Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- SelectedWorks (14)
- Selected Works (10)
- Pepperdine University (9)
- University of Colorado Law School (9)
- Maurer School of Law: Indiana University (8)
-
- Washington and Lee University School of Law (7)
- American University Washington College of Law (4)
- The University of Akron (4)
- University of Florida Levin College of Law (4)
- Cleveland State University (3)
- Notre Dame Law School (3)
- Seattle University School of Law (3)
- St. John's University School of Law (3)
- University of Georgia School of Law (3)
- University of Kentucky (3)
- University of South Carolina (3)
- Chicago-Kent College of Law (2)
- Georgia State University College of Law (2)
- Mitchell Hamline School of Law (2)
- SJ Quinney College of Law, University of Utah (2)
- Texas A&M University School of Law (2)
- University of Richmond (2)
- University of San Diego (2)
- University of the District of Columbia School of Law (2)
- Valparaiso University (2)
- Claremont Colleges (1)
- Columbia Law School (1)
- Emory University School of Law (1)
- Florida A&M University College of Law (1)
- Florida International University College of Law (1)
- Publication Year
- Publication
-
- Pepperdine Law Review (9)
- Publications (7)
- Supreme Court Case Files (7)
- Faculty Publications (5)
- Faculty Scholarship (5)
-
- Indiana Law Journal (5)
- Journal Articles (5)
- Akron Law Review (4)
- Scholarly Works (4)
- UF Law Faculty Publications (4)
- Articles by Maurer Faculty (3)
- Articles in Law Reviews & Other Academic Journals (3)
- Seattle University Law Review (3)
- Adam Lamparello (2)
- Chicago-Kent Law Review (2)
- Cleveland State Law Review (2)
- Georgia State University Law Review (2)
- Law Faculty Publications (2)
- Lewis M. Wasserman (2)
- Richard W Garnett (2)
- San Diego Law Review (2)
- Utah Law Review (2)
- Brett A Geier (1)
- Casey Scott McKay (1)
- Catholic University Law Review (1)
- David N. Wagner (1)
- Doctoral Dissertations (1)
- Educational Studies Dissertations (1)
- Elisabeth Haub School of Law Faculty Publications (1)
- Elizabeth Dale (1)
- Publication Type
- File Type
Articles 1 - 30 of 133
Full-Text Articles in Law
Navigating The First Amendment In School Choice: The Case For The Constitutionality Of Washington’S Charter School Act, Stephanie Smith
Navigating The First Amendment In School Choice: The Case For The Constitutionality Of Washington’S Charter School Act, Stephanie Smith
Washington Journal of Social & Environmental Justice
No abstract provided.
The Worst Choice For School Choice: Tuition Tax Credits Are A Bad Idea And Direct Funding Is Wiser, Michael J. Broyde, Anna G. Gabianelli
The Worst Choice For School Choice: Tuition Tax Credits Are A Bad Idea And Direct Funding Is Wiser, Michael J. Broyde, Anna G. Gabianelli
Faculty Articles
School choice is on the rise, and states use various mechanisms to implement it. One prevalent mechanism is also a uniquely problematic one: the tax credit. Tax credits are deficient at equitably distributing a benefit like school choice; they are costly, and they invite fraud. Instead of using tax credits, states opting for school choice programs should use direct funding. Direct funding will more efficiently achieve the goals of school choice because it can be regulated like any other government benefit, even if it ends up subsidizing religious private schools.
Tax credits’ prevalence is not inexplicable, of course. It is …
Just Extracurriculars?, Emily Gold Waldman
Just Extracurriculars?, Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
Extracurricular activities have been the battleground for a striking number of Supreme Court cases set at public schools, from cases involving speech to religion to drug testing. Indeed, the two most recent Supreme Court cases involving constitutional rights at public schools--Kennedy v. Bremerton School District (2022) and Mahanoy Area School District v. B.L. (2021)--both arose in the extracurricular context of school sports. Even so, the Supreme Court has never fully clarified the status of extracurricular activities themselves. Once a school offers an extracurricular activity, is participation merely a privilege? Does the fact that extracurricular activities are voluntary for students affect …
Education, The First Amendment, And The Constitution, Erwin Chemerinsky
Education, The First Amendment, And The Constitution, Erwin Chemerinsky
University of Cincinnati Law Review
No abstract provided.
Policies Regulating Gender In Schools: Companion To Identity By Committee (2022), Scott Skinner-Thompson
Policies Regulating Gender In Schools: Companion To Identity By Committee (2022), Scott Skinner-Thompson
Research Data
This document, Policies Regulating Gender in Schools: Companion to Identity by Committee (2022), https://docs.google.com/spreadsheets/d/1K6iUkLnmDfaSVykyRaZ3Yqt7XNM9leGO-MQA6p2VbV4/edit?usp=Sharing, was published as an electronic supplement to the article, Scott Skinner-Thompson, Identity by Committee, 57 Harv. C.R.-C.L. L. Rev. 657 (2022), available at https://scholar.law.colorado.edu/faculty-articles/1586.
Reconciling Self-Censorship: A Qualitative Study Of The Experiences Of University Staff And Administrators, Leigh C. Morales
Reconciling Self-Censorship: A Qualitative Study Of The Experiences Of University Staff And Administrators, Leigh C. Morales
Doctoral Dissertations
In addition to a global pandemic, the past three years have been marked by racial, social, and political unrest. These circumstances add meaningful context to examine and better understand factors that undermine free expression and contribute to self-censorship among university staff and administrators. To date, few studies have holistically explored the unique experiences of university staff and administrators with self-censorship and how this phenomenon affects their experience on college and university campuses. Understanding why staff and administrators choose to self-censor may allow for a deeper discussion about speech climate and the degree to which colleges and universities implement and uphold …
Can't Really Teach: Crt Bans Impose Upon Teachers' First Amendment Pedagogical Rights, Mary L. Krebs
Can't Really Teach: Crt Bans Impose Upon Teachers' First Amendment Pedagogical Rights, Mary L. Krebs
Vanderbilt Law Review
The jurisprudence governing K-12 teachers’ speech protection has been a convoluted hodgepodge of caselaw since the 1960s when the Supreme Court established that teachers retain at least some First Amendment protection as public educators. Now, as new so-called Critical Race Theory bans prohibit an array of hot button topics in the classroom, K-12 teachers must either preemptively censor themselves or risk running afoul of these vague bans with indeterminate legal protection. This Note proposes an elucidation of K-12 teachers’ free speech rights via a two-part test to assess the reasonability of instructional speech. Rather than analogizing K-12 teacher speech to …
Forbidden Forests: Negotiating Censorship In Children's And Young Adult Literature During A New Era Of Conservatism In 2022 And Beyond, Avila Hendricks
Forbidden Forests: Negotiating Censorship In Children's And Young Adult Literature During A New Era Of Conservatism In 2022 And Beyond, Avila Hendricks
Title III Professional Development Reports
Harambee! In Swahili, “Harambee” means “All pull together!” The impetus for this report grew out of a unifying discussion with other 2022 Children's Literature Association (ChLA) conference attendees.These discussions led to the decision to “pull together” against the rise of “extreme” conservatism and the increase of banned books across the United States.
This report offers insight into some of the issues surrounding the increase in censorship in children's and young adult literature. It includes a brief review of the recently scrutinized book, Dear Martin by Nic Stone, and it concludes with some recommendations for negotiating censorship in conservative communities.
Free Speech, Social Media, And Public Universities: How The First Amendment Limits University Sanctions For Online Expression And Empowers Students, Staff, And Faculty, Eric T. Kasper
Mitchell Hamline Law Review
No abstract provided.
Identity By Committee, Scott Skinner-Thompson
Identity By Committee, Scott Skinner-Thompson
Publications
Even in school districts with relatively permissive approaches to defining and embodying gender, the identities of transgender and gender variant students are often governed by complex regulatory protocols. Ensuring that a student is able to live their gender at school can involve input from a host of purported stakeholders including medical providers, mental health professionals, school administrators, the student’s parents, and even the broader community. In essence, trans and gender variant students’ identities are governed by committee, which reduces students’ control over their lives, inhibits self-determination, constricts the scope of permissible gender identities, subjects them to incredible degrees of state …
In The Name Of Diversity: Why Mandatory Diversity Statements Violate The First Amendment And Reduce Intellectual Diversity In Academia, Daniel M. Ortner
In The Name Of Diversity: Why Mandatory Diversity Statements Violate The First Amendment And Reduce Intellectual Diversity In Academia, Daniel M. Ortner
Catholic University Law Review
In the 1950s and 1960s in many parts of the country, a professor could be fired or never hired if he refused to denounce communism or declare loyalty to the United States Constitution. The University of California system took the lead in enforcing these loyalty oaths. These loyalty oaths were challenged all the way up to the United States Supreme Court and were soundly rejected, establishing the centrality of academic freedom and open inquiry on the university campus. So why are loyalty oaths making their resurgence in the form of mandatory diversity statements? Universities have begun requiring faculty members to …
Campus Free Speech In The Mirror Of Rising Anti-Semitism, Harry G. Hutchison
Campus Free Speech In The Mirror Of Rising Anti-Semitism, Harry G. Hutchison
St. Mary's Law Journal
Abstract forthcoming.
Special Solicitude: Religious Freedom At America’S Public Universities, William E. Thro
Special Solicitude: Religious Freedom At America’S Public Universities, William E. Thro
Office of Legal Counsel Academic Publications
Rejecting the Obama Administration’s argument that the First Amendment requires identical treatment for religious organizations and secular organizations, the Supreme Court held such a “result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.” (Hosanna-Tabor, 565 U.S. at 189). This “special solicitude” guarantees religious freedom from the government in all aspects of society, but particularly on public university campuses. At a minimum, religious expression and religious organizations must have equal rights with secular expression and secular organizations. In some instances, religious expression and religious expression …
Is Free Speech An Academic Value? Is Academic Freedom A Constitutional Value?, Daniel Gordon
Is Free Speech An Academic Value? Is Academic Freedom A Constitutional Value?, Daniel Gordon
FIU Law Review
No abstract provided.
“Dress Coded” A Distraction And Disruption: Sex-And-Race-Based Discrimination And Speech Restriction In Public School Dress Codes, Elizabeth "Bitsy" Skerry
“Dress Coded” A Distraction And Disruption: Sex-And-Race-Based Discrimination And Speech Restriction In Public School Dress Codes, Elizabeth "Bitsy" Skerry
Upper Level Writing Requirement Research Papers
No abstract provided.
Private Schools' Role And Rights In Setting Vaccination Policy: A Constitutional And Statutory Puzzle, Hillel Y. Levin
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 …
Tinkering With Circuit Conflicts Beyond The Schoolhouse Gate, Stephen Wermiel
Tinkering With Circuit Conflicts Beyond The Schoolhouse Gate, Stephen Wermiel
Articles in Law Reviews & Other Academic Journals
No abstract provided.
When Legislatures Become The Ally Of Academic Freedom: The First State Intellectual Diversity Statute And Its Effect On Academic Freedom, Patrick M. Garry
When Legislatures Become The Ally Of Academic Freedom: The First State Intellectual Diversity Statute And Its Effect On Academic Freedom, Patrick M. Garry
South Carolina Law Review
No abstract provided.
Bakke’S Lasting Legacy: Redefining The Landscape Of Equality And Liberty In Civil Rights Law, Rachel F. Moran
Bakke’S Lasting Legacy: Redefining The Landscape Of Equality And Liberty In Civil Rights Law, Rachel F. Moran
Faculty Scholarship
The fortieth anniversary of Regents of the University of California v. Bakke is worth commemorating simply because the decision has survived. The United States Supreme Court’s opinion upholding the use of race in admissions has had remarkable staying power, even as other programs of affirmative action, for example, in government contracting, have been struck down as unconstitutional. That longevity might seem surprising because Bakke set forth an exacting standard of strict scrutiny under equal protection law that renders all race-based classifications suspect, whether government officials are motivated by benign or invidious purposes. That standard is one that few programs can …
No Place For Speech Zones: How Colleges Engage In Expressive Gerrymandering, A. Celia Howard
No Place For Speech Zones: How Colleges Engage In Expressive Gerrymandering, A. Celia Howard
Georgia State University Law Review
This note takes a critical look at the shortcomings of the current tests applied to speech zone litigation as well as the constitutional violations that occur when public schools carve out speech areas. Part I examines the evolution of First Amendment law in education, with a focus on university free speech zones. Part II analyzes the convoluted First Amendment jurisprudence, suggesting that the time, place, and manner test, typically used in conjunction with a forum analysis when examining the constitutionality of speech zones, allows universities to practice what is known as “expressive gerrymandering.” Finally, Part III proposes that courts eliminate …
Speech Across Borders, Jennifer Daskal
Speech Across Borders, Jennifer Daskal
Articles in Law Reviews & Other Academic Journals
As both governments and tech companies seek to regulate speech online, these efforts raise critical, and contested, questions about how far those regulations can and should extend. Is it enough to take down or delink material in a geographically segmented way? Or can and should tech companies be ordered to takedown or delink unsavory content across their entire platforms—no matter who is posting the material or where the unwanted content is viewed? How do we deal with conflicting speech norms across borders? And how do we protect against the most censor-prone nation effectively setting global speech rules? These questions were …
"Tinkering" With Student Rights: School Walkouts And The Implications Of Discipline Practice And Policy On Students' Right To Protest, Hannah Weissler
"Tinkering" With Student Rights: School Walkouts And The Implications Of Discipline Practice And Policy On Students' Right To Protest, Hannah Weissler
Scripps Senior Theses
In this study, I examine the extent to which students’ rights to free speech and expression were violated in response to the nationwide school walkouts that took place during the spring of 2018. Students hold the right to political speech and expression under the landmark Supreme Court Case, Tinker v. Des Moines (1969). However, the rights students maintain to participate in protest during school hours is somewhat unclear. Using a two-pronged case study analysis, I explore the question of student rights and potential violations in the face of protest through examining school disciplinary responses alongside disciplinary policy and disciplinary policy …
The Purpose (And Limits) Of The University, John Inazu
The Purpose (And Limits) Of The University, John Inazu
Utah Law Review
Scholars of the university have produced volumes about growing pressures on the coherence and purpose of institutions of higher education. Meanwhile, legal scholars’ writing about the university has typically focused on its First Amendment dimensions. This Article links insights from these two groups of scholars to explore the purpose of the university and defend it against increasing technological, ideological, and cultural pressures. It argues that a better understanding of the relationship between the First Amendment and the university can help strengthen the coherence of the university’s purpose against these pressures. The connection between the First Amendment and institutional purpose is …
Sb 339 - Education, Daniel F. Barrett, Alexander Hegner
Sb 339 - Education, Daniel F. Barrett, Alexander Hegner
Georgia State University Law Review
The Act amends the statutes in the Georgia Code applicable to the University System and Board of Regents statutes in the Georgia Code. It adds new sections that place affirmative requirements on the Board of Regents to adopt and publish new policies, which aim to encourage the dissemination of free speech across university campuses. Further, the Act directs that universities must implement disciplinary sanctions for anyone subject to the jurisdiction of the University System who interferes with the free speech of invited speakers and others on campus. Finally, the Board of Regents must publish annual reports regarding any barriers to …
Laying Siege To The Ivory Tower: Resource Allocation In Response To The Heckler's Veto On University Campuses, Macklin W. Thornton
Laying Siege To The Ivory Tower: Resource Allocation In Response To The Heckler's Veto On University Campuses, Macklin W. Thornton
San Diego Law Review
High in the towers of academia, the lofty ideals of free speech are tossed around with a deceptive ease. However, as legal minds grapple with heady legal doctrines, free speech has concrete consequences down at the foot of those towers. At this ivory base, the property line between the university and the community blur. Students and nonstudents assemble and deliver conflicting speech that, at times, foments violence. Molotov cocktails, gun shots, broken windows, disgruntled students. All attempts to trigger the dreaded heckler’s veto—an attempt the government has an obligation to prevent. In addition to the public relations disasters grown from …
Culture Wars On Campus: Academic Freedom, The First Amendment, And Partisan Outrage In Polarized Times, Jason M. Shepard, Kathleen B. Culver
Culture Wars On Campus: Academic Freedom, The First Amendment, And Partisan Outrage In Polarized Times, Jason M. Shepard, Kathleen B. Culver
San Diego Law Review
After a California community college professor called the election of President Donald Trump an “act of terrorism” in her classroom the week after the vote, a student-recorded viral video sparked a national conservative media firestorm. Critics said the professor should be fired for outrageous liberal bias, while supporters defended her comments as being protected by academic freedom and the First Amendment. The student, meanwhile, was suspended for his unauthorized recording while defenders decried his punishment as evidence of anti-conservative discrimination and harassment. By examining tensions between faculty and student speech rights, the use of technologies to take ideological disagreements viral …
Professional Standards And The First Amendment In Higher Education: When Institutional Academic Freedom Collides With Student Speech Rights, Clay Calvert
St. John's Law Review
(Excerpt)
Using the decisions in Keefe, Oyama and Tatro as analytical springboards, this Article examines rising tensions between institutional academic freedom and the First Amendment speech rights of college students. Specifically, the friction addressed here occurs when universities enforce external professional standards on students within their curricula. Initially, Part I provides a primer on institutional academic freedom. Part II then contrasts the vastly deferential Hazelwood approach to professional-standards disputes embraced by the Eighth Circuit in Keefe with the somewhat more rigorous ones adopted by the Ninth Circuit in Oyama and Minnesota’s Supreme Court in Tatro.
Part III then …
Student Protests And Academic Freedom In An Age Of #Blacklivesmatter, Philip Lee
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 …
An Examination Of The Instruction Of Religion Clause Issues In Massachusetts Teacher Education Programs, Matthew E. Henry
An Examination Of The Instruction Of Religion Clause Issues In Massachusetts Teacher Education Programs, Matthew E. Henry
Educational Studies Dissertations
The prevailing research, as well as reported complaints of academic, civic, personal, and social harm, indicates that public school teachers do not exhibit the professional knowledge, skills, and attitudes grounded in the religion clauses of the U.S. Constitution. This study investigated how TEPs in the Commonwealth of Massachusetts document their instruction of preservice teachers on religion clause issues as they apply to grade 6-12 content area pedagogy, curriculum, and professional ethos. The institutional documents presented to preservice teachers were collected from four teacher education programs in the Commonwealth. An evaluation tool— synthesized from the leading scholarship and research on the …
"To Hell In A Handbasket": Teachers, Free Speech, And Matters Of Public Concern In The Social Media World, Jessica O. Laurin
"To Hell In A Handbasket": Teachers, Free Speech, And Matters Of Public Concern In The Social Media World, Jessica O. Laurin
Indiana Law Journal
This Note argues that courts should narrow the scope of examined speech and place little weight on the amount of media attention that the speech received. Although courts sometimes reject First Amendment protection on the Pickering balancing test instead of the public concern issue, the public concern requirement is a threshold issue that plays a critical role in successful First Amendment claims. Accordingly, courts need to revisit the public concern doctrine to ensure that its analysis is sound and yields the correct outcome.
Part I provides background concerning retaliation claims, criticism of the public concern requirement, and special issues that …