Education Law Commons^™

Channeling A Federal Commitment To Education Through State Constitutions And Courts, Nicole Sunderlin, Evan Caminker

Journal of Race, Gender, and Ethnicity

This article examines the evolution of efforts to secure a federal right to education, highlighting the unsuccessful attempts at the federal level and the shift to state constitutional litigation, which has yielded mixed and limited outcomes. Part I outlines these failed efforts and their consequences. Part II introduces Professor Black’s proposal for a federal right to education, anchored in the State Citizenship Clause. Part III presents a new federalism model that suggests federal constitutional commitments should guide the interpretation of state constitutional provisions, particularly regarding education. The article concludes by advocating for state courts to adopt a more robust interpretation …

Leandro V. State: The Challenges Of Litigating School Funding Equity In Hyper-Partisan Times, Mark Dorosin

Journal of Race, Gender, and Ethnicity

The Leandro case serves as a critical case study highlighting the limitations of litigation in addressing educational inequities, particularly in states committed to undermining public education. Despite the judiciary's constitutional role as an independent check on legislative actions, the politicization of state supreme courts has transformed them into partisan entities. This shift erodes public trust in the legal process and disproportionately harms marginalized groups, many of whom have historically relied on the courts to safeguard their constitutional rights, including equitable access to public education. The Leandro case underscores the challenges of achieving meaningful educational reform through litigation in a highly …

Protecting Students’ Right To Listen By Statute, Noah C. Chauvin

Journal of Race, Gender, and Ethnicity

This article argues that First Amendment challenges to book bans in public school libraries, based on the right to receive information, are unlikely to succeed. Even if such bans clearly violate students' rights, constitutional litigation is slow and unpredictable, and courts may not consistently support these challenges. Therefore, instead of relying solely on litigation, opponents of book bans should pursue legislative change. The paper proposes a model statute that advocates and legislators can use to ban book bans. It also acknowledges the complexities of terminology and scope, defining "book bans" as decisions to restrict or remove materials from school libraries, …

Idea Manifestation Determination Review As Restorative Practice, Matt Saleh, Barbara J. Hickman, Angela M. T. Prince, Lawanda H. Cook, Jackie Bickford, Kristie Chu, Erika Kitsantas

Journal of Race, Gender, and Ethnicity

This article examines the Individuals with Disabilities Education Act (IDEA), which guarantees students with disabilities access to a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE). The IDEA aims to provide equal educational opportunities for students with disabilities, addressing inequitable exclusions from public schools. Despite its protections, including procedural safeguards like the Manifestation Determination Review (MDR), which prevents unjust removal due to disciplinary actions, students with disabilities remain disproportionately affected by suspensions, expulsions, and arrests, with these disparities exacerbated by race, poverty, and other intersectional factors. The essay highlights compliance concerns with the MDR, particularly its inconsistent …

Ai As A Tool For Education Equity: A Review Of Recent Literature, Jace F. Peterkin-Rawls, J.D.

Journal of Race, Gender, and Ethnicity

This article addresses the challenges faced by one in five children in the United States who have learning or thinking differences, disabilities, or disorders. Despite existing resources like Individualized Education Plans (IEPs) and 504 plans, many students with learning disabilities struggle due to insufficient personalization, limited teacher support, and inadequate funding. The article explores the potential of Artificial Intelligence (AI) to enhance current educational resources and better support these students. It provides an overview of common learning disabilities and existing support mechanisms, followed by a discussion of the ethical implications of AI in education from four scholars. The article then …

Defense Against The Dark Arts: The Diversity Rationale And The Failed Affirmative Defense Of Affirmative Action, Sheldon Bernard Lyke

Faculty Publications & Other Works

Over the past forty years, affirmative action advocates have participated in a defensive campaign where they have admitted that affirmative action is a form of justified discrimination. This Article finds this a dangerous strategy because it allows for the practice of misguided beliefs about race and remedies for racism. When schools fail to fight the pernicious perception that affirmative action is a racial preference, they allow the bulk of society to participate in the belief that there are no other remedial justifications for affirmative action-like remedying an institution's history of discrimination, or curing a school's present and ongoing discrimination by …

From Garcetti To Kennedy: Teachers, Coaches, And Free Speech At Public Schools, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This Article analyzes Kennedy's implications for educators' free speech rights at school. It is important to note, at the outset, that the Kennedy majority's description of the actual facts at issue is highly debatable. Indeed, the majority presented a sanitized account of what actually occurred on the ground, minimizing the highly public nature of Kennedy's prayers and the football players' involvement in them. That said, if we take the facts as the majority presented them, and then move to the majority's assessment of those facts, we emerge with an interesting gloss on Garcetti. Synthesizing Garcetti and Kennedy points toward a …

Book Review—Shaping The Bar: The Future Of Attorney Licensing, Kevin P. Lee

Dickinson Law Review (2017-Present)

No abstract provided.

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

Scholarly Works

No abstract provided.

Defense Against The Dark Arts: The Diversity Rationale And The Failed Affirmative Defense Of Affirmative Action, Sheldon Bernard Lyke

Washington and Lee Law Review

Over the past forty years, affirmative action advocates have participated in a defensive campaign where they have admitted that affirmative action is a form of justified discrimination. This Article finds this a dangerous strategy because it allows for the practice of misguided beliefs about race and remedies for racism. When schools fail to fight the pernicious perception that affirmative action is a racial preference, they allow the bulk of society to participate in the belief that there are no other remedial justifications for affirmative action—like remedying an institution’s history of discrimination, or curing a school’s present and ongoing discrimination by …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

Alchemizing The Bar: An Examination Of Global Ethical Considerations For Using Alternatives To Animals In Research, Testing, And Education, Lenore M. Montanaro

Animal Law Review

Countries regulate scientific research in various ways. Such structures are the result of input from scientists, attorneys, physicians, advocates, and others. These schemes may also derive from outcomes of the research itself. Some countries do not incorporate or require the ethical use of an animal—or an alternative to the use of an animal—to be considered. Others do incorporate, and even require, the ethical use of animals in research. In alignment with The Three Rs—replacement, reduction, and refinement of animals used in science—technological capabilities now allow scientists to increasingly use alternatives, such as microphysiological systems, rather than animal models. This Article …

From Suspension To Mass Incarceration: Punishment Of Student With Special Needs And The School-To-Prison Pipeline, Bailey Ellicott

Law Student Publications

Since their inception in the late 1980s, zero-tolerance policies have been a cornerstone of American school discipline. Passed by legislators with the intent of protecting school children, these policies have disparately upended the education of marginalized students. School discipline of vulnerable students often paves the way to juvenile incarceration, which in turn exponentially increases the likelihood of adult incarceration. Moreover, students with disabilities, especially students of color with learning disabilities, are often physically pushed out of their classrooms through suspensions and other harsh disciplinary policies. This is only made worse by the presence of law enforcement in schools, who treat …

Origin Stories: The Three Godmothers Of Title Ix, Susan Ware

Roger Williams University Law Review

No abstract provided.

Why I Will Not Stop Teaching Law Students To Think Critically About Race: The Attack On Teaching About The Role Of Race In Law, Leroy Pernell

Journal Publications

As someone who has been involved in legal education teaching for over 40 years and as someone who was drawn to legal education as an alternative to a career more directly devoted to litigation concerning racial justice, so that others might be encouraged to explore critically both what race has meant to our legal system and how we might collectively counter its negative influence, the “Stop W.O.K.E act” presents a real and present danger. Thus, in August of 2022 I agreed to be the lead named plaintiff in Pernell, et. al. v. Florida Board of Governors of the State University …

Breaking Barriers: Examining The Impact Of Special Education Services On Juvenile Justice Involvement, Madison Neale

Law Student Publications

The following article is an exploration of the intersection between special education—namely, the long-repudiated practice of removing children with moderate disabilities from general education classrooms and placing them into “self-contained” classrooms away from their peers—and the involvement of those children in the criminal legal system. The article analyzes the parallels between the “othering” effect of segregating children with disabilities in schools, and the eventual segregation from their communities that they face in juvenile detention facilities. In a juvenile justice system where a disproportionate number of its children have been diagnosed with some form of intellectual or behavioral disability, this article …

Do Dyslexia Laws Help Students With Visual Impairments Receive Needed Reading Supports? A Mixed-Methods Approach., Lindsay N. Harris, Johnnie Jones, Molly Pasley, Lisa Liberty, Tiffany Puckett

CISLL Publications

Teachers of students with visual impairments (TSVIs) have long expressed frustrations about the difficulty of getting a dyslexia diagnosis for students with visual impairments, but there is limited data to validate their concerns. Moreover, although most U.S. states have passed dyslexia laws that require universal screening and/or intervention for students with dyslexia, the laws may not be applied equally across all populations of students. A mixed-methods approach can validate TSVIs’ perspectives by revealing whether dyslexia legislation is associated with TSVIs’ perceptions of how their students’ needs are being met. To this end, we conducted a qualitative analysis of TSVI survey …

After Affirmative Action: Contextual Admissions And The Future Of African American Law School Enrollment, Nathan L. Bennett Fleming

Oklahoma Law Review

No abstract provided.

"Exceedingly Unpersuasive” - Discrimination, Transgender Students, And School Bathrooms, Mark Dorosin

Journal Publications

This Article is organized chronologically, in an effort to more effectively reflect the nearly identical fact patterns, timelines, and intersecting opinions of these cases. Part I provides the factual background of both cases. Part II summarizes the substantial preliminary litigation in Grimm; Part III examines the district court ruling in Adams; Part IV analyzes the summary judgment ruling in Grimm. Part V covers Adams’ first appellate ruling; Part VI discusses the Fourth Circuit’s ruling in Grimm three weeks later, and Part VII considers the aftermath of that decision. Parts VIII and IX explore the second panel ruling in Adams and …

Moving Forward Together: Asian Americans And Allyship In A Non-Black-And-White America, Harvey Gee

University of San Francisco Law Review

No abstract provided.

Fight Like A Girl: Holding Schools Accountable For Punishing Female Students' Sexuality In Violation Of Title Ix, Angela Garcia

University of San Francisco Law Review

No abstract provided.

Centering Students’ Rights In Our Democracy: A Case Study From Maryland’S Eastern Shore, Samantha C. Pownall

Articles & Chapters

No abstract provided.

The Intersection Of Special Education And Family Law: Thoughts For Family Law Attorneys In Divorce And Custody Cases, Richard D. Marsico

Articles & Chapters

The Individuals with Disabilities Education Act (IDEA) requires participating states to provide a free appropriate public education (FAPE) to children with disabilities. The IDEA gives parents of children with disabilities significant rights and major responsibilities in developing and maintaining their child’s education. Getting the most out of the IDEA for their children requires parents to commit substantial time and financial resources that are difficult to provide in the best circumstances. When parents are having marital difficulties, separated, undergoing a divorce, or negotiating child custody, these difficulties can be exacerbated as parents navigate the intersection of the federal IDEA and state …

A License To Discriminate: The Risky Next Step Of Religious Charter Schools, Vania Blaiklock

Scholarly Articles

From 2017 to 2022, the Supreme Court strengthened its First Amendment Free Exercise jurisprudence by deciding that states can provide aid to religious educational institutions through general benefit programs. Six months after the Court’s most recent religious aid case, Carson v. Makin, Oklahoma’s Attorney General stated that he would no longer enforce the nonsectarian provision of the state’s public charter statute because it was unconstitutional under Carson and its progeny. That opinion initiated the application and 2023 approval of the first religious charter school, St. Isidore of Seville Catholic Virtual School by Oklahoma’s Virtual Schoolboard. Immediately, state litigation ensued, …

The Childhood Sexual Assault Pandemic: California Must Do Better, Monica Chinchilla

University of San Francisco Law Review

No abstract provided.

Critical Race Theory Model Measure And Implementation In Curriculum, Taifha Natalee Alexander, Ahilan Arulanantham

Faculty Publications

(Excerpt)

This memorandum aims to explain the purpose of the following model measure. The proposed legislation would preserve the freedom of teachers to teach—and students to learn—about racism, including its history and on-going effects in this country. It does this by providing a framework through which state governments can encourage the teaching and learning of Critical Race Theory ("CRT") principles as a lens through which to teach and learn about racial inequality in America, its history, and its current manifestations, to enhance K-12 public school curricula.

We believe the model measure should be of interest to a broad range of …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …