Education Law Commons^™

A Rpl In Time: A Brown Buffalo's Observations On The Ongoing Struggle Of Civic And Racial Nationalism In Higher Education - Circa 2023, Tom I. Romero Ii

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No abstract provided.

529 Plans And School Choice, Victoria J. Haneman

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Some politicians believe that market-based approaches to education will meaningfully reshape public education in the United States. Advocates of school choice insist that competition for students will improve academic outcomes, drive innovation and improvement, and reduce political interference in the education system. Critics believe that there is little empirical support for any of these claims and fear that school choice policies worsen the problem of educational inequality. Although consumer choice is appealing, making an informed choice requires parents to navigate complicated application processes and transportation requirements, which may prove insurmountable to low-income families. The net effect of this is that …

Deflect, Delay, Deny: A Case Study Of Segregation By Law School Faculty, Briana Rosenbaum

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Many histories of school desegregation litigation center on the natural protagonists, such as the lawyers and plaintiffs who fought the status quo. Little attention is paid to the role that individual faculty members played in the perpetuation of segregated legal education. When the antagonists in the historiographies do appear, it is usually as anonymous individuals and groups. Thus, “the Board of Regents” refused to change its policy and “the University” denied a person’s application.

But recently discovered and rarely accessed historic documents provide proof of the direct role that some law school faculty members played in the perpetuation of segregation. …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

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Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement's presence squarely in the racist history of policing and school policing the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools must …

The Slippery Discourse Of Sexual Consent: Feminist Acumen And Feminist Excess, Dan Subotnik

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No abstract provided.

The Role Of Lawyers In Bridging The Gap Between The Robust Federal Rights To Education And Relatively Low Education Outcomes In Guatemala, Maryam Ahranjani

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Relative to other countries in the world and in Central America, the Guatemalan Constitution and the federal education law include a robust and detailed right to education. However, literacy rates and secondary educational attainment, particularly for Indigenous people and young women living in rural communities, remain low. The COVID-19 pandemic has only exacerbated disparities. Once children return to schools after the pandemic, the gaps will be even larger. Lawyers can play a critical role in making the strong Constitutional right to education more meaningful.

Restoring Student Press Freedoms: Why Every State Needs A 'New Voices' Law, Clare R. Norins, Taran Harmon-Walker, Navroz Tharani

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Scholastic journalists across America have long provided vital reporting, commentary, and fresh perspective on issues of public concern to their readers. Never has this been more true than in the current age of dwindling print media, where scholastic journalists at both the high school and post-secondary levels are stepping in to populate what would otherwise be news deserts. Yet the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), allows school officials to censor both the content and style of school-sponsored media without offending the First Amendment. This essay traces the history of student speech rights …

Private Schools' Role And Rights In Setting Vaccination Policy: A Constitutional And Statutory Puzzle, Hillel Y. Levin

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Measles and other vaccine-preventable childhood diseases are making a comeback, as a growing number of parents are electing not to vaccinate their children. May private schools refuse admission to these students? This deceptively simple question raises complex issues of First Amendment law and statutory interpretation, and it also has implications for other current hot-button issues in constitutional law, including whether private schools may discriminate against LGBTQ students. This Article is the first to address the issue of private schools’ rights to exclude unvaccinated children. It finds that the answer is “it depends.” It also offers a model law that states …

Covid-19 And Individuals With Developmental Disabilities: Tragic Realities And Cautious Hope, Samuel J. Levine

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The COVID-19 pandemic has cast the United States, along with the rest of the world, into a time of crisis and uncertainty unlike any other in recent memory. Months into the pandemic, there is scant agreement among scientists, government officials, and large segments of the public, both domestic and abroad, as to determining the causes and workings of the virus, designing appropriate and effective responses to the outbreak, and constructing accurate assessments of the future—or even of the present. Indeed, the availability of concrete information about the virus and its effects is grossly inadequate and often replaced by anecdotal or …

Should I Stay Or Should I Go: Student Housing, Remote Instruction, Campus Policies And Covid-19, Patricia E. Salkin, Pamela Ko

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In March 2020, as the world scrambled to understand and address myriad public health and economic challenges unfolding from the novel coronavirus labeled COVID-19, higher education was forced into a tailspin. This article examines the legal and policy challenges that result from, among other issues, the congregate housing situations existing for on- and off-campus housing at colleges and universities. The legal issues demonstrate federalism at work and include; at the federal level, regulations and guidance from the White House, the Center for Disease Control (CDC) and the U.S. Department of Education; at the State level from gubernatorial executive orders, state …

Federal Financing Of Higher Education At A Crossroads: The Evolution Of The Student Loan Debt Crisis And The Reauthorization Of The Higher Education Act Of 1965, Camilla E. Watson

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Currently, there are 44.2 million Americans holding student loan debt collectively totaling $1.5 trillion. This massive debt has a profound effect, not only on the lives of the debtors, but also on the national economy because it prevents the debtors from buying homes and cars and creating new businesses. This debt is also speculated to be a likely trigger for the next housing bubble because student loans, like the subprime mortgage loans underlying the 2008 financial crisis, are securitized and sold to investors. But many of those with student loans struggle to find jobs that will enable them to pay …

A Dream Still Deferred: The Unlawful Use Of Student Fees For Instructional Technology In An Alabama Public School Causing A Disparate Impact For Minority Children, Taurus Myhand

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In framing the United States Constitution, the public education mandate was reserved for the states to strengthen, not weaken, the efforts of the governments to provide an education for the people. However, there are far too many instances where equal access to educational opportunities is still a dream deferred for many racial and ethnic minority children that are enrolled in public school systems throughout the United States. That is particularly the case for racial and ethnic minority students at one public school system in Alabama. This Note explores the constitutional issues raised by Pike Road School System’s use of mandatory …

Universities As “Sanctuaries”, Maryam Ahranjani

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When Donald Trump, a businessman and reality television personality with antiimmigrant views, was elected President of the United States in November 2016, thousands of students, faculty and staff at many colleges and universities around the country implored their institutions to affirmatively declare themselves sanctuaries for undocumented students. Enjoying support both from the estimated 200,000 undocumented university students and other stakeholders, the movement gained quite a bit of momentum, but many contentious battles also have occurred. According to the author's empirical analysis, only twenty of the more than 5,000 institutions of higher education in the United States have adopted the sanctuary …

Realizing Restorative Justice: Legal Rules And Standards For School Discipline Reform, Lydia Nussbaum

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Zero-tolerance school disciplinary policies stunt the future of school children across the United States. These policies, enshrined in state law, prescribe automatic and mandatory suspension, expulsion, and arrest for infractions ranging from minor to serious. Researchers find that zero-tolerance policies disproportionately affect low-income, minority children and correlate with poor academic achievement, high drop-out rates, disaffection and alienation, and greater contact with the criminal justice system, a phenomenon christened the "School-to-Prison Pipeline."

A promising replacement for this punitive disciplinary regime derives from restorative justice theory and, using a variety of different legal interventions, reform advocates and lawmakers have tried to institute …

The Future Of Lower-Income Students In Higher Education: Rethinking The Pell Program And Federal Tax Incentives, Camilla E. Watson

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As the costs of higher education have soared, the value of Pell grants has declined, making it more difficult for lower-income students to obtain an education without being hopelessly mired in debt. This article traces the evolution of the Pell program and discusses the diametrically opposed proposals of Presidents Obama and Trump to reform federal funding for higher education. The article proposes an alternative plan that would require a redirection of a portion of the funds from the Pell program and a reshuffling of the current tax incentives for higher education. The advantages of this proposal are that it would …

The Middle Class, Urban Schools, And Choice, Michael Lewyn

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It is common knowledge that middle- and upper-class parents tend to disfavor urban public schools, and often move to suburbs in order to avoid having to send their children to those schools. Thus, the condition of urban public schools contributes to suburban sprawl- that is, the movement of people and jobs from city to suburb.  This article discusses a variety of possible solutions to the unpopularity of urban schools among middle-class parents.  Part I of the Article suggests that this problem is a cause as well as a result of middle-class flight: that is, urban schools have poor reputations because …

The Prisonization Of America's Public Schools, Maryam Ahranjani

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No abstract provided.

Shame Agent, Joan W. Howarth

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As a nation, we have recently experienced a significant positive shift in norms against casual campus sexual violence. These changes are perhaps as dramatic as the attitudinal shifts over recent decades regarding drunk driving or cigarette smoking. In a world in which masculinity is too often associated with sexual conquest, and women still suffer under intense and conflicting pressures regarding their sexual behavior, pushing this potential transformation forward is both difficult and necessary. Enforcement of Title IX protections has become a crucial driver of much of this change.

This is an account of some of what I learned as a …

Reforming The Tax Incentives For Higher Education, Camilla E. Watson

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Federal spending on higher education has long been controversial, primarily because it has grown exponentially since the 1950s but it has produced a system which many regard as too expensive and grossly inefficient. The soaring costs are placing higher education beyond the reach of many Americans, and of those who enter college, less than half complete their degrees. Particular criticism has been directed toward the education tax incentives, enacted mostly in the late 1990s, which shifted federalfunding for higher education from direct benefits to students in the form of grants, loans and work-study programs to indirect benefits through the tax …

The Middle Class, Urban Schools And Choice, Michael Lewyn

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Urban schools tend to be less attractive to middle-class parents than suburban schools; as a result, the public school system generates suburban sprawl.  This talk discusses both egalitarian and market-oriented means of making cities more attractive to parents.

Special-Education Litigation: An Empirical Analysis Of North Carolina's First Tier, Lisa Lukasik

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Special-education litigation begins, under the terms of the Individuals with Disabilities Education Act (IDEA), with an “impartial due process” proceeding. States enjoy limited discretion to establish the manner by which they will effectuate this process. Variations in implementation exist. Most states offer a “single-tiered” process, and eight offer a “two-tiered” proceeding.

National debate about the effectiveness of these administrative proceedings has increased over the last decade. One contested question is whether a single-tiered or two-tiered administrative process better serves the objectives of the Act.

Meaningful empirical examination of these specialized proceedings has begun to inform this debate, but significant research …

Economic Inequality And College Admissions Policies, David Orentlicher

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As economic inequality in the United States has reached unprecedented heights, reformers have focused considerable attention on changes in the law that would provide for greater equality in wealth among Americans. No doubt, much benefit would result from more equitable tax policies, fairer workplace regulation, and more generous spending policies.

But there may be even more to gain by revising college admissions policies. Admissions policies at the Ivy League and other elite American colleges do much to exacerbate the problem of economic inequality. Accordingly, reforming those policies may represent the most effective strategy for restoring a reasonable degree of economic …

Beyond The Basketball Court: How Brittney Griner's In My Skin Illustrates Title Ix's Failure To Protect Lgbt Athletes At Religious Institutions, Leslie C. Griffin

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Symposium: Playing with Pride: LGBT Inclusion in Sports.

Unlike schoolteachers, janitors, coaches, food-service directors, organists, and other workers, professional athletes usually command center stage in society. Their successes and failures loom larger than life. Sometimes their prominent lives highlight themes hidden from public discussion or neglected by the majority. Professional basketball player Brittney Griner's autobiography does just that, by illuminating how "religious freedom" can undermine equality, especially LGBT equality.

Student Press Exceptionalism, Sonja R. West

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Constitutional protection for student speakers is an issue that has been hotly contested for almost 50 years. Several commentators have made powerful arguments that theCourt has failed to sufficiently protect the First Amendment rights of all students. But this debate has overlooked an even more troubling reality about the current state ofexpressive protection for student — the especially harmful effect of the Court’s precedents on student journalists. Under the Court’s jurisprudence, schools may regulate with far greater breadth and ease the speech of student journalists than of their non-press classmates. Schools are essentially free to censor the student press even …

The First Thing We Do, Jorge R. Roig

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There is currently a concerted effort to dumb down America. In the midst of this, the American Bar Association’s Council of the Section on Legal Education and Admissions to the Bar recently agreed to propose that tenure for law professors be eliminated as a requirement for accreditation of law schools. This article analyzes the arguments for and against tenure in legal academia, and concludes that the main proposed justifications for eliminating tenure are highly questionable, at best. A lawyer is more than a legal technocrat. Lawyers are policy makers and public defenders. They are prosecutors and activists. And the development …

Montana's Rural Version Of The School-To-Prison Pipeline: School Discipline And Tragedy On American Indian Reservations, Melina Healey

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American Indian adolescents in Montana are caught in a school-to prison pipeline. They are plagued with low academic achievement, high dropout, suspension and expulsion rates, and disproportionate contact with the juvenile and criminal justice systems. While these are typical of the school-to-prison phenomenon as it also appears in poor minority communities across the country, the rates and the disproportion for American Indians in Montana are particularly acute. Even more disturbing, many American Indian students in Montana are also the victims of another heartbreaking trend related to the school-to-prison pipeline — alarming levels of adolescent suicides and self-harm. The tragic situation …

Tax Credit Scholarship Programs And The Changing Ecology Of Public Education, Hillel Y. Levin

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The traditional model of public education continues to be challenged by advocates of school choice. Typically associated with charter schools, magnet schools, and tuition voucher programs, these advocates have recently introduced a new school choice plan, namely tax credit scholarship programs. More than a dozen states have adopted such programs, and hundreds of millions of dollars are now diverted each year from public programs to private schools. These programs are poorly understood and under-studied by legal scholars. This Article assesses the place of these programs within the ecology of public education, considers the fundamentally different approaches states have taken to …

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

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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 …

How I Rode The Bus To Become A Professor At The University Of Denver Sturm College Of Law; Reflections On Keyes's Legacy For The Metropolitan, Post-Racial, And Multiracial Twenty-First Century, Tom I. Romero Ii

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No abstract provided.

The School-To-Prison Pipeline Tragedy On Montana's American Indian Reservations, Melina Healey

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American Indian adolescents in Montana are caught in a school-to-prison pipeline. They are plagued with low academic achievement, high dropout, suspension and expulsion rates, and disproportionate contact with the juvenile and criminal justice systems. This phenomenon has been well documented in poor, minority communities throughout the country. But it has received little attention with respect to the American Indian population in Montana, for whom the problem is particularly acute. Indeed, the pipeline is uniquely disturbing for American Indian youth in Montana because this same population has been affected by another heartbreaking and related trend: alarming levels of adolescent suicides and …