Education Law Commons^™

In Defense Of The Ten Commandments In Public Spaces: An Analysis Based On The Supreme Court’S New Judicial Standard, Songfeng Li

Arkansas Law Review

On June 19, 2024, Louisiana Governor Jeff Landry signed legislation mandating the display of the Ten Commandments in all public K-12 schools and colleges in the state. On June 21, 2024, Texas Lieutenant Governor Dan Patrick announced his intention to introduce a similar bill in the next legislative session that would require the display of the Ten Commandments in schools. Immediately after the Louisiana law’s enactment, a group of local parents with the help of multiple organizations filed a federal lawsuit seeking to block its implementation. As of today, the district court and appellate court have issued differing rulings. The …

Brief Of Notre Dame Education Law Project, Notre Dame Program On Church, State & Society, And Lindsay And Matt Moroun Religious Liberty Clinic Amici Curiae In Support Of Petitioners, Richard W. Garnett, Nicole Stelle Garnett, John A. Meiser

Court Briefs

No. 25-802
Foothills Christian Ministries v. Kim Johnson

On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Summary of Argument

The First Amendment guarantees religious institutions the power to conduct their internal affairs. Our Lady of Guadalupe School v. Morrissey- Berru, 591 U.S. 732, 746 (2020). See also Cath. Charities Bureau, Inc. v. Wisconsin Lab. & Indus. Review Comm'n, 605 U.S. 238, 249 (2025); id. at 255 (Thomas, J., concurring). This principle of self-governance, known as the church autonomy doctrine, is an essential feature of the Constitution’s …

Religious Freedom, Jesuit Mission, And Dei, William M. Treanor, Amelia J. Uelmen

Georgetown Law Faculty Publications and Other Works

The ability of Jesuit educational institutions to pursue a central part of their mission – that of fostering diverse, equitable and inclusive educational environments – is under attack. This essay outlines several dimensions of their religiously-grounded mission and the reasons to strongly protect from government interference the rights of Jesuit universities to implement programs and practices that align with DEI values. First, for Jesuit universities, these programs and practices are rooted in a much deeper culture of the more than 2,000-year old Catholic intellectual tradition and the now 500-year old tradition of Jesuit spirituality. Second, drawing on the classic work …

Time’S Up: Limiting Employer Retaliation Over K-12 Teachers’ Speech In An Internet That Never Forgets, Megan Listenbee

University of Arkansas at Little Rock Law Review

No abstract provided.

Wake Up: How Application Of Garcetti To Public Educator Speech Harms Educators And Students Through The Lens Of Florida's Individual Freedom Act, Lindsay Mccarthy

St. John's Law Review

(Excerpt)

Nearly twenty of the nation’s states have enacted some kind of law that limits the teaching of controversial topics like race, gender, and politics. Within the last three years, these laws have become more commonplace as social movements like Black Lives Matter and #MeToo have brought topics like systemic racism and gender inequality to the nation’s attention. As the country becomes more polarized, state legislatures—typically conservative ones—have resorted to these censorship laws to fight back against the perceived indoctrination of children. The state that has gained the most notoriety for such laws is Florida. In 2022, Florida passed a …

Whose Right(S)?: Civil Rights Impact Of Cultural Conflicts In The Curriculum, S. David Mitchell

Faculty Publications

Statutes seeking to prohibit the teaching of certain curricular topics that are considered divisive infringe upon the civil rights of students, parents, and teachers. The conflict over what should be taught implicates the rights of students, specifically their right to receive and to learn information; the rights of parents, specifically the right to control the education of their children; and the rights of teachers, specifically the First Amendment and academic freedom. “Anti-Woke” legislation, as it is broadly termed, is designed to silence those who seek to engage in the critical analysis of the structural and systemic barriers that have prevented …

Beyond The Ivy League: Stopping The Spread Of Antisemitism On American Campuses: Hearing Before The H. Comm. On Educ. & The Workforce, 119th Cong., May 7, 2025 (Statement Of David D. Cole), David Cole

Testimony Before Congress

In this testimony, submitted to the House Committee on Education and the Workforce for a hearing on antisemitism on campus, I sought to offer a legal framework for considering antisemitic speech on campus. The testimony cautions against equating criticism of Israel with antisemitism. But more importantly, it notes that even where speech is actually antisemitic, it is generally protected by the First Amendment (and therefore also protected by private university policies that protect free speech on campus). Title VI of the Civil Rights Act does not prohibit antisemitic speech, even virulently antisemitic speech. It prohibits discrimination on the basis of …

The Challenges Facing Academic Freedom And Free Speech, Keith E. Whittington

Catholic University Law Review

There are growing challenges to free speech and academic freedom on American college campuses. There is pressure from both the political left and the political right to suppress controversial speech on campus, and there are calls to restrict speech that come both from members of the campus community and from those beyond the campus gates. In this difficult environment, it is essential that academics both understand the principles of academic freedom and campus free speech and work to advocate for them.

Get Educated: Ask, Tell, And Say Gay, Matthew Oster

St. John's Law Review

(Excerpt)

On July 6, 1999, Private Barry Winchell was murdered in his sleep by a fellow soldier for dating a transgender woman. Superiors were aware that Private Winchell was being harassed for dating a transgender woman but took no action to stop it. U.S. Department of Defense Directive 1304.26, commonly referred to as “Don’t Ask, Don’t Tell” (“DADT”), was the policy for the United States military for nearly two decades beginning in 1993. A policy meant to protect “unit cohesion” instead itself engendered hatred and violence among servicemembers. Unfortunately, government-sanctioned discrimination against the LGBTQ+ community did not end with the …

In The Age Of Garcetti: Public Teachers' Free Speech Rights Within The Transgender-Student Debates, Hannah Bradvica

Pepperdine Law Review

A culture war over gender identity is playing out on the school playground, as conservative lawmakers across the country have introduced and implemented various pieces of anti-trans legislation focused on stripping away the privacy and expression of transgender students’ identities. An important question within this legislation remains: may public school teachers be exempt from following these policies? This Comment examines teachers’ free speech rights within two contexts: mandated parental notification of transgender-student policies and guidelines requiring teachers to adhere to students’ preferred pronouns. It considers the viability of compelled-speech claims brought by teachers, applying First Amendment jurisprudence and Garcetti v. …

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 …

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 …

“Change Is Inevitable”: How The First Amendment Safety-Valve Theory Can Expand Protections For Student Expression, Leslie Klein, Jonathan Peters

Indiana Journal of Law and Social Equality

This article challenges the traditional notion that the regulation and protection of student expression in public schools should be based primarily or exclusively on the marketplace theory, which often reinforces the status quo. The safety valve theory is more appropriate and should be applied, especially in the current political and social climate, to inspire an expansion of student speech and press rights that would support expressive activities seeking to change the public discourse around important issues. Students who can speak freely will be more willing to accept decisions that go against them, and a school environment in which passionate or …

Private Religious Schools And Disability Discrimination, Kevin Timpe

Touro Law Review

In the lead-up to the passing of the Americans with Disabilities Act (“ADA”), religious institutions and organizations lobbied to be exempt. Because they were successful in securing an exemption to most of the ADA’s requirements, religious private schools maintain the legal right to refuse admission to disabled students or to fail to give them various legal protections. After considering the arguments given in its favor, the paper critiques this exemption on moral grounds. It then suggests that these considerations should lead to a reexamination of the legal right such schools have to discriminate against disabled individuals, especially in those cases …

Lewd, Rude, Obscene, And… Violent? Analyzing Student Clothing Depicting Firearms Under The First Amendment’S Obscenity Test, Luke Gorman

Dickinson Law Review (2017-Present)

Today’s national news and social media have repeatedly exposed our school-age children to the effects of shootings occurring within their schools and communities. Each shooting brings with it commentary, sometimes from the students themselves. While in-school student speech is more limited than speech levied in the outside world, students do not shed their speech rights at the “schoolhouse gate.” As a result, courts have failed to outline a consistent approach for when a student will be punished for wearing a shirt depicting a firearm to school. This Comment addresses this delicate balance by proposing a consistent three-part test framed by …

Defendant St. Isidore Of Seville Catholic Virtual School's Reply Brief In Support Of Motion To Dismiss, Michael H. Mcginley, Steven A. Engel, M. Scott Proctor, John A. Meiser, Michael R. Perri, Socorro Adams Dooley

Court Briefs

No. CV-2023-1857
OKPLAC, Inc. v. Statewide Virtual Charter School Board

From the Introduction

Plaintiffs' opposition to the motions to dismiss distills their challenge to the State's approval of St. Isidore of Seville Catholic Virtual School to its essence: Plaintiffs believe that Oklahoma may never allow a religious organization to operate a charter school because (they contend) any faith-based school would violate the Charter Schools Act and the Oklahoma Constitution. Their other arguments-alleging technical errors in the State's decision to contract with St. Isidore and baseless speculation about how they predict the school might one day violate the law-grow from this …

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

Belmont Law Review

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 …

The Great "White" Way: Reconsidering Comprehensive Color-Conscious Casting Plans Through Affirmative Action, Commercial Speech, And Statutory Amendment, Jacob Franklin Greene

Belmont Law Review

This Note discusses the theatrical casting process from publishing a breakdown through audition day type outs and how this process exposes productions, theater companies, and Actor’s Equity Association (“AEA”) to potential liability. Part I provides a background on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981, as these are the federal antidiscrimination laws under which a lawsuit is most likely to arise. Part II explores the language of breakdowns, defines the concept of theatrical typing, and discusses the two predominant methods the theater industry frequently utilizes in casting shows. Likewise, …

Quiet Encroachments On School Prayer Jurisprudence, Amanda Harmony Cooley

West Virginia Law Review

No abstract provided.

Navigating The First Amendment In School Choice: The Case For The Constitutionality Of Washington’S Charter School Act, Stephanie Smith

Washington Journal of Social & Environmental Justice

No abstract provided.

The Worst Choice For School Choice: Tuition Tax Credits Are A Bad Idea And Direct Funding Is Wiser, Michael J. Broyde, Anna G. Gabianelli

Faculty Articles

School choice is on the rise, and states use various mechanisms to implement it. One prevalent mechanism is also a uniquely problematic one: the tax credit. Tax credits are deficient at equitably distributing a benefit like school choice; they are costly, and they invite fraud. Instead of using tax credits, states opting for school choice programs should use direct funding. Direct funding will more efficiently achieve the goals of school choice because it can be regulated like any other government benefit, even if it ends up subsidizing religious private schools.

Tax credits’ prevalence is not inexplicable, of course. It is …

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, …

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 …

Solidifying Students' Right To Gender Expression, Scott Skinner-Thompson

Publications

No abstract provided.

The First Amendment To The Constitution, Associational Freedom, And The Future Of The Country: Alabama’S Direct Attack On The Existence Of The Naacp, Helen J. Knowles-Gardner

Seattle University Law Review

Sixty years ago, on Wednesday, April 8, 1964, Professor Harry Kalven, Jr., gave the second of three lectures at The Ohio State University College of Law Forum. These lectures were published two years later in a book entitled The Negro & the 1st Amendment. In the second lecture, Kalven distinguished between direct and indirect threats to the associational freedom of the National Association for the Advancement of Colored People (NAACP). Kalven categorized the 1958 decision in NAACP v. Alabama ex rel. Patterson as an indirect effort to control the NAACP.

With the benefit of material obtained from numerous archival sources, …

Defendant St. Isidore Of Seville Catholic Virtual School's Reply Brief In Support Of Motion To Dismiss, Michael H. Mcginley, Steven A. Engel, M. Scott Proctor, John A. Meiser, Michael R. Perri, Socorro Adams Dooley

Court Briefs

No. CV-2023-1857
OKPLAC, Inc. v. Statewide Virtual Charter School Board

From the Introduction

Plaintiffs' opposition to the motions to dismiss distills their challenge to the State's approval of St. Isidore of Seville Catholic Virtual School ("St. Isidore") to its essence: Plaintiffs believe that the State of Oklahoma may never allow a religious organization to operate a charter school because (they contend) any faith-based school would violate the Charter Schools Act and the Oklahoma Constitution. They purport to raise other, purely technical errors in the Board's decision to partner with St. Isidore; they baselessly speculate about ways in which they predict …

Just Extracurriculars?, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Extracurricular activities have been the battleground for a striking number of Supreme Court cases set at public schools, from cases involving speech to religion to drug testing. Indeed, the two most recent Supreme Court cases involving constitutional rights at public schools--Kennedy v. Bremerton School District (2022) and Mahanoy Area School District v. B.L. (2021)--both arose in the extracurricular context of school sports. Even so, the Supreme Court has never fully clarified the status of extracurricular activities themselves. Once a school offers an extracurricular activity, is participation merely a privilege? Does the fact that extracurricular activities are voluntary for students affect …

Applying Militant Democracy To Defend Against Social Media Harms, Neil Netanel

Cardozo Law Review

Social media inflict multiple harms on liberal democracy. Online platforms thrive on propagating emotionally inflammatory content that maximizes user engagement. Too often that entails amplifying disinformation, hate speech, online extremism, and deep-seated partisan animosity. Tellingly, as documented in testimony before the House Select Committee to Investigate the January 6th Attack, in the weeks following the 2020 presidential election, Facebook, Twitter, YouTube, and Reddit knowingly enabled a firestorm of vitriolic far-right election denial on their platforms. In so doing, a Select Committee staff report concludes, the platforms “helped to facilitate the attack on January 6th.”

Education, The First Amendment, And The Constitution, Erwin Chemerinsky

University of Cincinnati Law Review

No abstract provided.

Policies Regulating Gender In Schools: Companion To Identity By Committee (2022), Scott Skinner-Thompson

Research Data

This document, Policies Regulating Gender in Schools: Companion to Identity by Committee (2022), https://docs.google.com/spreadsheets/d/1K6iUkLnmDfaSVykyRaZ3Yqt7XNM9leGO-MQA6p2VbV4/edit?usp=Sharing, was published as an electronic supplement to the article, Scott Skinner-Thompson, Identity by Committee, 57 Harv. C.R.-C.L. L. Rev. 657 (2022), available at https://scholar.law.colorado.edu/faculty-articles/1586.