Law Commons^™

Separate But Free, Joshua E. Weishart

Law Faculty Scholarship

“Separate but equal” legally sanctioned segregation in public schools until Brown. Ever since, separate but free has been the prevailing dogma excusing segregation. From “freedom of choice” plans that facilitated massive resistance to desegregation to current school choice plans exacerbating racial, socioeconomic, and disability segregation, proponents have venerated parental freedom as the overriding principle.

This Article contends that, in the field of public education, the dogma of separate but free has no place; separate is inherently unfree. As this Article uniquely clarifies, segregation deprives schoolchildren of freedom to become equal citizens and freedom to learn in democratic, integrated, …

'Divisive Concepts' Law And The Big Chill, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Much Critical commentary concerning the so-called "divisive concepts" provisions in this year's budget legislation has focused on their restrictions on speech. These restrictions, among other things, forbid public K-12 teachers from instructing that some persons are "inherently superior or inferior to [others]", "inherently racist or sexist," "should be discriminated against," or "should not attempt to treat others equally" because of their "age, sex gender identity, sexual orientation, race, creed, color, marital status, mental or physical disability, religion, or national origin."

New Hampshire's 'Divisive Concepts' Law And The Big Chill, John M. Greabe

Law Faculty Scholarship

[Excerpt] "

Much critical commentary on the so-called “divisive concepts” provisions in this year’s budget legislation – the label comes from language in an earlier version of the bill – has focused on their content- and viewpoint-based restraints on speech. These speech restrictions prohibit state public employers, including public K-12 school teachers, from (among other things) instructing that persons are “inherently superior or inferior to [others]” “inherently racist or sexist,” “should be discriminated against,” or “should not attempt to treat others equally” because of their “age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or …

Online Onboarding Corporate Governance Training In The Covid-19, Seth C. Oranburg, Benjamin P. Kahn

Law Faculty Scholarship

[Excerpt] "Director onboarding is the process by which an organization facilitates a new director stepping into the role. It is a means by which an incoming director becomes familiar with their new surroundings, the organization, their fellow board members, and other organization leaders. As such, it is an inherently personal experience that has always necessitated face-to-face interaction, whether it takes place in the boardroom and adjacent offices, company retreats, or happy hours. Until 2020, tried-and-true onboarding methods functioned effectively, and there was no reason to reimagine the onboarding process as a potentially virtual procedure. Unfortunately, the novel coronavirus brought about …

Essay: Cyberbullying And Freedom Of Speech, David L. Hudson Jr.

Law Faculty Scholarship

Part I of this essay examines state cyberbullying laws. These laws vary a lot in terms of language and coverage but this part attempts to group these different state laws into different categories. This section categorizes cyberbullying laws into two main categories—(1) those that treat cyberbullying as a crime and (2) those that address cyberbullying as a violation of a school’s code of conduct. Part II of this essay then addresses court decisions that deal with cyberbullying. Once again, this essay examines the topic from both the perspective of (1) criminal law decisions and (2) school law decisions.

The Compromised Right To Education, Joshua Weishart

Law Faculty Scholarship

No abstract provided.

Aligning Education Rights And Remedies, Joshua Weishart

Law Faculty Scholarship

Over the course of five decades and three waves of litigation, courts have approved remedies under the state constitutional right to education that demand more equitable and adequate funding of public schools. Scholars have urgently called for a 'fourth wave" of litigation seeking remedies beyond money: racial and socioeconomic integration, school choice, universal preschool, and teacher tenure reform, just to name a few. Desperate for progress and to escape the incessant rut of school funding battles, advocates have, in turn, initiated lawsuits seeking a broader range of remedies. If this strategy induces a fourth wave, advocates will encounter a beleaguered …

Reconstituting The Right To Education, Joshua Weishart

Law Faculty Scholarship

Confronting persistent and widening inequality in educational opportunity, advocates have regarded the right to education as a linchpin for reform. In the forty years since the Supreme Court relegated that right to the domain of state constitutional law, its power has surged and faded in litigation challenging state school finance systems. Like so many of the students it is meant to protect, however, the right to education has generally underachieved, in part because those wielding it have not always appreciated its distinctive forms and function.

Deconstructed, the right to education held by children has been formulated doctrinally as both a …

Transcending Equality Versus Adequacy, Joshua Weishart

Law Faculty Scholarship

A debate about whether all children are entitled to an "equal" or an "adequate" education has been waged at the forefront of school finance policy for decades. In an era of budget deficits and harsh cuts in public education, I submit that it is time to move on.

Equality of educational opportunity has been thought to require equal spending per pupil or spending adjusted to the needs of differently situated children. Adequacy has been understood to require a level of spending sufficient to satisfy some absolute, rather than relative, educational threshold In practice, however, many courts interpreting their states' constitutional …

Brief Amicus Curiae Of The Honorable Margaret W. Hassan Governor Of The State Of New Hampshire In Support Of The Plaintiffs/Cross-Appellants, Lucy C. Hodder, John M. Greabe

Law Faculty Scholarship

SUMMARY OF ARGUMENT

The Governor confines her argument in this amicus brief to whether the superior court correctly concluded that the education tax credit program enacted under RSA § 77-G violates Article 83 insofar as it permits organizations authorized to receive donations subsidized by the credit to use those donations to fund student scholarships to religious, non-public schools. In the Governor’s view, the superior court’s finding of unconstitutionality was correct.

In its text, structure, and history (including its interpretive history), the New Hampshire Constitution significantly differs from the First Amendment’s Establishment Clause with respect to the question whether revenue generated …

Tinker And Viewpoint Discrimination, John E. Taylor

Law Faculty Scholarship

No abstract provided.

Board Of Education V. Taxman: The Unpublished Opinions- Introduction, Michael J. Yelnosky, Ann C. Mcginley

Law Faculty Scholarship

No abstract provided.

In The Title Ix Race Toward Gender Equity, The Black Female Athlete Is Left To Finish Last: The Lack Of Access For The “Invisible Woman", Tonya M. Evans

Law Faculty Scholarship

Although each of us is defined by race and gender, those of us who are neither white nor male often experience invisibility as a result of our dual subordinate status.... Black women have been disproportionately located at the lower end of the economic hierarchy and, therefore, have been unable to afford private golf, swimming, or tennis lessons. Overt racial discrimination prevented black women from gaining access to the sports participated in by white women. To the extent that the main thrust of solutions to gender inequity and a lack of adherence to Title IX mandates has been the addition of …