Law Commons^™

Promoting Inclusion Through Exclusion: Higher Education's Assault On The First Amendment, Adam Lamparello

Adam Lamparello

To obtain a meaningful educational experience and achieve the benefits of a diverse student body, students should confront beliefs they find abhorrent and discuss topics that bring discomfort. As it stands now, universities are transforming classrooms and campuses into sanctuaries for the over-sensitive and shelters for the easily-offended. In so doing, higher education is embracing a new, and bizarre, form of homogeneity that subtly coerces faculty members and students into restricting, not expressing, their views, and creating a climate that favors less, not more, expressive conduct. This approach undermines First Amendment values and further divorces higher education from the real …

Mother May I? No, You May Not! Parental Consent Requirements For Students To Participate In Student-Led Clubs At Public Schools, Kelly A. Sherrill Linkous

Kelly A. Sherrill Linkous

This article considers the constitutionality of laws or policies requiring parental consent for student participation in school-based clubs or organizations, along with their consistency with the language in the federal Equal Access Act. It weighs the dueling parental right to direct the upbringing of their children against students’ constitutional speech and religious exercise rights within the schoolhouse gate. As a vehicle to analyze the constitutionality of all similarly-worded state laws and school district policies, the article examines a Georgia statute mandating parental consent for student participation in clubs. The Georgia statute is similar to Oklahoma’s and Utah’s statutes, as well …

The Internet Is The New Public Forum: Why Riley V. California Supports Net Neutrality, Adam Lamparello

Adam Lamparello

Technology has ushered civil liberties into the virtual world, and the law must adapt by providing legal protections to individuals who speak, assemble, and associate in that world. The original purposes of the First Amendment, which from time immemorial have protected civil liberties and preserved the free, open, and robust exchange of information, support net neutrality. After all, laws or practices that violate cherished freedoms in the physical world also violate those freedoms in the virtual world. The battle over net neutrality is “is absolutely the First Amendment issue of our time,” just as warrantless searches of cell phones were …

Nigger Manifesto: Ideological And Intellectual Discrimination Inside The Academy, Ellis Washington

Ellis Washington

Draft – 22 March 2014

Nigger Manifesto

Ideological Racism inside the American Academy

By Ellis Washington, J.D.

Abstract

I was born for War. For over 30 years I have worked indefatigably, I have labored assiduously to build a relevant resume; a unique curriculum vitae as an iconoclastic law scholar zealous for natural law, natural rights, and the original intent of the constitutional Framers—a Black conservative intellectual born in the ghettos of Detroit, abandoned by his father at 18 months, who came of age during the Detroit Race Riots of 1967… an American original. My task, to expressly transcend the ubiquitous …

The Professor As Whistleblower: The Tangled World Of Constitutional And Statutory Protections, Jennifer Bard

Jennifer Bard

Like Phil Robertson, the patriarch of the Duck Dynasty family, to Edward Snowden, the NSA leaker, many professors at U.S. colleges and universities are surprised to find how little protection they have from the adverse consequences of their speech. The First Amendment is says nothing about either academic freedom or whistleblowing and it has been left to the Supreme Court to develop a doctrine as to when and if a professor’s speech is entitled to Constitutional Protection. This article considers the broad topic of protection for speech by professors other than that directly related to the views they express on …

Omnipresent Student Speech And The Schoolhouse Gate: Interpreting Tinker In The Digital Age, Watt L. Black Jr.

Watt Lesley Black Jr.

This paper focuses primarily on federal circuit level decisions regarding public school district's ability to discipline students who engage in electronic speech while off-campus and not involved in school activities. Particular attention is paid to the question of whether and how appeals courts have been willing to apply the "material and substantial disruption" standard from the Supreme Court's 1969 Tinker v. Des Moines decision to speech occurring off-campus. The paper, which is targeted toward both legal scholars and school administrators, draws together the common threads from the various circuits and weaves them into a set of guidelines for school administrators …

Homeschooling As A Constitutional Right: A Claim Under A Close Look At Meyer And Pierce And The Lochner-Based Assumptions They Made About State Regulatory Power, David M. Wagner

David N. Wagner

In 2012, a German family of would-be homeschoolers, the Romeikes, fled to the U.S. to escape fines and child removal for this practice, which has been illegal in Germany since 1938. The Sixth Circuit, in denying their asylum request, conspicuously did not slam the door on the possibility that if the Romeikes were U.S. citizens, they might have a right to homeschool. This article takes up that question, and argues that Meyer and Pierce, the classic cases constitutionalizing the right to use private schools, point beyond those holdings towards a right to homeschool; and that the permissible state regulations on …

Texas Cheerleaders And The First Amendment: Can You Cheer For God At A Football Game?, Brett A. Geier

Brett A Geier

The Kountze High School Cheerleaders in Kountze, Texas last year placed religious messages on run-through banners at the pre-game ceremonies for its football team. When district officials directed the cheerleaders to cease placing the messages on the banners, the cheerleaders sought relief under the Free Exercise Clause and free speech doctrine. In the spring of 2013, the District Court enjoined the school from preventing the cheerleaders from placing religious messages on the banners stating that the act did not violated the Establishment Clause. This particular case has multiple issues that must be addressed: First Amendment conflict; free speech fora, religious …

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education LEWIS M. WASSERMAN Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education Lewis M. Wasserman Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

Gay Talk: Protecting Free Speech For Public School Teachers, Stephen J. Elkind, Peter D. Kauffman

Stephen J Elkind

In Garcetti v. Ceballos, the Supreme Court held that public employees are not entitled to free speech when speaking “pursuant to their official duties.” In most situations, this strips teachers of First Amendment protection when they discuss controversial subjects, such as homosexuality, with their students. To ensure their classrooms are tolerant and accepting environments for homosexual and questioning youth, teachers need free speech protection against adverse employment action their schools might take. The Garcetti Court, acknowledging that “expression related to academic scholarship and classroom instruction implicates” unique constitutional concerns, explicitly left open whether its decision applied in the education …

Tactics, Strategies & Battles—Oh My!: Perseverance Of The Perpetual Problem Regarding Preaching To Public School Pupils & Why It Persists, Casey S. Mckay

Casey Scott McKay

After reviewing the history of the religious war on Darwin’s Theory of Evolution, my article, “Tactics, Strategies & Battles—Oh My!: Perseverance of the Perpetual Problem Regarding Preaching to Public School Pupils & Why it Persists,“ examines why such a seemingly well-settled issue survives and, to some extent, succeeds.

First, by exploiting common misconceptions among the American public, lawmakers are able to take advantage of ignorance driven by strong emotions. Next, religious special interests groups, with seemingly unlimited funds, thrust propaganda supported by worldwide media reinforcement on an already vulnerable American public. Thus, irresponsible state legislators, caught between a rock and …

Testing The Social Media Waters - First Amendment Entanglement Beyond The Schoolhouse Gates, Lily M. Strumwasser

Lily M Strumwasser

Dear Editor:

I am a third-year student at The John Marshall Law School in Chicago, Illinois, where I serve as the executive student publications editor of The John Marshall Law Review. In September 2013, I will work as an associate at Seyfarth Shaw in its labor and employment practice group. I am writing to submit my article, "Testing The Social Media Waters - First Amendment Entanglement Beyond The Schoolhouse Gates" My article considers the contours of student free speech rights within the context of public schools. I think and hope you will find it to be interesting and …

Punishment & Student Speech: Straining The Reach Of The First Amendment, James Ianelli

James Ianelli

No abstract provided.