Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 47

Full-Text Articles in Law

Title Ix & Menstruation, Margaret E. Johnson, Emily Gold Waldman, Bridget J. Crawford Jul 2020

Title Ix & Menstruation, Margaret E. Johnson, Emily Gold Waldman, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

“Oh no. Could I borrow a tampon or pad?” These (or similar) words are familiar to almost everyone who has ever had a period. Even for adults, menstruation can at times be a challenge. For some schoolchildren, it can be an insurmountable obstacle to receiving an education. Students are subject to constant observation by classmates and teachers; they may not have autonomous access to a bathroom during the school day; or they may not be able to afford menstrual products. They may experience menstruation-related peer harassment, restrictive school policies, a lack of access to menstrual products, and inadequate menstruation-related education ...


Good Initiative, Bad Judgement: The Unintended Consequences Of Title Ix's Proportionality Standard On Ncaa Men's Gymnastics And The Transgender Athlete, Jeffrey Shearer Jun 2020

Good Initiative, Bad Judgement: The Unintended Consequences Of Title Ix's Proportionality Standard On Ncaa Men's Gymnastics And The Transgender Athlete, Jeffrey Shearer

Pace Intellectual Property, Sports & Entertainment Law Forum

Title IX fails to provide the tools or guidelines necessary to equalize opportunities for all student athletes in the collegiate setting despite the government’s continuous effort to explain the law. This failure is because judicial precedent has largely developed around the binary proportionality test of compliance. Title IX was originally intended to equalize educational opportunities for male and female students in order to remedy past discrimination in our society. However, the application of Title IX has frequently created fewer opportunities in athletics due to the unintended relationship between the proportionality standard and the social phenomenon that is the commercialization ...


Walking Out: Schools, Students, And Civil Disobedience, Michelle S. Simon Jan 2019

Walking Out: Schools, Students, And Civil Disobedience, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

This Article begins in Part I by reviewing the history and impact of youth civil disobedience and the special issues school walkouts raise. Part II then discusses the legal doctrines that guide school administrators and courts as they aim to strike a suitable balance between free expression and the day-to day operations of a school. Part III analyzes the different approaches school districts have taken, and offers specific advice to school districts dealing with future walkouts. Part IV cautions that the only constitutionally permitted response by school districts is to subject students to the same consequences they would face for ...


Assessing Students' Civil Rights Claims Against School Resource Officers, Kerrin C. Wolf May 2018

Assessing Students' Civil Rights Claims Against School Resource Officers, Kerrin C. Wolf

Pace Law Review

Police officers stationed in public schools, commonly referred to as school resource officers (SROs), have become commonplace in the United States over the past twenty-five years. Their primary responsibility is to maintain order and safety in schools, but they also serve as counselors and mentors for students, and teach classes related to drug and alcohol abuse, gang avoidance, and other topics. SROs’ presence in schools raises important legal questions because they interact with students on a daily basis and are directly involved in schools’ efforts to control student behavior through school discipline and security. Additionally, a series of Supreme Court ...


Campus Misconduct Proceeding Outcome Notifications: A Title Ix, Clery Act, And Ferpa Compliance Blueprint, James T. Koebel Sep 2017

Campus Misconduct Proceeding Outcome Notifications: A Title Ix, Clery Act, And Ferpa Compliance Blueprint, James T. Koebel

Pace Law Review

This Article analyzes and attempts to bring order to the interaction of Title IX and OCR’s current guidance thereunder, the Clery Act and its recent Campus SaVE Act amendments, and FERPA when an institution provides a complainant, respondent, or member of the general public notice of the outcome of a misconduct proceeding for any offense defined under those laws. This Article is limited in scope and does not address all confidentiality issues that may arise during a postsecondary misconduct investigation or hearing, such as the disclosure of investigative reports. Part I briefly summarizes Title IX, the Clery Act, and ...


How Organizing Collegiate Student-Athletes Under The National Labor Relations Act With The Ncaa As A Joint Employer Can Lead To Significant Changes To The Student-Athlete Compensation Rules, Andrew Gruna Jun 2017

How Organizing Collegiate Student-Athletes Under The National Labor Relations Act With The Ncaa As A Joint Employer Can Lead To Significant Changes To The Student-Athlete Compensation Rules, Andrew Gruna

Pace Intellectual Property, Sports & Entertainment Law Forum

This paper will provide an overview of how National Labor Relations Board cases of Northwestern University and Browning Ferris combined with the analysis presented in the National Labor Relations Board General Counsel Memorandum GC 17-01: General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context could impact the laws behind unionization, the contracts of university athletes, and, ultimately through contract negotiations, reintroduce the discussion regarding compensation of student-athletes.


The Insufficiency Of The Law Surrounding Food Allergies, Aimee Nienstadt Apr 2016

The Insufficiency Of The Law Surrounding Food Allergies, Aimee Nienstadt

Pace Law Review

This paper proceeds in five parts. First, I will give an overview of food allergies. The second section will discuss legal protections at the federal level, including the ADA and other specific federal laws that are aimed at food allergies. The third section will discuss legal protections at the state level, including state laws directed at school districts and state laws directed at restaurants. The fourth section will discuss actions by the private/non-profit sector. The final section of my paper will discuss further necessary legislative changes for people with food allergies.


The Dimming Light Of The Idea: The Need To Reevaluate The Definition Of A Free Appropriate Public Education, Sarah Lusk Nov 2015

The Dimming Light Of The Idea: The Need To Reevaluate The Definition Of A Free Appropriate Public Education, Sarah Lusk

Pace Law Review

This paper has five parts. Part I examines Individuals with Disabilities Education Act (“IDEA”), explains the definition of a free appropriate public education (“FAPE”), and explores IDEA’s protections for special-education students facing school discipline. Part II discusses the Supreme Court’s interpretation of IDEA and FAPE, as well as how lower courts have interpreted IDEA. Part III focuses on how schools implement IDEA and treat special-education students. Part IV explores the disproportionate effects of school suspension on disabled students and explains the negative impacts, such as the Pipeline. Part V argues that Congress and the Supreme Court must reevaluate ...


Protecting Diversity In The Ivory Tower With Liability Rules, Ting Wang Jun 2015

Protecting Diversity In The Ivory Tower With Liability Rules, Ting Wang

Pace Law Review

The two sides of the debate over race-based affirmative action in higher education tell two distinct stories – one of diversity’s benefits and the other of affirmative action’s burdens. In Grutter v. Bollinger, 539 U.S. 306 (2003), the Supreme Court found the benefits to be so compelling to society that they were deemed to outweigh the burdens. Voters in Michigan and other states found otherwise and the Court in Schuette v. Coalition to Defend Affirmative Action, 572 U.S. — (2014) upheld their right to ban race-conscious admissions. Paradoxically, since the use of race as a “plus factor” by ...


Tinkering With Success: College Athletes, Social Media And The First Amendment, Mary Margaret Meg Penrose May 2015

Tinkering With Success: College Athletes, Social Media And The First Amendment, Mary Margaret Meg Penrose

Pace Law Review

Good law does not always make good policy. This article seeks to provide a legal assessment, not a policy directive. The policy choices made by individual institutions and athletic departments should be guided by law, but absolutely left to institutional discretion. Many articles written on college student-athletes’ social media usage attempt to urge policy directives clothed in constitutional analysis.

In this author’s opinion, these articles have lost perspective – constitutional perspective. This article seeks primarily to provide a legal and constitutional assessment so that schools and their athletic departments will have ample information to then make their own policy choices.


Show And Tell?: Students' Personal Lives, Schools, And Parents, Emily Gold Waldman Feb 2015

Show And Tell?: Students' Personal Lives, Schools, And Parents, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Public schools learn about their students' personal lives in many ways. Some are passive: a teacher observes a student kissing someone, or overhears a conversation among friends. But schools also engage in more active information-gathering about students' personal lives, through surveys and informal conversations between students and teachers, administrators, school psychologists, counselors, coaches, and other personnel. This Article explores the competing privacy considerations that result from such encounters. Once schools have learned highly personal information about their students, does it violate those students' privacy rights to disclose that information to their parents? Or does keeping the information secret violate the ...


Ratings Fetishism, Leslie Yalof Garfield Jan 2015

Ratings Fetishism, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

The obsession with increasing the reputational rankings of American colleges and universities more detrimentally impacts race-based admissions policies than does Supreme Court doctrine. It is no secret that many schools inflate, misleadingly report, or falsify records in order to pander to rankings systems like U.S. News and World Report (“U.S. News”). These systems weigh a school’s mean standardized test scores (SAT and/or ACT) heavily as one of the factors for assigning a rank. Thus, the incentive among schools playing the ratings game is to admit students with the highest SAT scores. But, if one agrees with ...


To Yoder Or Not To Yoder? How The Spending Clause Holding In National Federation Of Independent Business V. Sebelius Can Be Used To Challenge The No Child Left Behind Act, Christopher Roma Dec 2014

To Yoder Or Not To Yoder? How The Spending Clause Holding In National Federation Of Independent Business V. Sebelius Can Be Used To Challenge The No Child Left Behind Act, Christopher Roma

Pace Law Review

States such as California, Texas, Montana, Nebraska and Pennsylvania all have either declined to apply for waivers out of the testing, accountability, and penalty schemes of No Child Left Behind; or, have had their applications rejected by the Department of Education. This Article argues that these states would have a legitimate challenge to NCLB as unconstitutionally coercive based on the precedent of Sebelius. As discussed more in the sections that follow, not only is NCLB and Title I the largest federal funding program behind Medicaid, it also shares many of the characteristics that the opinions in Sebelius found to be ...


Recognizing Education Rights In India And The United States: All Roads Lead To The Courts?, Ashley Feasley Nov 2014

Recognizing Education Rights In India And The United States: All Roads Lead To The Courts?, Ashley Feasley

Pace International Law Review

The approaches of United States and India take disparate form: India has recognized the right to education and is attempting to implement the right, whereas the United States has not formally recognized the right to education itself but has acknowledged a limited right to educational opportunity, but has implemented some sort of right to education unequally by relying on the states to guarantee and implement some kind of remedy. This paper aims to evaluate the American and Indian approaches towards the right to education. Section II discusses the interrelatedness of social and economic and civil and political rights and the ...


Intra-Group Diversity In Education: What If Abigail Fisher Were An Immigrant . . ., Dagmar Rita Myslinska Sep 2014

Intra-Group Diversity In Education: What If Abigail Fisher Were An Immigrant . . ., Dagmar Rita Myslinska

Pace Law Review

In Part I, this Article briefly describes some aspects of white immigrants’ educational experience (including extracurricular involvement and parental roles), exposing how it reflects immigrants’ lack of access to the cultural capital of native-born whites. The Article exposes some unique challenges faced by Caucasian immigrants in high school, during the college application process, and in taking advantage of college opportunities that amplify social benefits. These experiences are contrasted with those of American-born students who benefit from their families’ access to social capital that enables them to take advantage of its replication in college.

Part II addresses how some of the ...


I’M The One Making The Money, Now Where’S My Cut? Revisiting The Student-Athlete As An “Employee” Under The National Labor Relations Act, John J. Leppler Mar 2014

I’M The One Making The Money, Now Where’S My Cut? Revisiting The Student-Athlete As An “Employee” Under The National Labor Relations Act, John J. Leppler

Pace Intellectual Property, Sports & Entertainment Law Forum

This Article argues why the National Collegiate Athletic Association’s (NCAA) Big-Time Division I College Football and Men’s Basketball student-athletes are legally “employees” and why these student-athletes are inadequately compensated for their revenue-producing skills.

Part II of this Article sets forth the common law “right of control” test and the National Labor Relation Act’s (NLRA) special statutory test for students in a university setting, and shows how the National Labor Relations Board (NLRB) and the judiciary determine whether a particular person, specifically a university student, meets these standards and is legally an “employee”. Moreover, the NCAA asserts it ...


Caught In The Cross-Fire: The Psychological And Emotional Impact Of The Individuals With Disabilities Education Act (Idea) Upon Teachers Of Children With Disabilities, A Therapeutic Jurisprudence Analysis, Richard Peterson Mar 2014

Caught In The Cross-Fire: The Psychological And Emotional Impact Of The Individuals With Disabilities Education Act (Idea) Upon Teachers Of Children With Disabilities, A Therapeutic Jurisprudence Analysis, Richard Peterson

Pace Law Review

The shortage of special education teachers in the United States, and the adverse consequences flowing from factors related to this condition provide a unique opportunity for scholars to study these issues through interdisciplinary research. Educational scholars have typically focused their research on educational practice and institutional policy. Although this scholarship frequently acknowledges the statutory and regulatory foundations of the IDEA, the literature does not generally adopt a legal framework for research purposes. This is not a criticism of educational scholars. It is merely an observation that opportunities exist to study special education teacher issues in a broader context. This Article ...


The Paradox Of Race-Conscious Labels, Leslie Y. Garfield Jan 2014

The Paradox Of Race-Conscious Labels, Leslie Y. Garfield

Elisabeth Haub School of Law Faculty Publications

Labeling affirmative action laws with integrity is a hopelessly paradoxical pursuit. This article illustrates the consequences of such a pursuit. Section I traces the origins of the Top Ten Percent Law, which arose as a legislative protest to the Fifth Circuit's rejection of the use of race in admissions decisions. This section provides an in-depth understanding of the Top Ten Percent Law and concludes with a detailed analysis of the Fisher decision. Section II supplies an explanation of the majority's conclusion to treat the Top Ten Percent Law as race-neutral and provides detailed support for Justice Ginsburg's ...


Inlaid-Ivory Towers: Higher Education Joint-Use Facilities As Community Redevelopment Bulwarks, Michael N. Widener Mar 2013

Inlaid-Ivory Towers: Higher Education Joint-Use Facilities As Community Redevelopment Bulwarks, Michael N. Widener

Pace Law Review

This paper describes an unusual public-private partnership for real property development not involving typical infrastructure like bridges and roads. It addresses how communities like Mesa manage their way (adopting policies implicating land use and environmental sustainability principles via repurposing of buildings and sharing of additional community assets and “campus” leasing actions) to attract private sector higher education providers to establish a downtown as a node of intellectual stimulation, including cultural diversions. Etching the ivory tower environment into community centers sustains the quality of place. This quality attracts the “creative class,” which forms the core of leadership and entrepreneurship in America ...


No Jokes About Dope: Morse V. Frederick's Educational Rationale, Emily Gold Waldman Jan 2013

No Jokes About Dope: Morse V. Frederick's Educational Rationale, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This piece begins with a “protective” reading of Morse v. Frederick, showing how this rationale provides a good starting point in understanding Morse but is ultimately incomplete. Indeed, Justice Stevens’ dissent is largely an argument that the protective rationale falls short here. I then re-examine Morse from the perspective of the educational rationale and conclude that the underlying, largely unstated premise of the Morse majority is that schools—as part of teaching students about the gravity of drug use—should be able to convey disapproval of messages suggesting that drug use is a joking or trivial matter. This helps to ...


The Inevitable Irrelevance Of Affirmative Action, Leslie Y. Garfield Jan 2013

The Inevitable Irrelevance Of Affirmative Action, Leslie Y. Garfield

Elisabeth Haub School of Law Faculty Publications

This article proceeds in three parts. In Part I of this article, I provide a narrative of affirmative action jurisprudence in higher education, with a particular focus on the meaning of viewpoint diversity in higher education. This section tracks the definitional shift in preference policies from their original design as remedial and compensatory programs for those suffering the effects of educational discrimination to interest convergence programs, which assure equal benefits irrespective of race. In Part II, I explore the circumstances giving rise to Fisher, including an overview of the lower court decisions. This section presents a discussion of the likely ...


University Imprimaturs On Student Speech: The Certification Cases, Emily Gold Waldman Jan 2013

University Imprimaturs On Student Speech: The Certification Cases, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

The Article begins in Part I by describing these three student speech cases and then examining what makes them a distinct category within the larger student speech landscape. As I discuss, the student speech framework was largely developed by the Supreme Court in the K-12 public school context. Conflicts over student speech in universities, in turn, have generally centered on the extent to which the K-12 framework should carry over to the higher education context, given the greater independence and maturity of university students. Recent cases about universities' ability to control student publications, for example, fall into this mold, with ...


The Ethical Dilemma Of A Special Education Lawyer: Who Is The Client?, Jillian Petrera Mar 2011

The Ethical Dilemma Of A Special Education Lawyer: Who Is The Client?, Jillian Petrera

Pace Law Review

No abstract provided.


Facebook Fatalities: Students, Social Networking, And The First Amendment, Thomas Wheeler Mar 2011

Facebook Fatalities: Students, Social Networking, And The First Amendment, Thomas Wheeler

Pace Law Review

No abstract provided.


Students' Fourth Amendment Rights In Schools: Strip Searches, Drug Tests, And More, Emily Gold Waldman Jan 2011

Students' Fourth Amendment Rights In Schools: Strip Searches, Drug Tests, And More, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

At the end of June 2009, the Supreme Court decided Safford Unified School District No. 1 v. Redding, a case involving the strip search of a thirteen-year-old girl at an Arizona middle school. Thus, the Court has now decided four cases regarding public school students' Fourth Amendment rights while at school and the time is ripe to take stock of this jurisprudence as a whole. The following discussion provides such an overview. As an initial matter, it is useful to divide the Court's four Fourth Amendment cases into two categories: (1) cases involving suspicion-based searches of individual students, such ...


Badmouthing Authority: Hostile Speech About School Officials And The Limits Of School Restrictions, Emily Gold Waldman Jan 2011

Badmouthing Authority: Hostile Speech About School Officials And The Limits Of School Restrictions, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

The Article's first two parts discuss the extent to which schools can legally restrict hostile student speech about school officials, should they choose to do so. Part I examines how courts have traditionally approached hostile student speech about school officials when it occurs at school, and Part II then considers how courts have been analyzing the issue when it moves off campus. In the course of this discussion, the Article identifies three key categories of such speech: (1) speech that arguably threatens toward a school official; (2) speech that is primarily vulgar about a school official; and (3) the ...


Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman Jan 2010

Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This article examines the Supreme Court’s student speech framework and argues that, in focusing exclusively on the types of student speech that can be restricted, the framework fails to build in any differentiation as to how such speech can be restricted. This is true even though there are two very distinct types of speech restrictions in schools: suppression of the speech itself; and after-the-fact punishment of the student speaker. As the student speech landscape itself gets more complex – given schools’ experimentation with new disciplinary regimes along with the tremendous rise in student cyber-speech – the blurring of that distinction has ...


Monopoly Pricing On Campus: New York's Textbook Access Act, Gary Minda Apr 2009

Monopoly Pricing On Campus: New York's Textbook Access Act, Gary Minda

Pace Law Review

No abstract provided.


Morse V. Frederick: Evaluating A Supreme Hit To Students' First Amendment Rights, Kellie A. Cairns Sep 2008

Morse V. Frederick: Evaluating A Supreme Hit To Students' First Amendment Rights, Kellie A. Cairns

Pace Law Review

No abstract provided.


Down But Not Out: How School Districts May Utilize Race-Conscious Student Assignments In The Wake Of Parents Involved In Community Schools V. Seattle School District No. 1, Michael A. Stevens Sep 2008

Down But Not Out: How School Districts May Utilize Race-Conscious Student Assignments In The Wake Of Parents Involved In Community Schools V. Seattle School District No. 1, Michael A. Stevens

Pace Law Review

No abstract provided.