Education Law Commons^™

The Resurgence Of Massive Resistance, Danielle Wingfield-Smith

Law Faculty Publications

“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 …

Douglass, Lincoln, And Douglas Before Dred Scott: A Few Thoughts On Freedom, Equality, And Affirmative Action, Henry L. Chambers Jr.

Law Faculty Publications

In 1854, Senator Stephen Douglas, Abraham Lincoln, and Frederick Douglass delivered speeches about the newly passed Kansas-Nebraska Act. That law opened the Kansas and Nebraska Territories to slavery by extending popular sovereignty, the practice of letting territorial majorities decide whether to allow slavery in a territory, to them. Given before Dred Scott v. Sandford, the infamous case in which the Supreme Court ruled that Black Americans—whether freeborn, freed, or enslaved—could not be citizens of the United States absent congressional action or constitutional amendment, the speeches are worth revisiting. They focus on whether or how slavery should be limited, reflecting …

Pathways To Liberty: What Colonial, Antebellum, And Postbellum Education Can Teach Us About Today, Danielle Wingfield

Law Faculty Publications

Education is a critical part of nation-building. More specifically, it can also be a powerful pathway to liberty and a tool for disseminating knowledge. However, historically it has been used to subjugate and censor vulnerable groups like women, socio-economically disadvantaged persons, as well as men of color. Therefore, to avoid subordinating members of such minoritized groups and suppressing uncomfortable historical facts, advocates must continually evaluate the purpose and method of education. Such persistent monitoring can provide a basis for constructive reform of public education in the United States. Such reform must also consider changing social conditions.

Presently, for example, public …

Policy Advocacy And Organizational Change At The Association Of University Technology Managers (Autm), Jacob H. Rooksby

Law Faculty Publications

Since its founding, the Association of University Technology Managers, Inc. (now preferentially called “AUTM” after a February 2018 rebranding) has played a critical role in national policy discussions relating to technology transfer, intellectual property (“IP”), federal research support, entrepreneurship, and innovation. The nonprofit association is comprised of individuals responsible for the management of technology portfolios and an increasing variety of related support programs. AUTM’s mission is “to support and advance academic technology transfer globally” by:

(1) providing members with knowledge, tools, and training for professional development,

(2) helping stakeholders understand the value and impact of technology transfer,

(3) developing partnerships …

Beyond Formal University Technology Transfer: Innovative Pathways For Knowledge Exchange, Jacob H. Rooksby

Law Faculty Publications

University technology transfer is often associated with formal transmission of science-based inventions, for instance through the licensing of patented technology to a firm. Formal conceptions of technology transfer limit our ability to understand fully how scientific knowledge evolves into industrial and social application. In this introductory article, we discuss how knowledge is shared and accessed across boundaries, and argue for a broader conceptualization including the transfer, translation, and transformation of knowledge. This view underlies a necessary conceptual shift from formal technology transfer to a more encompassing conception of pathways for knowledge exchange. We discuss promising avenues for extending research on …

Copyrights In Higher Education: Motivating A Research Agenda, Jacob H. Rooksby

Law Faculty Publications

The Bayh–Dole Act of 1980 enabled American universities to engage in technology transfer. Thirty years of research has investigated the legislation’s effectiveness and derivative university practices, such as the establishment of technology transfer offices. Unfortunately, the technology transfer literature has focused primarily on patenting as the primary transfer vehicle for protecting intellectual property in universities, overlooking other forms of IP ownership, such as copyrights. Legal scholarship shows, however, that universities are increasingly using copyrights to protect their intellectual property and that the number of university-held copyrights exceeds patents. This paper examines the use of copyrights to protect and transfer university …

Restructuring The Elementary And Secondary Education Act’S Approach To Equity, Kimberly Jenkins Robinson

Law Faculty Publications

The United States stands at a crossroads regarding educational equity. On one road, the Every Student Succeeds Act (ESSA), the current reauthorization of the Elementary and Secondary Education Act (ESEA), greatly reduced federal involvement in education and returned control to state and local governments that had repeatedly criticized the prescriptive nature of the No Child Left Behind Act of 2001. In the wake of this federal retreat, state and local control of education without effective federal oversight creates grave concerns for those who advocate for economically disadvantaged and minority students, including many civil rights groups. History confirms that states and …

Why Kindergarten Is Too Late: The Need For Early Childhood Remedies In School Finance Litigation, Kevin Woodson

Law Faculty Publications

In the remedial phases of school finance lawsuits, courts and legislatures have sought to provide poor children access to adequate educational opportunities through remedies and reforms focusing almost exclusively on improving educational conditions within elementary and secondary schools. This approach is both inefficient and ineffective. As a large and growing body of scientific and social science research reveals, class-based disparities in quality of care and enrichment during the first years of life can have life-long effects that inhibit the ability of many poor children to succeed academically, thereby depriving them of equal and adequate access to educational opportunity. The failure …

Inequitable Schools Demand A Federal Remedy, Kimberly J. Robinson

Law Faculty Publications

It is not often that the U.S. Supreme Court admits that one of its previous decisions, especially one that shaped the fabric of our nation, was fundamentally wrong. One such instance occurred in 1954, when the court famously declared, in Brown v. Board of Education, that the doctrine of “separate but equal” public schools for black children and white children was unconstitutional. In Brown, the court overturned, for public schools, its approval of this doctrine in Plessy v. Ferguson (1896) and established that segregated schools violated the equal protection clause of the Fourteenth Amendment. The court also proclaimed that …

Copyright In Higher Education: A Review Of Modern Scholarship, Jacob H. Rooksby

Law Faculty Publications

Of the four intellectual property regimes, copyright is the most central to the day-to-day functioning of higher education. Nearly every course of instruction involves the use of written, visual, intangible, and tangible materials, many if not most of which are subject to copyright protection. Students, faculty, and staff—essentially all the people who comprise higher education—produce and interact with copyrightable and copyrighted materials every day. Copyright relates directly to perhaps the most prominent of higher education’s goals: to educate students through teaching, and to produce scholarship and research that benefit mankind. All of these acts involve creating and using original works …

A Legal Perspective On University Technology Transfer, Jacob H. Rooksby

Law Faculty Publications

In the thirty-five years after passage of the Bayh–Dole Act of 1980, a robust literature has documented the emergence of university technology transfer as a critical mechanism for the dissemination and commercialization of new technology stemming from federally-funded research. Missing from these investigations, however, is what this paper terms the legal perspective, an understanding of how the law and its attendant mechanisms impact university technology transfer. Specifically, the paper reviews the extant legal scholarship and provides examples of how case law, legal structures, and the unique nature of intellectual property law affects technology transfer, as well as higher education policy …

A Fresh Look At Copyright On Campus, Jacob H. Rooksby

Law Faculty Publications

The role of copyright on the modern college and university campus is overdue for fresh examination. Copyright ownership issues and related con- tests over rights risk impeding higher education’s ability to serve as a cultural and knowledge commons, a specially constructed space where human and artifactual resources interact in ways that benefit society at large. At present, copyright concerns raised by trends involving student entrepreneurship, the digital humanities, and the digitization of special collections material housed in campus libraries threaten higher education’s potential to benefit society to the fullest.

This Article reviews developments in these three areas of higher education …

No Quick Fix For Equity And Excellence: The Virtues Of Incremental Shifts In Education Federalism, Kimberly J. Robinson

Law Faculty Publications

In this Article, I join these calls for the federal government to lead states to reform their school funding systems. In doing so, I build upon my recent scholarship that calls for additional federal leadership insisting that states prioritize equity and excellence in education. I recommend that we restructure education federalism by requiring the federal government to serve as the ultimate guarantor of equal access to an excellent education. My theory of education federalism embraces federal policymaking strengths in education, such as federal research, technical, and financial assistance, that support state and local reforms to promote equity and excellence. This …

Sexualization, Sex Discrimination, And Public School Dress Codes, Meredith J. Harbach

Law Faculty Publications

This essay joins the conversation about sexualization, sex discrimination, and public school dress codes to situate current debates within in the broader cultural and legal landscapes in which they exist. My aim is not to answer definitively the questions I pose above. Rather, I ground the controversy in these broader contexts in order to better understand the stakes and to glean insights into how schools, students, and communities might better navigate dress code debates.

It’S Time For The Fourth Circuit To Rethink Deshaney, Dale Margolin Cecka

Law Faculty Publications

In 2015, the Fourth Circuit heard Doe v. Rosa, in which the parent plaintiffs sought to extend civil liability to the Citadel’s president, for failing to protect their minor sons from sex abuse inflicted by one of the Citadel’s employees. In dismissing the matter, the Fourth Circuit followed precedent set by the Supreme Court years ago in Deshaney. This interpretation of Deshaney, however, is no longer valid in light of the growing number of sexual misconduct cases involving educational institutions. Strictly applying Deshaney encourages schools to place their interests higher than the security of their students. In …

The K-12 Funding Crisis, Kimberly J. Robinson

Law Faculty Publications

Current discussions about K-12 education often highlight the reforms that seek to improve the quality of schooling. Some of these measures—the common-core standards, teacher evaluation, and, most recently, the Every Student Succeeds Act—undoubtedly have the potential to improve educational opportunities for students. However, what is often missing from education reform conversations is how these reforms can create sustainable changes to the education system. We believe the system's very foundations are broken, and school funding is one of the most pressing issues in need of repair.

Education & Practice (Newsletter Of The Section On Education Of Lawyer, Virginia State Bar) - V. 25, No. 1 (Fall 2016), Dale Margolin Cecka

Law Faculty Publications

What You Do and Do Not Learn in Law School: A Family Law Associate’s Perspective

Hiring and Supervising New Lawyers: A Family Law Partner’s Perspective

Chair’s Column

Law Faculty News and News and Events Around the Commonwealth

Call for Nomination: William R. Rakes Leadership in Education Award

2016-2017 Board of Governors

Fisher’S Cautionary Tale And The Urgent Need For Equal Access To An Excellent Education, Kimberly J. Robinson

Law Faculty Publications

In this Comment, I argue that much greater care and attention must be paid to the educational opportunity gaps and resulting achievement gaps that prompt many colleges and universities to rely on affirmative action. Increased attention to greater equality and excellence in elementary and secondary education can help reduce or eliminate the need for affirmative action, which is an approach that fundamentally aims to ensure equality. Without additional attention to closing opportunity gaps, the Court may declare that the time has come for affirmative action to end, but the United States will not be equipped to maintain diverse, selective postsecondary …

Diversity Without Integration, Kevin Woodson

Law Faculty Publications

The de facto racial segregation pervasive at colleges and universities across the country undermines a necessary precondition for the diversity benefits embraced by the Court in Grutter — the requirement that students partake in high-quality interracial interactions and social relationships with one another. This disjuncture between Grutter’s vision of universities as sites of robust cross-racial exchange and the reality of racial separation should be of great concern, not just because of its potential constitutional implications for affirmative action but also because it reifies racial hierarchy and reinforces inequality. Drawing from an extensive body of social science research, this article explains …

Intellectual Property And The University: An Introduction, Jacob H. Rooksby

Law Faculty Publications

Higher education today faces many challenges. Adequately opening the doors of social mobility for students from diverse and non-traditional backgrounds. Rising tuition that has resulted in an entire generation of students emerging from college with student loan debt that can seem insurmountable. Declining state support of public institutions. Increased calls for institutions to contribute to local economies through job creation and workforce development. A growing administrative class in higher education that often only adds to bureaucracies and mounting costs instead of alleviating them. An increasing reliance on adjunct professors to teach core subjects and dwindling numbers of tenure-stream faculty. Urgent …

Disrupting Education Federalism, Kimberly J. Robinson

Law Faculty Publications

The ongoing expansion of federal influence over education in the United States provides a particularly salient time to consider how education federalism should be structured to achieve the nation's education goals. One ofthe nation's unfulfilled and yet essential education goals is to ensure that all students receive equal access to an excellent education. A variety of scholars and, most recently, the federal Equity and Excellence Commission have offered proposals for advancing this goal. By building on this growing momentum for reform,I argue that disrupting the nation's longstanding approach to education federalism-which I define as the balance of power between federal, …

How Reconstructing Education Federalism Could Fulfill The Aims Of Rodriguez, Kimberly J. Robinson

Law Faculty Publications

In the Rodriguez decision, the U.S. Supreme Court held that the plaintiffs did not have a right under the Constitution's Equal Protection Clause, which required the state of Texas to remedy disparities in funding for schools in high-wealth and low-wealth school districts. One of the principal reasons that the Court rejected the plaintiffs' claims was the need to maintain the current balance of power between the federal and state governments over education. Indeed, the Court acknowledged in Rodriguez that even though all equal protection claims implicate federalism, "it would be difficult to imagine a case having a greater potential impact …

Defining Domain: Higher Education's Battles For Cyberspace, Jacob H. Rooksby

Law Faculty Publications

Juliet famously mused, “What’s in a name? that which we call a rose / By any other word would smell as sweet.” The same cannot be said for Internet domain names. One’s inability to own a specific domain name has delayed product launches, caused companies to change names, and led to disputes with alleged cybersquatters. The utility of domain names has led to a robust secondary market of buyers and sellers, where domain names that encompass generic words, or are comprised of very few letters or numbers, often change hands for hundreds of thousands of dollars, or more. In short, …

Education & Practice (Newsletter Of The Section On Education Of Lawyer, Virginia State Bar) - V. 23, No. 2 (Spring 2015), Dale Margolin Cecka

Law Faculty Publications

Contents

William & Mary Hosts Capital Area Legal Writing Conference, by Laura Killinger, Director of the Legal Practice Program and Professor of the Practice at William & Mary Law School

Reliving Student Experiences at the Legal Writing Conference, by Kristina D. Rutledge, professor of advanced legal writing at Washington & Lee

Chair’s Column, Professor Jim Moliterno of Washington and Lee School of Law

Section’s Website Update

Retired Magistrate Judge B. Waugh Crigler Receives VSB Leadership in Education Award

2015 Annual Meeting

News and Events Around the Commonwealth

Law Faculty News

2014-2015 Board of Governors

Learning To Litigate: University Patents In The Knowledge Economy, Jacob H. Rooksby

Law Faculty Publications

Over the nearly two de cades since the publication of Academic Capitalism: Politics, Policies, and the Entrepreneurial University (Slaughter and Leslie 1997), the model of academic capitalism has become one of the more widely cited conceptual frameworks in the global literature on higher education. Works in the academic capitalist canon have relied on the two basic understandings of the theory of academic capitalism and the new economy, as articulated by Slaughter and Leslie (1997), Slaughter and Rhoades (2004), and Rhoades and Slaughter (2006). Rhoades and Slaughter (2006) summarize these two conceptual strands as “the increasing engagement of higher education institutions …

Universitytm: Trademark Rights Accretion In Higher Education, Jacob H. Rooksby

Law Faculty Publications

Colleges and universities are no strangers to intellectual property. In a higher education environment increasingly challenged by dwindling state appropriations and stagnant or declining tuition revenue, the pressure is on for colleges and universities to generate revenue via new channels. The commercialization of intellectual property has proven to be a popular, albeit imperfect, vehicle in furtherance of these efforts. Although there is no shortage of both legal and higher education commentary focusing on the treatment of patents and copyrights by institutions of higher education, trademark activity by colleges and universities largely has escaped attention. ...

The High Cost Of The Nation's Current Framework For Education Federalism, Kimberly J. Robinson

Law Faculty Publications

This Article will show the consistent ways that the current understanding of education federalism within the United States has hindered three of the major reform efforts to promote a more equitable distribution of educational opportunity: school desegregation, school finance litigation, and, most recently, NCLB. In exploring how education federalism has undermined these efforts, this Article adds to the understanding of other scholars who have critiqued these reforms and examined why the nation has failed to guarantee equal educational opportunity. For example, scholars have argued that the failure to undertake earnest efforts to achieve equal educational opportunity is caused by a …

Myriad Choices: University Patents Under The Sun, Jacob H. Rooksby

Law Faculty Publications

How universities handle potentially patentable discoveries made by their faculty reflects important policy decision that affect the greater public. While few research administrators in higher education would dispute that any university-owned patent should be used for society's benefit, the relationship between patents and the public good may be less apparent to those whose primary familiarity with patents stems from recent news reports of "patent trolls" and billion-dollar battles in the smartphone industry. ...

When Tigers Bare Teeth: A Qualitative Study Of University Patent Enforcement, Jacob H. Rooksby

Law Faculty Publications

The pursuit of patents is a key avenue of economic development and revenue generation for American research universities, and one with significant policy implications for higher education. In a time of shifting funding models for higher education, the $1.8 billion dollars American universities generated in revenues in 2011 from licensing their patents makes patenting an attractive candidate for further university attention and resource investment. Spurred in part by the Bayh-Dole Act of 1980, research universities across the country have created vast institutional  apparatuses—typically centered in technology transfer offices (“TTOs”)—to help move ideas invented in the laboratory and classroom into commercial …

"Hope And Despondence": Emerging Adulthood And Higher Education's Relationship With Its Nonviolent Mentally Ill Students, Susan P. Stuart

Law Faculty Publications

No abstract provided.