Education Law Commons^™

The School Civil Rights Vacuum, Emily Suski

Faculty Publications

Recent cases of pervasive sex abuse at universities, including those committed by Larry Nassar at Michigan State University and by Jerry Sandusky at Pennsylvania State University, demonstrate the limitations of Title IX as a tool for protecting college students. What has gone far less recognized is that in the K–12 public school context, Title IX and other civil rights laws, including the Fourteenth Amendment, are at least as ineffective at protecting students from sexual, physical, and verbal abuse and harassment. Public school students rarely succeed on Fourteenth Amendment or Title IX claims, even in some of the most egregious cases. …

Just Another School: The Need To Strengthen Legal Protections For Students Facing Disciplinary Transfers, Miranda Johnson

Faculty Publications & Other Works

Over the past decade, there has been increasing national, state, and local attention focused on the negative impacts of school expulsion and suspension. As a result of the well-documented and long-standing research showing the harm to students of exclusionary school discipline practices, states and school districts have begun reforming their policies and practices to limit the use of suspensions and expulsions. Many of these new reforms, however, have not included changes to provisions in state law and district policies allowing for students to be transferred from their neighborhood schools to alternative schools for disciplinary reasons. In this article, we argue …

The Implied Promise Of A Guaranteed Education In The United States And How The Failure To Deliver It Equitably Perpetuates Generational Poverty, Anjaleck Flowers

Mitchell Hamline Law Review

No abstract provided.

Adequate Education: The Disregarded Fundamental Right And The Resurgence Of Segregation Of Public Schools, Neubia L. Harris

Mitchell Hamline Law Review

No abstract provided.

School Finance Litigation And The Separation Of Powers, Larry J. Obhof

Mitchell Hamline Law Review

No abstract provided.

Walking Out: Schools, Students, And Civil Disobedience, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

This Article begins in Part I by reviewing the history and impact of youth civil disobedience and the special issues school walkouts raise. Part II then discusses the legal doctrines that guide school administrators and courts as they aim to strike a suitable balance between free expression and the day-to day operations of a school. Part III analyzes the different approaches school districts have taken, and offers specific advice to school districts dealing with future walkouts. Part IV cautions that the only constitutionally permitted response by school districts is to subject students to the same consequences they would face for …

In The Room Where It Happens: Including The "Public's Will" In Judicial Review Of Agency Action, Twinette L. Johnson

Journal Articles

In the context of higher education reform, the people need to be in the important rooms where the decisions are being made. One such room is the courtroom. This essay elaborates on this premise, previously written about in an article I wrote entitled, 50,000 Voices Can’t Be Wrong, But Courts Might Be: How Chevron’s Existence Contributes to Retrenching the Higher Education Act. That article was the second in a series of three articles on the retrenchment of the Higher Education Act of 1965 (“HEA”) using the William Eskridge and John Ferejohn statutory entrenchment model.

Why Are 99% Of The Applications For Debt Discharge Under The Public Service Loan Forgiveness Program Being Denied, And Will This Change?, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

During the first 18 months after October 1, 2017 that student loan borrowers were able to apply for tax-free debt forgiveness under the Public Service Loan Forgiveness program a striking 99% of the 76,002 applications that have been fully processed have been denied. The more recently adopted Temporary Expanded Public Service Loan Forgiveness program also has a 97% to 99% application denial rate, depending on how it is calculated. This short article discusses the various factors that may be contributing to such a bizarrely high denial rate, and why the number of applications filed and the proportion of applications filed …

Lawyer Wellbeing As A Crisis Of The Profession, Cheryl Ann Krause, Jane Chong

South Carolina Law Review

No abstract provided.

Penalty Or Damages? Are There Limits To Liquidated Damages Provisions In Teacher Employment Contracts

Florida A & M University Law Review

This Article examines the validity of liquated damages provisions with regard to teacher contracts and the appropriateness of their use. Part II addresses the law of liquidated damages generally. Part III discusses one Georgia case brought by two teachers against DCSD for enforcement of its liquidated damages provision as an attempt to force the teachers to stay with the District. Part IV summarizes a review of various teacher employment contracts and types of liquidated damages clauses incorporated therein. Part IV concludes with a discussion of various issues that school districts ought to take into consideration to enhance teacher retention and …

Enforcing The Right To Public Education, Areto A. Imoukuede

Journal Publications

This paper suggests that although each state within the United States currently recognizes a right to public education, the states do not provide meaningful and consistent judicial enforcement of the right. Recognizing a federal fundamental right to public education would be a step towards ensuring meaningful and consistent judicial enforcement of the right.

The Transformation Of Marriage As A State Institution, John Makdisi, June Mary Zekan Makdisi

Faculty Articles

The first section of this essay explores why the good of children requires the institution of marriage to promote the procreation of children by the act of physical-spiritual love between a man and a woman. The second section explores why the good of children requires the institution of marriage to promote the upbringing of children by the lasting, exclusive, and faithful commitment of the couple. The third section explains why Obergefell's removal of the requirement of a legal union between a man and a woman as an essential aspect of marriage not only destroys the function of the marriage institution …

"Tinkering" With Student Rights: School Walkouts And The Implications Of Discipline Practice And Policy On Students' Right To Protest, Hannah Weissler

Scripps Senior Theses

In this study, I examine the extent to which students’ rights to free speech and expression were violated in response to the nationwide school walkouts that took place during the spring of 2018. Students hold the right to political speech and expression under the landmark Supreme Court Case, Tinker v. Des Moines (1969). However, the rights students maintain to participate in protest during school hours is somewhat unclear. Using a two-pronged case study analysis, I explore the question of student rights and potential violations in the face of protest through examining school disciplinary responses alongside disciplinary policy and disciplinary policy …

The People V. Their Universities: How Popular Discontent Is Reshaping Higher Education Law, Ben Trachtenberg

Kentucky Law Journal

No abstract provided.

Colombian Constitutionalism: Challenging “Judicial Supremacy” Through Pluralism, Santiago Garcia-Jaramillo

Cardozo International & Comparative Law Review

The article critically examines the role of judicial review in Colombia, particularly the Constitutional Court's expanding power, and argues for a more restrained approach to prevent judicial supremacy. It emphasizes the importance of pluralism and democratic decision-making, suggesting that controversial issues should be resolved through elected institutions rather than the judiciary. The analysis advocates for institutional reforms to strengthen Congress and ensure accountability, promoting a balance between judicial oversight and democratic processes.

Cyberbullying: Are You Protected? An Analysis And Guide To Effective And Constitutional Cyberbullying Protections, Mendel Forta

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Externships As A Vehicle For Teaching Access To Justice, Spring Miller

Vanderbilt Law School Faculty Publications

As a relatively new externship instructor, I spend a lot of time thinking about externships – what they mean for our students, what they add to the clinical curriculum and law school curriculum more broadly, and how best to conceptualize and make the most of these courses that constitute one of the most prevalent forms of experiential legal education.

Thanks to the work of experienced externship instructors and scholars, there are now a number of resources and articles exploring externships’ promise in promoting student learning with regard to lawyering skills and professional development. I have relied on many of these …

A School Divided: A Historicist Legal Analysis Of Good Spirit School Division No 204 V Christ Teacher Roman Catholic Separate School Division No 212, Edward (Ted) R. Lewis

Dalhousie Journal of Legal Studies

On the cusp of a judgment by the Saskatchewan Court of Appeal, this article examines the 2017 Saskatchewan Court of Queen’s Bench decision in Good Spirit School Division No 204 v Christ the Teacher Roman Catholic Separate School Division No 212. In this case, the SKQB ruled that non-Catholic students attending a publicly funded Catholic school were not entitled to per-student funding grants administered by the provincial government. This article reviews the case using a historicist lens informed by the philosophy of Edmund Burke, which the author suggests is appropriate in the Canadian constitutional context. Through this constitutional lens, the …

Keynote: The Protection Of Lgbt Youth, Craig Konnoth

Publications

This keynote contains three parts. Part I addresses the intersection of two metaphors: medicine and childhood in LGBT Rights. Part II addresses the state regulation of LGBT youth. Part III offers Professor Konnoth's concluding remarks on the protection of LGBT youth.

Understanding Racial Inequity In School Discipline Across The Richmond Region, Genevieve Siegel-Hawley, Adai Tefera, David Naff, Ashlee Lester, Jesse Senechal, Rachel Levy, Virginia Palencia, Mitchell Parry, Morgan Debusk-Lane

MERC Publications

This report comes from the MERC Achieving Racial Equity in School Disciplinary Policies and Practices study. Launched in the spring of 2015, the purpose of this mixed- method study was to understand the factors related to disproportionate school discipline outcomes in MERC division schools. The study had two phases. Phase one (quantitative) used primary and secondary data to explore racial disparities in school discipline in the MERC region as well as discipline programs schools use to address them. Phase two (qualitative) explored the implementation of discipline programs in three MERC region schools, as well as educator and student perceptions …

Return Of The Campus Speech Wars, Thomas Healy

Michigan Law Review

Review of Erwin Chemerinsky and Howard Gillman's Free Speech on Campus.

The Supreme Court And Public Schools, Erwin Chemerinsky

Michigan Law Review

Review of Justin Driver's The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind.

An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw

Faculty Scholarship

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …

Peril And Possibility: Strikes, Rights, And Legal Change In The Era Of Trump, Kate Andrias

Faculty Scholarship

Thank you, I am delighted to be here. When Professor Fisk and the editors of the Journal asked if I would be willing to give the Feller Lecture this year, I did not hesitate for a moment. It goes without saying that, for a labor law professor, to give a lecture that commemorates David Feller is truly a special honor. While I never had the chance to meet him, his work as an advocate and scholar serves as an example for everyone in the field. I am grateful to the Journal and to the Feller family for the opportunity to …

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 …

There Isn't Any Dumpster, Jill C. Engle

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Forgotten Children: Rethinking The Individuals With Disabilities Education Act Behavior Provisions, Margaret A. Dalton

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Mitigating The "Lgbt Disconnect": Title Ix's Protection Of Transgender Students, Birth Certificate Correction Statutes, And The Transformative Potential Of Connecting The Two, Kyle Velte

American University Journal of Gender, Social Policy & the Law

No abstract provided.

A Watershed Moment In The Education Of American Indians: A Judicial Strategy To Mandate The State Of New Mexico To Meet The Unique Cultural And Linguistic Needs Of American Indians In New Mexico Public Schools, Preston Sanchez, Rebecca Blum-Martinez

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Class In The Classroom: Poverty, Policies, And Practices Impeding Education, Chris Chambers Goodman

American University Journal of Gender, Social Policy & the Law

No abstract provided.