Law Commons^™

The Protection Of Student Data Privacy In Wisconsin School Board Policies, Curtis Clyde Rees

Theses and Dissertations--Education Sciences

American schools have increasingly adopted technology resources to fulfill their educational obligations. These tools are for instruction, communication, and storing and analyzing student information. Student data can be directory information, enrollment records, achievement data, and student-created products. This increased utilization began with the passage of No Child Left Behind in 2001, and the COVID-19 pandemic led to more educational technology use of student data. Districts turned to third-party vendors for assistance with data systems and virtual learning resources. Before, during, and after the pandemic, stakeholders were concerned about information security and the students' privacy. School leaders looked to federal regulations …

Inclusion For Students With Intellectual Disabilities: A Philosophical Reconstruction Of The Student To Expand Access And Its Benefits, Derek Thomas Myles Daskalakes

Theses and Dissertations--Education Sciences

This dissertation attempts a philosophical rethinking of the concept of the student in educationally relevant disability law for the sake of expanding access to general education settings for students with intellectual disabilities (ID), without committing to the approach known as full inclusion. I show that students with ID receive significantly less access to general education settings in comparison to other student populations, and that empirical studies show this to be harmful to their learning and developmental outcomes. Discussion of this problem in the inclusion literature assumes one of two positions that separately support either maintaining the status quo regarding the …

Facultas Marginem: Assessing Disability Data And Public Aau Universities’ Affirmative Action Plans For Systemic Barriers Facing Faculty With Disabilities, Joseph Carlton Barry

Theses and Dissertations--Education Sciences

This dissertation contributes to education equity scholarship produced by academics seeking to develop understandings of disability, Persons with Disabilities (PWD), and how both are situated amongst faculty in institutions of higher education. As such, this dissertation centers on a study of public US universities belonging to the Association of American Universities (AAU). This study looks for institutional level associations between respective rates by which college and university faculty with disabilities (FWD) are employed, certain aspects of disability policy drawn from each institution’s 2020 Affirmative Action Plans (AAP), and various other instances of empirical disability data (EDD).

While this study contributes …

The Language Of Power: An Investigation Of How The Macropolitics Of Education Policy Affects The Micropolitics Of Schooling English Learners, Catherine E. Vannatter

Theses and Dissertations--Education Sciences

The population of English Learners (ELs) continues to increase across the United States, and these students persistently perform below their native English-speaking peers in measures of academic achievement. Federal government leaders passed the Every Student Succeeds Act (ESSA) in 2015, which modified how state and local educational agencies identify, instruct, assess, and reclassify ELs and revised what funding EL programming could receive. In this multiphase study, I investigated how the macropolitics of federal and state policy became enacted in the micropolitics of a mid-sized school district in Kentucky. Through an initial phase of document review followed by a mixed methods …

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 …

Special Education's Lessons For School Funding Litigation, Spencer C. Weiler, Scott R. Bauries

Law Faculty Scholarly Articles

In this Article, we make the case that the currently dominant approaches to challenging the constitutionality of a state’s funding efforts have proven ineffective. Instead, future lawsuits designed to bring about lasting funding reform should be informed by the successes within the field of special education by asking courts to examine individual-rights claims based on one student, or several similarly-situated individual students, petitioning the court for relief tailored to that student or class. Such an approach to school finance litigation could result in a decision that limits relief to just one application of the entire funding formula, and the remedy …

Revisiting Rose And Its Effects: A Thirty-Year Retrospective, S. Patrick Riley

Kentucky Law Journal

No abstract provided.

Perversity As Rationality In Teacher Evaluation, Scott R. Bauries

Law Faculty Scholarly Articles

Rational basis review is broken. Consider a vignette: Imagine a student, Lisa, who is about to graduate high school. Lisa has already completed all of the graduation course requirements early and is spending her time during her senior year taking interesting electives and dual-enrollment college courses. The state has a statute that requires school districts to deny a diploma to any student “who, during the final year of school attendance, fails to achieve a passing score on the state-approved, end-of-course exams in the courses of Language Arts, Mathematics, Science, and Social Studies in which that student is then-currently enrolled.”

As …

The People V. Their Universities: How Popular Discontent Is Reshaping Higher Education Law, Ben Trachtenberg

Kentucky Law Journal

No abstract provided.

The 2015 University Of Missouri Protests And Their Lessons For Higher Education Policy And Administration, Ben Trachtenberg

Kentucky Law Journal

No abstract provided.

Higher Ed "Do Not Resuscitate" Orders, Matthew Adam Bruckner

Kentucky Law Journal

Congress has effectively precluded all institutions of higher education from reorganizing in the bankruptcy courts because it was concerned about exploitative profiteers opening fly-by-night colleges, defrauding students, and then finding refuge in bankruptcy. This choice harms students, employees, creditors, and communities. As such, this Article advocates that Congress should reverse its decision and allow IHEs to reorganize in bankruptcy without losing access to federal student loan and grant programs. To support this argument, this Article contrasts the bankruptcy treatment of healthcare enterprises to that of higher education enterprises. In doing so, this Article builds on my own prior work and …

Tinker Tortured: The Scope Of Student Off-Campus Viral Speech Rights In The Federal Circuits, Kevin Nathaniel Troy Fowler

Kentucky Law Journal

No abstract provided.

Not Just Horsing Around: Providing A Free And Appropriate Public Education By Deeming Hippotherapy To Be The "Basic Floor Of Opportunity" For Children With Cerebral Palsy, Elizabeth A. Beal

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

A Benign Prior Restraint Rule For Public School Classroom Speech, Scott R. Bauries

Law Faculty Scholarly Articles

This Article is a contribution to a symposium on schools and free speech. It advances the claim that the First Amendment doctrines that apply to the classroom should adopt a benign prior restraint rule. In the case of teacher classroom speech, the Garcetti rule should apply where the government’s action in interfering with the speech constitutes a prior restraint—the First Amendment should not reach such interference. In cases where a teacher first speaks and then is later punished for that speech, however, basic notions of due process and the dangers of arbitrary governmental decision making are far more pressing, and …

50,000 Voices Can't Be Wrong, But Courts Might Be: How Chevron's Existence Contributes To Retrenching The Higher Education Act, Twinette L. Johnson

Kentucky Law Journal

No abstract provided.

Brief Of Education Law And Educational Measurement Professors As Amici Curiae In Support Of Plaintiffs-Appellants, Cook V. Stewart, Scott R. Bauries, Brian J. Sutherland, Cheryl B. Legare

Law Faculty Advocacy

This appeal, to be decided by the United States Court of Appeals for the 11th Circuit, challenges two egregious misuses of "value-added modeling," a controversial teacher evaluation method that attempts to isolate the affect of one teacher on the learning gains of that teacher's students, as derived from annual standardized test scores. With the approval of the State Appellees, the School District Appellees used the test scores of students who took the Florida Comprehensive Assessment Test in reading and math to evaluate the teaching performance of teachers who either did not teach these students at all, or did not teach …

A Common Law Constitutionalism For The Right To Education, Scott R. Bauries

Law Faculty Scholarly Articles

This Article makes two claims, one descriptive and the other normative. The descriptive claim is that individual rights to education have not been realized under state constitutions because the currently dominant structure of education reform litigation prevents such realization. In state constitutional education clause claims, both pleadings and adjudication generally focus on the equality or adequacy of the system as a whole, rather than on any particular student's educational resources or attainment. The Article traces the roots of the currently dominant systemic approach, and finds these roots in federal institutional reform litigation. This systemic focus leads to a systemic, rather …

Brief Of Law Professors As Amici Curiae In Support Of Petitioner, Scott R. Bauries, Sheldon H. Nahmod, Paul M. Secunda, Joshua D. Branson

Law Faculty Advocacy

Amici curiae respectfully submit this brief in support of Petitioner, Edward Lane, encouraging the reversal of the judgment of the Eleventh Circuit, because the judgment below is inconsistent with both the Court’s general historical approach to public employee speech and the specific approach to such speech that the Court adopted in Garcetti v. Ceballos, 547 U.S. 410 (2006).

Amici are law professors who teach and write about the constitutional rights of public employees and have published a number of scholarly articles on these topics. Amici have no financial stake in the outcome of this case, and in this brief …

Institutional Response To The Changing Legal Environment Regarding Student Safety: A Multi-Campus Case Study, Joy Blanchard

Kentucky Journal of Higher Education Policy and Practice

Confusion regarding liability for student safety and whether federal regulations prohibit information sharing have become a concern on campuses. Do current policies mitigate liability yet still serve the best interest of students? Based on interviews of nearly 30 administrators at three campuses in 2008 and 2011, this case study examines the legal considerations used when responding to such concerns, particularly alcohol and mental health. Organizational capacity and culture structure are discussed; recommendations for practice are provided.

Keepers Of The Night: The Dangerously Important Role Of Resident Assistants On College And University Campuses, Christie M. Letarte

Kentucky Journal of Higher Education Policy and Practice

A great deal of responsibility and risk lies within the RA role. This Article acknowledges that RAs, who are some of the most important employees at institutions of higher education, are often under-trained and may negligently expose institutions to liability. More importantly, this Article aims to address how standards and regulation of the RA position can provide a better snapshot of the RA role, nightlife on college campuses, and reasonable expectations for students, parents, and employees.

Recent Legal Trends Support Requiring Colleges And Universities To Permit Emotional Support Animals In Student Housing, Neal H. Hutchens

Kentucky Journal of Higher Education Policy and Practice

Emerging legal trends suggest colleges and universities should be prepared to make accommodations for emotional support animals, specifically under the requirements of the Fair Housing Act (FHA) and Section 504 of the Rehabilitation Act. Examining recent legal developments, this practitioner brief considers a lawsuit brought by the United States against the University of Nebraska at Kearney to permit a student diagnosed with depression and anxiety to have a therapy dog in student housing. It also reviews recent guidance issued by the U.S. Department of Housing and Urban Development (HUD) addressing the use of service and assistance animals for individuals with …

Allocating Higher-Education Stimulus Funds In New Jersey: A Multiple-Streams Case Study, Michael W. Klein

Kentucky Journal of Higher Education Policy and Practice

This case study examines the public policy process in New Jersey and how it influenced the distribution of American Recovery and Reinvestment Act (ARRA) funds for higher education. New Jersey originally proposed to appropriate ARRA funds only to state-administered financial-aid programs in the FY2010 budget. Applying Kingdon’s (2003) public policy framework, this study explains how higher education advocates provided feedback, presented a successful alternative, and secured $39.6 million for public college and universities.

Foreword: Special Issue Dedicated To Legal Issues In Higher Education, Joy Blanchard

Kentucky Journal of Higher Education Policy and Practice

It is undeniable that legal issues are becoming more prevalent in the day-to-day operations of colleges and universities, as well as among policymakers and lawmakers. The manuscripts in this special issue illustrate the need for all those in higher education to become more aware of the changing legal environment and concomitant regulatory requirements, to educate top-down among those working with students, and for the higher education legal community to begin examining these issues from a broader lens and incorporate the scholarship of policy and organizational change to study the influence of the law on a broader level. This special issue …

Individual Academic Freedom: An Ordinary Concern Of The First Amendment, Scott R. Bauries

Law Faculty Scholarly Articles

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.

There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same …

Dating Violence On Small Rural College Campuses: Are Administrator And Student Perceptions Similar?, Jean Allen Oldham

Theses and Dissertations--Kinesiology and Health Promotion

In recent years dating violence has become more and more prevalent on college campuses. Reports of the range of dating violence vary widely, with studies reporting from 20% to 85% of college women experiencing dating violence. However, almost all research has been conducted among urban and/or large colleges and universities, with virtually no attention to what is happening on small and/or rural college and university campuses.

When a possible 20% of college women have experienced dating violence on college campuses, there becomes a crucial need for administration at a college to have an accurate assessment of the college’s liability, and …

The Law Comes To Campus: The Evolution And Current Role Of The Office Of The General Counsel On College And University Campuses, Jason A. Block

Theses and Dissertations--Educational Policy Studies and Evaluation

Much has been written in the literature of higher education on the history and current role of presidents, provosts, and deans. However, higher education scholars have, for the most part ignored the role of institutional in-house attorneys on college and university campuses. Those who have written on the subject of institutional counsel have proffered the idea that in-house general counsel offices were established as a result of the increased regulation of higher education by state and federal governments, and litigation resulting from the faculty and student rights movements of the 1960s and 1970s. This project seeks to provide a detailed …

The Education Duty, Scott R. Bauries

Law Faculty Scholarly Articles

A constitution is an instrument of entrustment. By adopting a democratic constitution, a polity places in the hands of its elected representatives its trust that those representatives will act to pursue the ends of the polity, rather than their own ends, and that they will do so with an eye toward the effects of adopted policies. In effect, the polity entrusts lawmaking power to its legislature with the expectation that such power will be exercised with loyalty to the public and with due care for its interests. Simply put, legislatures are fiduciaries.

In this Article, I examine the nature of …

American School Finance Litigation And The Right To Education In South Africa, Scott R. Bauries

Law Faculty Scholarly Articles

This paper addresses the South African Constitution's invitation to the Constitutional Court to 'consider foreign law' when interpreting its provisions. Focusing on the education provisions found in section 29 of the Constitution, I make two claims. Firstly, contrary to the developing consensus, American state supreme court jurisprudence in school funding cases makes a poor resource to aid the interpretation of the basic South African right to education, regardless of the quantum of education that the Constitutional Court decides is encompassed by the word 'basic'. Secondly, however, certain aspects of these same American decisions, particularly the space they provide for a …

Charting Kentucky's Path: How The Commonwealth Can Innovate Its Public Schools With Charter Legislation, Tyler Roberts

Kentucky Law Journal

No abstract provided.

State Constitutional Design And Education Reform: Process Specification In Louisiana, Scott R. Bauries

Law Faculty Scholarly Articles

As to education, the Louisiana Constitution contains the familiar general mandate for the establishment of a public school system, now ubiquitous among state constitutions. But unlike the founding documents of any of the other states, Louisiana's constitution also provides for a very specific process-based allocation of the responsibilities for determining appropriations levels in education from year to year.

It is well-known that state constitutions often treat numerous—sometimes trivial—subjects, or contain provisions that seem hyper-specific and statutory, rather than foundational and constitutional, and state constitutions have been roundly criticized (and sometimes defended) for these features. In this Article, I argue that …