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Full-Text Articles in Law
Tax Benefits And Fairness In K–12 Education, Linda Sugin
Tax Benefits And Fairness In K–12 Education, Linda Sugin
Faculty Scholarship
This Article examines the tax law’s subsidies for inequality and segregation in primary and secondary education, analyzing the federal charitable deduction and education savings plans, and state tax credits for education. It argues that the tax system diverts funds from traditional public education into private education, fostering economic, racial, religious, and political separation. The tax law also operates to increase resource inequality within public education by subsidizing schools that affluent children attend. In a novel analysis, the Article contends that the jurisprudence around the charitable deduction for education—though longstanding—is legally incoherent, and argues that no deduction should ever be allowed …
Bigotry, Civility, And Reinvigorating Civic Education: Government's Formative Task Amidst Polarization, Linda C. Mcclain
Bigotry, Civility, And Reinvigorating Civic Education: Government's Formative Task Amidst Polarization, Linda C. Mcclain
Faculty Scholarship
In the U.S. and around the globe, concerns over a decline in civility and tolerance and a surge in lethal extremist violence motivated by hatred of religious and racial groups make condemning—and preventing—hatred and bigotry seem urgent. What meaning can the ideal of e pluribus unum (“out of many one”) have in this fraught and polarized environment? Within the U.S., a long line of jurists, politicians, and educators have invoked civic education in public schools as vital to preserving constitutional democracy and a healthy pluralism. How can schools carry out such a civic role in times of democratic discord and …
When Students Speak Away From School How Much Does The First Amendment Hear?, Leora Harpaz
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 …
Student Speech: Whose Speech Is It Anyway And Why Does The First Amendment Care?, Leora Harpaz
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 …
Beyond The Schoolhouse Gate: Do Student First Amendment Rights Apply To Classroom Assignments?, Leora Harpaz
Beyond The Schoolhouse Gate: Do Student First Amendment Rights Apply To Classroom Assignments?, Leora Harpaz
Faculty Scholarship
While it has long been apparent that the First Amendment protection for freedom of expression limits the discretion of public school teachers and administrators, it has been assumed that those limitations do not constrain equally all aspects of a school's operation. One area that has seemed somewhat immune from First Amendment free speech oversight has been the pedagogic choices made by schools in defining their own educational objectives. Public schools have been permitted to select curricular materials for use in their classrooms and have been able to evaluate whether students have fulfilled course requirements without concern that they may be …
High Poverty Schools And The Distribution Of Teachers And Principals, Charles T. Clotfelter, Helen F. Ladd, Jacob L. Vigdor, Justin Wheeler
High Poverty Schools And The Distribution Of Teachers And Principals, Charles T. Clotfelter, Helen F. Ladd, Jacob L. Vigdor, Justin Wheeler
Faculty Scholarship
Although many factors combine to make a successful school, most people agree that quality teachers and school principals are among the most important requirements for success, especially when success is defined by the ability of the school to raise the achievement of its students. The central question for this study is how the quality of the teachers and principals in high-poverty schools in North Carolina compares to that in the schools serving more advantaged students. A related question is why these differences emerge. The consistency of the patterns across many measures of qualifications for both teachers and principals leaves no …
The Paper Wars: First Amendment Challenges To School Material Distribution Policies, Leora Harpaz
The Paper Wars: First Amendment Challenges To School Material Distribution Policies, Leora Harpaz
Faculty Scholarship
Public schools are faced with an array of requests seeking permission to distribute material on school property. These requests may come from students, teachers or outside organizations. To respond to these requests, some school districts have adopted written policies to guide their determinations while others lack formal policies and respond on an ad hoc basis. Whether based on formal or informal policies, in deciding whether to permit distribution school officials typically take into account a variety of factors including the content of the material, the identity of the individual or group seeking permission and the time, place or manner of …
Too Much, Too Little: Religion In The Public Schools, Jay D. Wexler
Too Much, Too Little: Religion In The Public Schools, Jay D. Wexler
Faculty Scholarship
The current state of religion in the nation's public schools is odd indeed. On the one hand, the courts have consistently held that public school teachers may not lead their students in an organized prayer. Yet on the other hand, most people seem to agree that there is no problem with those same teachers leading their students in the Pledge of Allegiance, an exercise that asks students on a daily basis, not only to explicitly recognize the existence of a single god, but also to link the nation's very identity to that highly contested theological proposition. Likewise, despite the fact …
The Ten Commandments Return To School And Legal Controversy Follows Them, Leora Harpaz
The Ten Commandments Return To School And Legal Controversy Follows Them, Leora Harpaz
Faculty Scholarship
The United States Supreme Court confronted the issue of a classroom display of the Ten Commandments almost 25 years ago in the case of Stone v. Graham. In that case, the Court struck down a Kentucky statute that required the posting of the Ten Commandments in all public school classrooms. In a per curiam opinion, the Court summarily reversed a decision of the Supreme Court of Kentucky and concluded that the statute violated the First Amendment's Establishment Clause because it had no secular purpose. The outcomes of recent judicial decisions considering the constitutionality of the display of the Ten Commandments …
Last Wave: The Rise Of The Contingent School District, The , Aaron J. Saiger
Last Wave: The Rise Of The Contingent School District, The , Aaron J. Saiger
Faculty Scholarship
Spurred in part by state court cases holding that states bear a constitutional duty to educate all children adequately, and making creative use of the arguments of school choice advocates, the states and other policy actors have in recent years recast the problem of deficient schooling as one of government structure rather than one of individual rights. This reorientation has contributed to a dramatic erosion of the traditional role of the local school district as the leading administrative, policymaking, and legal unit of American school government. A new, polyarchic distribution of power has arisen in place of district primacy, bearing …
The Equal Access Act: Still Controversial After All These Years, Leora Harpaz
The Equal Access Act: Still Controversial After All These Years, Leora Harpaz
Faculty Scholarship
Over its twenty-year history, the Equal Access Act has continued to spark controversy. Despite a large number of court decisions that have interpreted the scope of the statute, those controversies have not yet subsided nor are they likely to for the foreseeable future. Interpretation of the Equal Access Act is complicated by ambiguities in the statute's language and the complex relationship that exists between the statute and the First Amendment's prohibition on religious establishments combined with its protection for freedom of expression. The delicate constitutional balancing act that the statute attempts to accomplish complicates the task of statutory interpretation in …
The Equal Access Act: Still Controversial After All These Years, Leora Harpaz
The Equal Access Act: Still Controversial After All These Years, Leora Harpaz
Faculty Scholarship
Over its twenty-year history, the Equal Access Act has continued to spark controversy. Despite a large number of court decisions that have interpreted the scope of the statute, those controversies have not yet subsided nor are they likely to for the foreseeable future. Interpretation of the Equal Access Act is complicated by ambiguities in the statute's language and the complex relationship that exists between the statute and the First Amendment's prohibition on religious establishments combined with its protection for freedom of expression. The delicate constitutional balancing act that the statute attempts to accomplish complicates the task of statutory interpretation in …
With Strings Attached: The Limits On Local Control, Richard Briffault
With Strings Attached: The Limits On Local Control, Richard Briffault
Faculty Scholarship
In a December 2003 decision, a Colorado trial court judge invalidated the state's new school voucher program. The decision was unusual in that the court relied not on traditional separation-of-church-and-state concerns, but instead on a provision of the Colorado state constitution that vests control over public education in local school boards. The court held that by failing to give local school boards any" input whatsoever into the instruction to be offered by the private schools" that accepted voucher students, the state had violated the constitutional provision that grants local boards "control of instruction in the public schools of their respective …
Essay: Pledging Allegiance, Michael K. Steenson
Essay: Pledging Allegiance, Michael K. Steenson
Faculty Scholarship
This Essay focuses on the Pledge of Allegiance requirement and its place in public schools. It begins with an analysis of a typical, but certainly not isolated, approach of the Minnesota Legislature, following September 11, in passing a bill that required recitation of the Pledge. This Essay then moves to a discussion of the events surrounding the 1943 United States Supreme Court decision in West Virginia State Board of Education v. Barnette and how Barnette has subsequently been interpreted. Finally, this Essay discusses the probable impact of the Minnesota Constitution on the Pledge Bill, should it pass in this legislative …