Education Law Commons^™

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 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 …

Doing Affirmative Action, Stephen Clowney

Michigan Law Review First Impressions

Sometime this year the Supreme Court will announce its holding in Fisher v. University of Texas at Austin, a case that asks whether colleges may continue to consider race when making admissions decisions. Most Court watchers predict that the five conservative justices will vote to curtail the use of racial preferences. Lost in the weighty discussions about the scope of the Equal Protection Clause and the meaning of the Civil Rights struggle is any clear and concise explanation of how selective colleges actually make admissions decisions and how they work to fulfill the goals of affirmative action. This Essay seeks …

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 explain why …

Key Legal Issues For Schools: The Ultimate Resource For School Business Officials, Charles J. Russo

Educational Leadership Faculty Publications

School business officials (SBOs) must, in many respects, serve as all things to all people in their workplaces. Put another way, SBOs must be knowledgeable about a wide range of legal issues ranging from contracts to setting policy to state biding laws let alone constitutional matters involving the rights of students and teachers. Aware of the fact that issues involving the law are at the heart of many of a SBO’s duties, the chapters in this edited book have been written by a diverse array of individuals with experience as educational leaders in schools and/ or who possess significant expertise …

Students, Security, And Race, Jason P. Nance

UF Law Faculty Publications

In the wake of the terrible shootings in Newtown, Connecticut, our nation has turned its attention to school security. For example, several states have passed or are considering passing legislation that will provide new funding to schools for security equipment and law enforcement officers. Strict security measures in schools are certainly not new. In response to prior acts of school violence, many public schools for years have relied on metal detectors, random sweeps, locked gates, surveillance cameras, and law enforcement officers to promote school safety. Before policymakers and school officials invest more money in strict security measures, this Article provides …

Why Non-Discrimination Policies In Higher Education Require A Second Look: The Battle For First Amendment Freedom In The University Setting, Rebecca D. Ryan

Catholic University Law Review

No abstract provided.

Evaluating High School Students' Constitutional And Civic Literacy: A Case Study Of The Washington, D.C. Chapter Of The Marshall-Brennan Constitutional Literacy Project, Maryam Ahranjani, Caleb Medearis, Jeff Shook

Scholarly Works

The United States maintains a reputation as a vibrant, participatory democracy. Yet, paradoxically, formal civics education has essentially disappeared from America's public high schools, particularly urban public schools serving low-income and minority students. The Marshall-Brennan Constitutional Literacy Project, which is offered at almost zero cost to public schools and districts, developed as a response to the need for civics education in high schools and as a way to train future lawyers in public speaking, leadership, and counseling. To support the growth of the Marshall-Brennan project all over the country, the authors of this Essay came together to study the Marshall-Brennan …

Sex-Parate But Equal? The Legality Of Single-Sex Public Schools And Their Discriminatory Effect On Transgender Students, Bryana Turner

Cardozo Journal of Equal Rights & Social Justice

The note argues that single-sex public schools are both legally problematic and harmful, particularly to transgender students. It contends that such schools violate Title IX of the Education Amendments of 1972 and are unconstitutional under the precedent set by Brown v. Board of Education. The analysis highlights the discriminatory effects of single-sex education, which perpetuates gender stereotypes and fails to accommodate transgender students, who are disproportionately affected by such policies.

Grutter's Denouement: Three Templates From The Roberts Court, Ellen D. Katz

Articles

Precedent from the Roberts Court shows the Justices taking three distinct approaches to precedent they dislike. Each provides a template for the Court to criticize race-based affirmative action in higher education, as Fisher v. University of Texas at Austin is widely expected to do. Most narrowly, the Court might use Fisher to issue a warning, much like it did in 2009 when it sidestepped a constitutional challenge to the Voting Rights Act; under this approach, the opinion would spell out why the Justices think the diversity celebrated in Grutter v. Bollinger no longer provides sufficient justification for the use of …

Conditional Spending After Nfib V. Sebelius: The Example Of Federal Education Law, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

In NFIB v. Sebelius, the Supreme Court’s recent case addressing the constitutionality of the Affordable Care Act, the Court concluded that the expansion of Medicaid in that Act was unconstitutionally coercive and therefore exceeded the scope of Congress’s authority under the Spending Clause. This was the first time that the Court treated coercion as an issue of more than mere theoretical possibility under the Spending Clause. In the wake of the Court’s decision, commentators have expressed either the concern or the hope that NFIB’s coercion analysis may lead to the undoing of much of the federal regulatory state, …

Returning To Hazelwood'S Core: A New Approach To Restrictions On School-Sponsored Speech, Emily Gold Waldman

Florida Law Review

This Article begins by discussing the Hazelwood decision in depth. It then discusses the various contexts in which courts have applied Hazelwood and the circuit split that has developed over how broadly Hazelwood should reach. Next, it describes the circuit split over whether Hazelwood permits viewpoint-based speech restrictions, highlighting the different speech contexts in which the circuits have reached divergent conclusions. The Article then argues that the overextension of Hazelwood links the two splits. This Part also discusses why Hazelwood is uniquely suited to the student speech context and why other doctrines—namely, the Pickering–Connick framework for teachers’ classroom …

Government's Denigration Of Religion: Is God The Victim Of Discrimination In Our Public Schools?, Michael R. O'Neill

Pepperdine Law Review

No abstract provided.

Lee V. Weisman: Unanswered Prayers, Marilyn Perrin

Pepperdine Law Review

No abstract provided.

State Action And The Supreme Court's Emerging Consensus On The Line Between Establishment And Private Religious Expression, Michael W. Mcconnell

Pepperdine Law Review

No abstract provided.

How Not To Criminalize Cyberbullying, Lyrissa Barnett Lidsky, Andrea Garcia

UF Law Faculty Publications

This essay provides a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which this essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, this essay contends that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, creating pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate …

"If The Plaintiffs Are Right, Grutter Is Wrong": Why Fisher V. University Of Texas Presents An Opportunity For The Supreme Court To Overturn A Flawed Decision, Brooks H. Spears

University of Richmond Law Review

No abstract provided.

Uneven “Neutrality”: Dual Standards And The Establishment Clause In Johnson V. Poway, Eric Jeppsen

BYU Law Review

No abstract provided.

Alumni Association Of The Arab Orthodox School In Haifa V. Minister Of Finance, Miriam Naor, Dorit Beinisch, Eliezer Rivlin

Translated Opinions

Facts: The Budget Elements Law was amended in 2011 to include a new section 3b, which provided that if an entity that receives support or budgeting from the government incurs an expense that falls within any of several listed categories, the Minister of Finance can reduce the entity’s budget or support by an amount no greater than three times the size of the said expense. Of the categories listed, the petitioners focused their challenge on two of them: the first, sub-section 3b(b)(1), referring to an expense which was “in essence” a negation of the values of the State of Israel …

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 …

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 …

Of Greater Value Than The Gold Of Our Mountains: The Right To Education In Colorado's Nineteenth-Century Constitution, Tom I. Romero Ii

Scholarly Works

As the contemporary battle for educational opportunity has moved to state courts, the education clauses of a state's constitution have played prominent roles in the litigation. Of particular concern has been the role that history should play in interpreting the scope and meaning of various provisions of a clause. This Article advances this debate by examining the development of article IX (the education clause) in Colorado's 1876 "Centennial" Constitution. The Article first details the efforts to provide free public education in the United States in the decades leading to the drafting of the Colorado state constitution in 1876. Colorado, as …

Religion, School, And Judicial Decision Making: An Empirical Perspective, Michael Heise, Gregory C. Sisk

Cornell Law Faculty Publications

We analyze various influences on judicial outcomes favoring religion in cases involving elementary and secondary schools and decided by lower federal courts. A focus on religion in the school context is warranted as the most difficult and penetrating questions about the proper relationship between Church and State have arisen with special frequency, controversy, and fervor in the often-charged atmosphere of education. Schools and the Religion Clauses collide persistently, and litigation frames many of these collisions. Also, the frequency and magnitude of these legal collisions increase as various policy initiatives increasingly seek to leverage private and religious schools in the service …

"Of Greater Value Than The Gold Of Our Mountains": The Right To Education In Colorado's Nineteenth- Century Constitution, Tom I. Romero, Ii

University of Colorado Law Review

As the contemporary battle for educational opportunity has moved to state courts, the education clauses of a state's constitution have played prominent roles in the litigation. Of particular concern has been the role that history should play in interpreting the scope and meaning of various provisions of a clause. This Article advances this debate by examining the development of article IX (the education clause) in Colorado's 1876 "Centennial" Constitution. The Article first details the efforts to provide free public education in the United States in the decades leading to the drafting of the Colorado state constitution in 1876. Colorado, as …

The War On Women's Fundamental Rights: Connecting U.S. Supreme Court Originalism To Rightwing, Conservative Extremism In American Politics, Donna J. King

Cardozo Journal of Equal Rights & Social Justice

The article argues that the Fourteenth Amendment's Privileges or Immunities Clause, intended to protect fundamental rights for all citizens, including women, has been systematically undermined by the U.S. Supreme Court's originalist interpretations. This erosion, exemplified by cases like SlaughterHouse, has emboldened right-wing extremism and threatens women's rights, particularly in the context of unenumerated fundamental rights. The article contends that the Court's narrow constructions and disregard for legislative history have perpetuated inequality and stripped the Clause of its intended protective power.

The Promise Of Grutter: Diverse Interactions At The University Of Michigan Law School, Meera E. Deo

Michigan Journal of Race and Law

In Grutter v. Bollinger, the U.S. Supreme Court upheld affirmative action at the University of Michigan Law School on the grounds of educational diversity. Yet the Court's assumption that admitting diverse students into law school would result in improved race relations, livelier classroom conversations, and better professional outcomes for students has never been empirically tested. This Article relies on survey and focus group data collected at the University of Michigan Lav School campus itself in March 2010 to examine not only whether, but how diversity affects learning. The data indicate both that there are sufficient numbers of students of color …

Leveling Localism And Racial Inequality In Education Through The No Child Left Behind Act Public Choice Provision, Erika K. Wilson

University of Michigan Journal of Law Reform

School district boundary lines play a pivotal role in shaping students' educational opportunities. Living on one side of a school district boundary rather than another can mean the difference between being able to attend a high-achieving resource-enriched school or having to attend a low-achieving resource-deprived school. Despite the prominent role that school district boundary lines play in dictating educational opportunities for students, remedies formulated by the federal judiciary-the institution frequently looked upon to address issues of school segregation and inequality-are ineffective in ameliorating disparities between school districts. They are ineffective because the federal judiciary evidences a doctrinal preference for localism …

The Heart Of The Constitutional Enterprise: Affirming Equality And Freedom In Public Education, William E. Thro

Brigham Young University Education and Law Journal

No abstract provided.

Child, Please – Stop The Anti-Queer School Bullycides: A Modest Proposal To Hoist Social Conservatives By Their Own “God, Guns, And Gays” Petard, David Groshoff

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Education As A Counterterrorism Tool And The Curious Case Of The Texas School Book Resolution, Diane Webber

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.