to conform to a hegemonic masculine sports stereotype. Athletic hazing’s part in …

Warriors, Machismo, And Jockstraps: Sexually Exploitative Athletic Hazing And Title Ix In The Public School Locker Room, Susan P. Stuart

Susan P. Stuart

Sexually exploitative athletic hazing on boys’ athletic teams is an increasingly frequent feature in the news. The physical and psychological abuse of younger team members by those who are more senior is not just humiliating but dangerous. Indeed, some athletes are charged with crimes that are committed during hazing activities. More to the point, the features of sexually exploitative hazing have all the earmarks of sexual harassment when team leaders use sexual assaults to keep younger members in their place by feminizing them or otherwise challenging their ability to conform to a hegemonic masculine sports stereotype. Athletic hazing’s part in …

Random, Suspicionless Searches Of Students' Belongings: A Legal, Empirical, And Normative Analysis, Jason P. Nance

University of Colorado Law Review

This Article provides a legal, empirical, and normative analysis of an intrusive search practice used by public school officials to prevent school crime: random, suspicionless searches of students' belongings. First, it argues that these searches are not permitted under the Fourth Amendment unless schools have particularized evidence of a substance abuse or weapons problem. Second, it provides a normative evaluation of strict security measures in schools, especially when they are applied disproportionately to minority students. Third, drawing on recent restricted data from the U.S. Department of Education's School Survey on Crime and Safety, this Article provides empirical findings that raise …

Leveling Localism And Racial Inequality In Education Through The No Child Left Behind Act Public Choice Provision, Erika K. Wilson

University of Michigan Journal of Law Reform

School district boundary lines play a pivotal role in shaping students' educational opportunities. Living on one side of a school district boundary rather than another can mean the difference between being able to attend a high-achieving resource-enriched school or having to attend a low-achieving resource-deprived school. Despite the prominent role that school district boundary lines play in dictating educational opportunities for students, remedies formulated by the federal judiciary-the institution frequently looked upon to address issues of school segregation and inequality-are ineffective in ameliorating disparities between school districts. They are ineffective because the federal judiciary evidences a doctrinal preference for localism …

Education As A Counterterrorism Tool And The Curious Case Of The Texas School Book Resolution, Diane Webber

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The Constitutional And Contractual Controversy Of Suspicionless Drug Testing Of Public School Teachers, Amanda H. Cooley, Marka B. Fleming, Gwendolyn Mcfadden Wade

Oklahoma Law Review

No abstract provided.

Race And Education: The Future Of Desegregation In The United States, Gregory Coleman Jr.

Journal of Race, Gender, and Ethnicity

No abstract provided.

Religion, Science And The Secular State: Creationism In American Public Schools, Gene Shreve

Articles by Maurer Faculty

This Article examines the current debate whether creationism may be taught in American schools given the constraints of the Establishment Clause of the First Amendment of the U.S. Constitution. The author considers some of the social and political consequences of the U.S. Supreme Court's leading cases. The article concludes by questioning whether the Supreme Court has succeeded in justifying its restrictive decisions in this controversial area.

When Students Speak Away From School How Much Does The First Amendment Hear?, Leora Harpaz

Faculty Scholarship

Controversies arising over the extent of the First Amendment speech rights of public school students while at school are resolved by an analysis of the familiar quartet of major decisions of the United States Supreme Court: Tinker, Fraser, Kuhlmeier, and Morse. While these decisions have not removed all uncertainty over the scope of student speech rights, they at least have divided these cases into distinct categories and identified the standard to be applied within each category. The wide range of judicial views on the issue of when student off-campus speech can be the basis of discipline by school authorities makes …

Ritual, Emotion, And Political Belief: The Search For The Constitutional Limit To Patriotic Education In Public Schools, Brent T. White

Publications

No abstract provided.

A Narrow Path To Diversity: The Constitutionality Of Rezoning Plans And Strategic Site Selection Of Schools After Parents Involved, Steven T. Collis

Michigan Law Review

Justice Kennedy's concurrence in Parents Involved in Community Schools v. Seattle School District Number 1 raised an important and timely constitutional issue: whether the Constitution permits K-12 public school districts not under existing desegregation orders to use site selection of new schools or rezoning plans to achieve racial diversity. Numerous scholars and journalists have interpreted Justice Kennedy's concurrence as explicitly answering the question in the affirmative. This Note argues that the opposite is true. Justice Kennedy's past jurisprudence, as well as his language in Parents Involved, favors the use of strict scrutiny. Indeed, in Parents Involved, Justice Kennedy …

Student Speech: Whose Speech Is It Anyway And Why Does The First Amendment Care?, Leora Harpaz

Faculty Scholarship

A key feature of First Amendment speech analysis in the public schools focuses on speaker identity. Speaker identity can play a crucial role in designing the First Amendment landscape on a variety of issues including the right of speakers to gain access to public school forums for expression, the right of student editors to control the content of school-sponsored publications, and the right of school administrators to permit religious speech in the public school setting. Courts faced with decisions about whether speech in the public school setting is private or government speech must consider the context in which the speech …

Silence At The Schoolhouse Gate: The Diminishing First Amendment Rights Of Public School Employees, Neal H. Hutchens

Kentucky Law Journal

No abstract provided.