Education Law Commons^™

Moral Panic Or Public Health Crisis? Lessons From Drugs And Gambling For “Addictive” Design, Matthew B. Lawrence, Haomin (Kevin) Yan

Seattle University Law Review

Alcohol, automobiles, guns, lottery, loot boxes, meat, music, opioid painkillers, processed foods, prop bets, slot machines, television, tobacco, violent video games. Over the last century each of these has been subject to concerns—some might even say “moral panics”—from parents and policymakers about avoidable harms to kids and adults. In some cases we look back with the benefit of hindsight and dismiss those concerns as naïve or moralistic. In others we look back at them as justified or as having come too late to check an expanding industry before it did unfathomable harm while growing so powerful that it became all …

Responding To Digital Addiction, Ned Snow

Seattle University Law Review

In Unwired: Gaining Control over Addictive Technologies, Professor Gaia Bernstein calls our attention to the growing problem of digital addiction. Digital addiction may sound like something out of a science-fiction novel or something that does not raise the same sort of real-life practical concerns as are present in a physical health crisis or an economic decline. But as Bernstein presents the evidence, we learn that the consequences of digital addiction can be just as harmful as a serious disease or a financial depression. Cognitive development disorders, anxiety, emotional depression, social isolation, and other mental health ills can be debilitating—as much …

The Ai Doppelgänger Dilemma: Cloned Voices In The Music Industry, Elizabeth Shields

Seattle University Law Review

With the rise of generative artificial intelligence (AI), there has been an influx of “voice clones”—deep-learning algorithms that create synthetic speech to realistically mimic human voices. Celebrities and, in particular, music artists, have been subjected to the proliferation of AI voice clones on social media platforms like TikTok and streaming platforms such as Spotify. Despite music utilizing AI voice clones having amassed much popularity, this technology can be harmful and highly invasive to musicians whose livelihoods often depend on their distinct voices. While legal scholars have attempted to articulate various rights that could protect a person’s voice, individuals are largely …

Let The Sunshine In: Crafting Constitutional Transparency Regulations For Content Moderation, Caitlin Ring Carlson

Seattle University Law Review

In response to public concern about the impact of social media, legislators in some U.S. states have developed laws to regulate the process of content moderation. Many include mandatory transparency and disclosure requirements, some of which courts have already deemed an unconstitutional infringement on social media platforms’ right to free expression. This article explores the parameters for crafting constitutional social media transparency regulations using existing U.S. media policy and insights from recent legal challenges. The resulting analysis identifies content neutral transparency requirements that mandate the disclosure of purely factual, non-controversial information as those most likely to withstand judicial scrutiny. Specifically, …

This Is Not A Game: The Addictive Allure Of Digital Companions, Nizan Geslevich Packin, Karni Chagal-Feferkorn

Seattle University Law Review

Artificial Intelligence (AI) agents have become an inescapable part of modern childhood, reshaping education, leisure activities, entertainment, and social interaction. From AI-powered tutors that adapt to individual learning styles to emotionally responsive chatbots that simulate human companionship, these systems promise unprecedented personalization, cognitive stimulation, and social support. However, these benefits mask significant risks that remain unregulated and inadequately addressed.

Although adults are also susceptible to forming deep emotional bonds with AI companions—often trusting them as if they possessed genuine understanding and empathy—children are particularly vulnerable. Their misplaced trust can more severely distort social development, weaken critical thinking, and foster unhealthy …

An "Exceedingly Persuasive Justification": Affirmative Action As Protected By The Free Exercise Clause, Kristin O'Bryan Pereira

Pepperdine Law Review

In 2023, the Supreme Court’s Students for Fair Admissions, Inc. v. Harvard (SFFA) decision effectively outlawed the use of race-based affirmative action programs in higher education, holding that such programs violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Title VI of the Civil Rights Act of 1964. Meanwhile, the current Supreme Court has been unprecedently friendly to claimants seeking Free Exercise Clause protection from government restraints on religious exercise. The intersection between these two areas of law has implications for a category of schools not explicitly considered in the SFFA decision—private, religious schools …

Picking Through The Remnants Of Brown V. Board To Realize The Ideal Of Quality Public Education For All Children In The Post Covid-19 Era, Tiffani Darden

William & Mary Law Review

Brown, above and beyond eliminating the “separate but equal” doctrine, presented many socio-legal principles that were abdicated or diluted during the government’s COVID-19 response. This Article will address several strands recognized throughout the opinion’s seventy-year history by the courts and legal commentators that were illuminated during this period. First, the pursuit of quality education remains elusive for people of color and students from lower socioeconomic backgrounds. Second, public education continues to be an aspirational pathway to upward social mobility and building a democracy composed of educated citizens. Third, the anti-subordination construction, as opposed to the anti-classification interpretation, of the …

The Right To A Nuisance-Free Public Education, Jamel K. Donnor

William & Mary Law Review

The aim of this Article is to discuss how Florida’s Individual Freedom Act infringes upon Black students’ constitutional right to learn about non-white supremacist ideas, their freedom to think, and a public school’s ability to offer Black-centered curricula content.

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This Article explains that the Individual Freedom Act’s racially encoded wording establishes an academic environment for a racial nuisance to exist because its criteria authorize public education officials to label curricula content under the auspices of indoctrination, divisiveness, or educational value. While the term “nuisance” is typically reserved for determining reasonableness of an “interference with a right common to the …

Race Without Racism: Religious School Curricula And The Race-Neutral Legacy Of Brown, Vania Blaiklock

William & Mary Law Review

Current conversations about race and equity curricula in primary and secondary education exclude examining religious curricula because of their private classification. Yet, this omission prevents us from exploring how religious curricula might mirror the legal transformation of Brown’s racial equality legacy to constitutional race neutrality. This Article brings religious curricula into these conversations by specifically linking the Court’s race-neutral transformation of Brown to the way religious curricula frame discussions about race without racism. Throughout the Article, I argue that the Court’s transformation of Brown is not just a top-down legal framework but also a bottom-up educational ideology. By making …

Retrenchment By Diversion: The New Politics Of Parental Rights, Mary Ziegler, Maxine Eichner, Naomi Cahn

Michigan Law Review

For the past century, the Supreme Court has repeatedly affirmed the importance of parents’ rights to direct their children’s upbringing and education. Yet suddenly the rhetoric of parental rights is being used to ground a broad range of claims on issues such as what can be taught in public schools, when minors can access gender-affirming care, or who will be punished for helping minors travel for abortion care. Why have parental-rights claims surged so visibly in contemporary law and politics? And are all the new arguments made under the banner of parental rights equally rooted in constitutional precedent?

This Article …

Radical Restorative Justice: Reflections On Conflict, Trauma, And Hope In Chicagoland Schools, Amy J. Cohen, Uma Blanchard

Cardozo Law Review

This Article tracks how abolitionist and reformist debates are unfolding within urban schools’ attempts to smash the school-to-prison pipeline. We document how Chicago-area public school teachers are grappling with new restorative justice programs and their complex and divergent sociopolitical and institutional meanings. Drawing on over forty qualitative interviews with teachers, we illustrate how difficult widespread implementation of new conflict resolution mechanisms, in the name of restorative justice, are turning out to be. We analyze how teachers are interpreting restorative justice practices and the challenges they involve for students, educators, and school administrators who learn and teach and work in hierarchical …

Through A Glass Darkly: How Securities Disclosures Give A Distorted View Of The Economy, Gerald F. Davis

Seattle University Law Review

Our understanding of the American economy often relies on stylized facts derived from mandatory disclosures by listed corporations. Data vendors like Standard & Poor’s vacuum up 10Ks and proxy statements into databases, and scholars distill these into tentative maps. This may have been adequate for a postwar economy centered on asset-heavy manufacturers, but it is increasingly out of step with an information-based economy. Companies listed on the stock market are fewer in number and less representative than they were, light in tangible assets and people, and heavy on IP. Basic facts such as what industry they are in are increasingly …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Shareholder Expression In A Time Of Heightened Political Tension, Aaron A. Dhir

Seattle University Law Review

In this article, I provide context for my forthcoming research project on shareholder proposals and racial equity audits. Since the murder of George Floyd in May of 2020, progressive shareholder actors have increasingly used the proposal mechanism to advance diversity, equity, inclusion, and justice-related goals. These proposals have frequently gone beyond requesting the usual corporate fare of diversity trainings, intersectionality workshops, affinity groups, etc. Instead, a more ambitious type of proposal asks corporate America to conduct racial equity audits, defined as “an independent, objective and holistic analysis of a company’s policies, practices, products, services and efforts to combat systemic racism …

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

The Right To Truth, Maureen Edobor

Scholarly Articles

This Article argues that today’s anti-CRT statutes, book bans, and “divisive concepts” laws are not isolated culture-war skirmishes but the latest chapter in a long campaign—dating back to the Lost Cause and the United Daughters of the Confederacy—to legislate white innocence as national identity. By sanitizing slavery, suppressing discussions of systemic racism, and threatening educators with punitive ambiguity, these laws flatten historical truth and convert classrooms into zones of anticipatory obedience. The result is a state-engineered amnesia that undermines the core First and Fourteenth Amendment protections the Supreme Court has recognized for more than a century, from Meyer and Barnette …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

From 1957 To 2023: How The Supreme Court Prevented Little Rock Schools From Achieving The Ideal Of Desegregation, Nyssa Kruse

Indiana Journal of Law and Social Equality

No abstract provided.

An Argument For A Right To Education For Undocumented Youth In Light Of Daca’S Uncertain Future, Minnie Blackman

Indiana Journal of Law and Social Equality

Undocumented youth are facing increasingly difficult circumstances in which to integrate into U.S. society both socially and economically. A primary reason for this phenomenon is the current antagonistic sentiments surrounding the Deferred Action for Childhood Arrivals (DACA) program. These sentiments have created a lack of trust in this program, with fewer undocumented youth applying for DACA status, which would allow many of them to apply to public colleges and universities at in-state tuition rates. Previous research has implied that state laws have the potential to create a property interest in education, and, as such, it must be protected from arbitrary …

Admissions Essays After Sffa, Sonja Starr

Indiana Law Journal

The Supreme Court concluded its 2023 decision barring affirmative action in university admissions with a qualification: Although they may not give weight to “race qua race,” universities may consider individual applicants’ discussion of race-related life experience that bears on their strengths and potential. This “essay carveout” provides a potential path forward for universities (and other entities to which the affirmative action ban may eventually apply). But the Court also warned against using it to enact “indirect” affirmative action, and legal advocates of colorblindness stand poised to challenge any use of essays that appears to stray over this line. So where …

The Resurgence Of Massive Resistance, Danielle Wingfield

Washington and Lee Law Review

“Massive Resistance” to equal access to good quality public education is resurging across the nation. First employed by segregationists in Virginia, Massive Resistance spread across the South to oppose school desegregation. This extreme push to suppress equitable education occurred most notably post-Brown. Although 2024 marked Brown’s seventieth anniversary, Massive Resistance is again surging. In fact, the last few years have witnessed increasing resistance to publicly funded education. Some areas where anti-public education resistance strategies have manifested include political rhetoric around Critical Race Theory, library censorship, and renewed parental rights debates.

To devise the most effective response to …

Race Without Racism: Religious School Curricula And The Race-Neutral Legacy Of Brown, Vania Blaiklock

Scholarly Articles

Current conversations about race and equity curricula in primary and secondary education exclude examining religious curricula because of their private classification. Yet, this omission prevents us from exploring how religious curricula might mirror the legal transformation of Brown’s racial equality legacy to constitutional race neutrality. This Article brings religious curricula into these conversations by specifically linking the Court’s race-neutral transformation of Brown to the way religious curricula frame discussions about race without racism. Throughout the Article, I argue that the Court’s transformation of Brown is not just a top-down legal framework but also a bottom-up educational ideology. By making …

The Whiteness Of Wealth & Black Student Loan Debt, Renee Nicole Allen

Faculty Publications

On June 30, 2023, to the dismay of many anxious borrowers, the Supreme Court held that the Secretary of Education did not have the authority to cancel roughly $430 billion in federal student loan balances, thus blocking President Biden’s plan for student loan forgiveness. Despite authority delegated to the Secretary to waive or modify provisions of the Education Act to ensure low-to-middle income borrowers were not placed in a worse financial position because of the COVID-19 national emergency, the Court rejected the forgiveness plan and borrowers resumed payments in October 2023. Anti-Black racism in federal law and policy have contributed …

Student Protests And “Fighting Words”: Critical Race Theory And The Evolution Of Hate Speech Codes On College Campuses, Mark C. Niles

Faculty Publications

Devastating Hamas attacks on Israeli civilians and military personnel in October 2023, and the Israeli military response to those attacks in Gaza, have given rise to protests around the world, notably on college campuses in the United States. These protests (on more than fifty campuses in all parts of the country) have in turn generated multiple allegations of antisemitic statements and conduct by protestors. Many high-profile university donors and board members, portions of the media, and some elected officials responded to these allegations by identifying perceived deficiencies in campus administrative responses to these complaints and to calls for more robust …

From Race-Conscious To Race-Neutral: The Next Generation Of Litigation Over Selective Admissions, Rachel F. Moran

Faculty Scholarship

In the wake of the United States Supreme Court’s decision in Students for Fair Admissions v. President and Fellows of Harvard College, there have been fierce debates over the meaning of colorblindness in the higher education admissions process. Setting the stage for these controversies are recent lawsuits challenging changes to admissions policies at selective public high schools. In these cases, the plaintiffs allege that although school officials relied on facially race-neutral criteria, their actions were motivated by a desire to improve the representation of Black and Latino students. According to the complaints, these revised policies are an impermissible form …