Education Law Commons^™

Due Process In Public University Discipline Cases, Marie T. Reilly

Faculty Scholarship

No abstract provided.

Effective Litigation Strategies To Improve State Education And Social Service Systems, Albert H. Kauffman

Faculty Articles

Texas border area Latino plaintiffs brought state court litigation, the Lulac case, to improve higher education opportunities in the Texas- Mexico borderlands. Plaintiffs successfully parlayed their trial court judgment into a massive influx of resources and permanent improvement in higher education in the Texas border. The Article describes the history of the Lulac case and includes an original analysis of the improvement of higher education in the Texas border area. The Article then develops a model for the successful integration of litigation, legislation, public advocacy and community involvement, and applies this model to the Lulac case and the Texas school …

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 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 …

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 …

Toward A Civilized System Of Justice: Reconceptualizing The Response To Sexual Violence In Higher Education, Hannah Brenner, Kathleen Darcy

Faculty Scholarship

The reporting, investigation, and prevention of sexual violence in settings that are closed off from the greater community and subject to their own laws, rules, norms and biases present special challenges for survivors of sexual violence. This essay builds on our existing scholarship that explores the pervasive problem and exceedingly high incidence of sexual violence perpetrated against women in closed institutional systems like prison, the military, and immigration detention centers. Survivors in these contexts are routinely denied access to justice internally and from the external criminal justice system; they also face major limitations (imposed by both federal law and Supreme …

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

Scholarly Works

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.

Is There Really A Sex Bureaucracy?, Suzanne B. Goldberg

Faculty Scholarship

This essay identifies several features of the higher-education context that can enrich The Sex Bureaucracy‘s account of why colleges and universities have adopted new policies and trainings to address sexual assault on their campuses. These features include: 1) schools’ preexisting systems for addressing student conduct; 2) the shared interest of schools in reducing impediments to education, including nonconsensual sexual contact; and 3) the pedagogical challenges of developing trainings that are engaging and effective. Taking these three factors into account, we can see that while federal Title IX intervention has had a profound effect, it is also important not to …

What Once Was Lost Must Now Be Found: Rediscovering An Affirmative Action Jurisprudence Informed By The Reality Of Race In America, Lee C. Bollinger

Faculty Scholarship

This academic year has seen college and university students across America calling on their institutions to do more to create campus cultures supportive of African American students and other underrepresented minorities. There have been demands to increase faculty and student diversity, change curricular requirements, and adopt mandatory cultural sensitivity trainings. There have been efforts to rename buildings, remove images, and abandon symbols associating schools with major historic figures who were also proponents of slavery, segregation, or other forms of racism. As in all tumultuous periods for higher education, these events have provoked useful discussions about fundamental principles and brought to …

Use Of Preponderance Of Evidence In Campus Adjudication Of Sexual Misconduct, Elizabeth Sommer

All NMU Master's Theses

How higher education institutions (HEI) handled sexual misconduct cases matters. It matters for survivors, accused, administrators, parents, HEI leaders, regulatory bodies (such as the Office for Civil Rights), and the general public. The 2011 Dear Colleague Letter published by the Department of Education’s Office for Civil Rights mandated the use of preponderance of evidence in all sexual misconduct cases (Ali, 2011). The change to utilize a low burden of proof, preponderance of evidence, was and is controversial. Despite a large literature base of legal opinions on the use of preponderance of evidence in the campus adjudication process, there are few …

God Talk By Professors Within The Classrooms Of Public Institutions Of Higher Education: What Is Constitutionally Permissible?, Sarah Howard Jenkins, Byron R. Johnson, Otto Jennings Helwig

Akron Law Review

This essay establishes, first, the professional aspects of disclosure. Second, it defines the equipoise between the State's interest in efficiency and the teacher's interest in exercising his or her First Amendment right of expression of religious opinion on matters of public interest. Third, the essay identifies expressive activities of the teacher within the classroom that should be accorded First Amendment protection pursuant to James v. Board of Education. Fourth, the essay examines whether the professor's disclosure of personal and theological biases in a classroom constitutes state action and concludes that a professor fulfilling his or her assigned tasks within …

Protecting Diversity In The Ivory Tower With Liability Rules, Ting Wang

Pace Law Review

The two sides of the debate over race-based affirmative action in higher education tell two distinct stories – one of diversity’s benefits and the other of affirmative action’s burdens. In Grutter v. Bollinger, 539 U.S. 306 (2003), the Supreme Court found the benefits to be so compelling to society that they were deemed to outweigh the burdens. Voters in Michigan and other states found otherwise and the Court in Schuette v. Coalition to Defend Affirmative Action, 572 U.S. — (2014) upheld their right to ban race-conscious admissions. Paradoxically, since the use of race as a “plus factor” by selective universities …

Legal And Ethical Considerations For Social Media Hiring Practices In The Workplace, Andrew S. Hazelton, Ashley Terhorst

The Hilltop Review

Social media has certainly evolved and continues to do so with each new day. Social media in its infancy was not as widespread in the personal lives of people, let alone in the workplace. In the following years since its inception, social media has captured a significant amount of time of individuals in every aspect of their lives. However, with this advancement also comes possible conflict in how companies and departments within a university or college setting conduct background checks. Social media makes public profiles an easy click away and many potential job seekers may not see the problems that …

Following Fisher: Narrowly Tailoring Affirmative Action, Eang L. Ngov

Catholic University Law Review

Affirmative action has been at the forefront of educational policies and to this day continues to enliven debates. For decades, schools have litigated over whether affirmative action can be used to create a diverse student body. Now, the litigation has shifted to whether affirmative action policies are narrowly tailored. The Supreme Court’s most recent affirmative action case, Fisher v. University of Texas at Austin, requires that schools prove that there are no workable race neutral alternatives in order to demonstrate that their affirmative action programs are narrowly tailored. This article examines the available race neutral alternatives: percentage plans; socioeconomic …

“Jim Crowing” Plyler V. Doe: The Resegregation Of Undocumented Students In American Higher Education Through Discriminatory State Tuition And Fee Legislation, David H.K. Nguyen, Zelideh R. Martinez Hoy

Cleveland State Law Review

This law review article examines the re-segregation of undocumented students in education, more specifically, re-segregation through state laws and policies impacting their attendance at American colleges and universities. Under no fault of their own, undocumented students are marginalized even further after graduating from high school, since they are not afforded the same benefits as their peers to attend college. This article explores the current landscape of these laws and policies after providing background on Plyler v. Doe and state and federal attempts to challenge education for undocumented students.

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, …

Bankruptcy And Education, Keith Sharfman

Faculty Publications

(Excerpt)

Bankruptcy law interacts with education law in a number of respects. A bankrupt educational institution loses access to student financial aid, and its accreditation status is excluded from the bankruptcy estate. Actions by accreditation agencies against bankrupt educational institutions are not subject to the automatic stay. And absent a showing of undue hardship, student loans are not dischargeable in bankruptcy.

The exceptional treatment of educational institutions and their students in bankruptcy reflects a fundamental tension between the goals of bankruptcy law on the one hand and education policy on the other. While bankruptcy law generally seeks to maximize value …

Scholarly And Scientific Boycotts Of Israel: Abusing The Academic Enterprise, Kenneth Lasson

Touro Law Review

No abstract provided.

Nevada Public Policy And Higher Education: The Roles Of The Legislature And The Board Of Regents Under The Nevada Constitution, Thomas B. Mcaffee, Justin James Mcaffee

Nevada Law Journal

No abstract provided.

Allocating Higher-Education Stimulus Funds In New Jersey: A Multiple-Streams Case Study, Michael W. Klein

Kentucky Journal of Higher Education Policy and Practice

This case study examines the public policy process in New Jersey and how it influenced the distribution of American Recovery and Reinvestment Act (ARRA) funds for higher education. New Jersey originally proposed to appropriate ARRA funds only to state-administered financial-aid programs in the FY2010 budget. Applying Kingdon’s (2003) public policy framework, this study explains how higher education advocates provided feedback, presented a successful alternative, and secured $39.6 million for public college and universities.

The End Of Indeterminacy In Affirmative Action, Carla Pratt

Faculty Articles

After the Supreme Court's decision in Fisher v. UT Austin, the stage has been set for judges to demand more specificity in the articulation of the protected diversity interest. Gone are the days when institutions of higher education could rely on the abstract concept of diversity to support efforts to enroll a diverse student body. Now higher education institutions will need to give serious thought to how they define the sought after diversity interest and how racial diversity improves educational outcomes and enhances the education that is delivered.

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. ...

Education Law, D. Patrick Lacy Jr., Kathleen S. Mehfoud

University of Richmond Law Review

This article presents a survey of the significant developments in the area of K-12 education law in Virginia from 2012 to the present. After two of the most active legislative and judicial sessions for education policy in recent years, this review can present only a select number of the many education-related statutes and judicial decisions introduced during this time. This survey places a special emphasis on the Virginia General Assembly's recent legislative updates to the Virginia education code. The volume and significance of these updates reflects Governor Robert McDonnell's commitment in 2013 to pursuing a bold education agenda. As Congress …

In Defense Of Deference: The Case For Respecting Educational Autonomy And Expert Judgments In Fisher V. Texas, Eboni S. Nelson

University of Richmond Law Review

No abstract provided.

Why Non-Discrimination Policies In Higher Education Require A Second Look: The Battle For First Amendment Freedom In The University Setting, Rebecca D. Ryan

Catholic University Law Review

No abstract provided.

Making State Merit Scholarship Programs More Equitable And Less Vulnerable, Aaron N. Taylor

All Faculty Scholarship

Since the 1993 arrival of Georgia’s Helping Outstanding Pupils Educationally (HOPE) Program, meritscholarships have become popular tools for states seeking to maximize human capital within their borders. However, research has concluded both that the bulk of merit scholarships goes to students with the least financial need and the popularity of these programs has led to a de-emphasis on need-based scholarshipfunding in some states. These trends are even more worrisome when these programs are funded by lottery revenue, as is the case with HOPE. Lotteries are inherently regressive because the people who play (and pay related taxes) tend to be poor …

Reimagining Merit As Achievement, Aaron N. Taylor

All Faculty Scholarship

Higher education plays a central role in the apportionment of opportunities within the American meritocracy. Unfortunately, narrow conceptions of merit limit the extent to which higher education broadens racial and socioeconomic opportunity. This article proposes an admissions framework that transcends these limited notions of merit. This “Achievement Framework” would reward applicants from disadvantaged backgrounds who have achieved beyond what could have reasonably been expected. Neither race nor ethnicity is considered as part of the framework; however, its nuanced and contextual structure would ensure that racial and ethnic diversity is encouraged in ways that traditional class-conscious preferences do not. The overarching …

Law Schools, Leadership, And Change, Susan P. Sturm

Faculty Scholarship

Law schools train many of the nation’s leaders. As Professor Fred Rodell observed, “it is the lawyers who run our civilization for us – our governments, our business, our private lives.” The legal profession was already closely linked to leadership at the founding of the country, when lawyers constituted almost half of the signers of the Declaration of Independence and more than half of the members of the Constitutional Convention. Lawyers now bear major responsibility for leading the institutions that structure the governance, education, and day-to-day lives of the polity. Ten percent of the CEOs of the top fifty companies …

"If The Plaintiffs Are Right, Grutter Is Wrong": Why Fisher V. University Of Texas Presents An Opportunity For The Supreme Court To Overturn A Flawed Decision, Brooks H. Spears

University of Richmond Law Review

No abstract provided.

Applying Indices Post-Grutter To Monitor Progress Toward Attaining A Diverse Student Body, Roger W. Reinsch, Sonia Goltz, Hong Chen, Joel C. Tuoriniemi

Northwestern Journal of Law & Social Policy

The Supreme Court decision in Grutter v. Bollinger provided more definitive guidance for institutions of higher education desiring to use racial preferences in an effort to achieve a diverse student body. This Article first examines Grutter and other relevant cases to set forth the parameters established by the Supreme Court concerning how university preferences, including but not limited to race, may be used in an admissions policy. This Article then provides a framework for creating and using diversity indices that can help institutions implement the guidelines found in these court decisions and monitor whether or not the goal of diversity …