Education Law Commons^™

School Board Authority And First Amendment Rights: The View After Board Of Education, Island Trees V. Pico, Joseph D. Mccann

Akron Law Review

This analysis will begin with an examination of the historical bases for the state's educational authority and the traditional limitations placed on this authority by the courts. Next, the genesis of students' rights will be reviewed along with the restrictions the growth of these rights has imposed upon school board authority. The paper will then turn to the Pico case itself - surveying the various judicial approaches taken in balancing the interests of school board authority and students' rights and scrutinizing these approaches for the proper theoretical framework for student first amendment rights analysis. Finally, the paper will examine the …

The Burlington Decision: A Vehicle To Enforce Free Appropriate Public Education For The Handicapped, Martha A. Motsco

Akron Law Review

This note will present an overview of early case law relevant to the Education of the Handicapped Act ("EHA"), discuss the facts and rationale of the Burlington v. Department of Education decision, and analyze the implications of Burlington as they relate to implementing the EHA in the future.

Cleveland And Milwaukee's Free Market Solution For The "Pedantic Heap(S) Of Sophistry And Nonsense" That Plague Public Education: Mistakes On Two Lakes?, Douglas S. Edwards

Akron Law Review

This Comment summarizes the existing comprehensive analysis of federal and state constitutional challenges to voucher programs. It examines how the groundbreaking Cleveland and Milwaukee plans addressed these critical issues, and makes suggestions for legislators wishing to implement similar plans in their states. The suggestions are intended to: 1) facilitate the passage of such measures; 2) mitigate the most divisive arguments of voucher opponents; 3) allay the fears of the legislators and their constituents; and 4) fortify such plans against probable legal challenges.

Citizenship Education And The Free Exercise Of Religion, Tyll Van Geel

Akron Law Review

Part One of this article provides a broad-brush overview of constitutional doctrine as it bears on citizenship education in the public schools. The remaining parts of the article focus on a Free Exercise challenge to the introduction of a Callaneseque program of citizenship education in a public school. Part Two thus explicates Callan’s theory. Part Three outlines my approach to the Free Exercise Clause. Part Four applies that approach to a challenge brought against a Callanesque program of citizenship education. Part Five takes up other possible rights-based limits on the education power and offers a suggestion regarding how citizenship education …

Big Philanthropy’S Unrestrained Influence On Public Education: A Call For Change, Noelle Quam

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Educational Fiscal Policy And Its Effects On How Our Children Learn: Comparing Minnesota And Illinois, Sally Anne Stenzel

Journal of Undergraduate Research at Minnesota State University, Mankato

The study compares Illinois’ and Minnesota’s education fiscal policies. Illinois funds it’s education system mainly from the local level, whereas Minnesota funds it’s mainly from the state level. Thus, in Illinois, if there are discrepancies between household incomes in wealthier and poorer areas, the schools in wealthier areas would receive more money than those in poorer areas. Test scores are then compared. Illinois typically has lower scores than Minnesota. The conclusion is that Illinois’ policies are hindering their students’ learning, compared to Minnesota students, with some mixed results.

Place, Not Race: Affirmative Action And The Geography Of Educational Opportunity, Sheryll Cashin

University of Michigan Journal of Law Reform

Ultimately, I argue that one important response to the demise of race-based affirmative action should be to incorporate the experience of segregation into diversity strategies. A college applicant who has thrived despite exposure to poverty in his school or neighborhood deserves special consideration. Those blessed to come of age in poverty-free havens do not. I conclude that use of place, rather than race, in diversity programming will better approximate the structural disadvantages many children of color actually endure, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders. While I propose substituting …

Special Kids, Special Parents, Special Education, Karen Syma Czapanskiy

University of Michigan Journal of Law Reform

Many parents are raising children whose mental, physical, cognitive, emotional, or developmental issues diminish their capacity to be educated in the same ways as other children. Over six million of these children receive special education services under mandates of the Individuals with Disabilities Education Act, called the IDEA. Once largely excluded from public education, these children are now entitled to a “free appropriate public education,” or FAPE. This Article argues that the promise of the IDEA cannot be realized unless more attention is paid to the child’s parents. Under the IDEA, as in life, the intermediary between the child and …

Teacher Working Conditions With And Without Collective Bargaining, Clifford B. Donn, Rachel E. Donn, Lloyd Goldberg, Brenda J. Kirby

Nevada Law Journal

No abstract provided.

Education Rights And The New Due Process, Areto A. Imoukhuede

Faculty Scholarship

This Article argues for a human dignity-based, due process clause analysis to recognize the fundamental duty of government to provide high quality, public education. Access to public education is a fundamental duty, or positive fundamental right because education is a basic human need and a constituent part of all democratic rights.

The 'Compelling Government Interest' In School Diversity: Rebuilding The Case For An Affirmative Government Role, Philip Tegeler

University of Michigan Journal of Law Reform

How far does Justice Kennedy’s “moral and ethical obligation” to avoid racial isolation extend? Does the obligation flow primarily from Supreme Court case law, does it derive from an evolving consensus in the social sciences, or does it also have a statutory basis in Title VI and other federal law? In addition to its value as a justification for non-individualized, race-conscious remedial efforts by state and local governments, does the compelling interest identified in Parents Involved also suggest an affirmative duty on the part of the federal government? And if so, how far does this affirmative duty extend, and how …

Inhibiting Intrastate Inequalities: A Congressional Approach To Ensuring Equal Opportunity To Finance Public Education, Joshua Arocho

Michigan Law Review

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying each other’s capabilities commit to and obey rules designed to limit their choice of targets, weapons, and tactics? Traditionally, answers to this question have been offered on the one hand by moralists who regard the law as being inspired by morality and on the other by realists who explain this branch of law on the basis of reciprocity. Neither side’s answers withstand close scrutiny. In this Article, we develop an alternative explanation that is based on the principal–agent model of domestic governance. …

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

Scholarly Works

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 …

The Sanctioning Authority Of Hearing Officers In Special Education Cases, Salma A. Khaleq

Journal of the National Association of Administrative Law Judiciary

Under the Individuals with Disabilities Education Act (IDEA or the Act), children with disabilities are entitled to a free, appropriate public education (FAPE). The Act provides a procedural safeguard for children and their parents seeking to challenge a state or local educational agency's educational plan for the child in the form of a due process hearing presided over by a hearing officer or an administrative law judge (ALJ). This article describes the current case law concerning the authority of ALJs to sanction parties and attorneys for misconduct during these special education proceedings. Due to the limited number of cases available …

Courthouses Vs. Statehouses?, William S. Koski

Michigan Law Review

Just over twenty years ago, the Kentucky Supreme Court declared the commonwealth's primary and secondary public-education finance system-indeed, the entire system of primary and secondary public education in Kentucky-unconstitutional under the "common schools" clause of the education article in Kentucky's constitution. That case has been widely cited as having ushered in the "adequacy" movement in school-finance litigation and reform, in which those challenging state school-funding schemes argue that the state has failed to ensure that students are provided an adequate education guaranteed by their state constitutions. Since the Rose decision in Kentucky, some thirty-three school-finance lawsuits have reached final decisions …

The Fifth Freedom: The Constitutional Duty To Provide Public Education, Areto Imoukhuede

Faculty Scholarship

“The fifth freedom is freedom from ignorance. It means that every[one], everywhere, should be free to develop his [or her] talents to their full potential – unhampered by arbitrary barriers of race or birth or income.” Lyndon B. Johnson This article argues that education is a fundamental human right that the U.S. Supreme Court has failed to recognize because of the Court’s bias towards negative, rather than positive rights. Viewed from the limited perspective of rights as liberties, the concern with declaring a fundamental right to education is that education legislation would be strictly scrutinized, thus causing the undesired result …

Fate Of The Detroit Public Schools: Governance, Finance And Competition, Peter J. Hammer

Law Faculty Research Publications

No abstract provided.

Profiting From Not For Profit: Toward Adequate Humanities Instruction In American K-12 Schools, Eli Savit

Michigan Law Review

Martha Nussbaum' describes Not For Profit: Why Democracy Needs the Humanities-her paean to a humanities-rich education-as a "manifesto, not an empirical study" (p. 121). Drawing on contemporary psychological research and classic pedagogical theories, Nussbaum convincingly argues that scholastic instruction in the humanities is a critical tool in shaping democratic citizens. Nussbaum shows how the study of subjects like literature, history, philosophy, and art helps students build essential democratic capacities like empathy and critical thought. Through myriad examples and anecdotes, Not For Profit sketches an appealing vision of what an ideal education should be in a democracy.

Equal Access To Public Education: An Examination Of The State Constitutional And Statutory Rights Of Nonpublic Students To Participate In Public School Programs On A Part-Time Basis In North Carolina And Across The Nation, John Plecnik

Law Faculty Articles and Essays

This article argues that private and homeschool students in North Carolina have a state constitutional and statutory right to participate in public school programs on a part-time basis. This right is based on the North Carolina Constitution's explicit acknowledgment of nonpublic education and guarantees of equal protection and equal access to public schools. This right is also based on state statutes that mirror the wording and spirit of the state constitution's guarantees. Since the North Carolina Supreme Court has held that equal access to public schools is a fundamental right under the state constitution, this right can only be restricted …

School Choice And States' Duty To Support Public Schools , Aaron J. Saiger

Faculty Scholarship

The education clauses of state constitutions require states to support schools that not only educate children adequately and equitably, but that are "public" or "common." This Article argues that state-supported school choice can be consistent with these latter requirements. Individual choices, about where to live and whether to educate children privately, have long shaped traditional "public" schooling arrangements. The more direct role choice plays in school voucher and charter programs is also consistent with the requirement that schools be "public." Such programs must ensure, however, that parents' choices among schools are "genuine and independent." This criterion, developed by the U.S. …

Charter Schools And Collective Bargaining: Compatible Marriage Or Illegitimate Relationship, Martin H. Malin, Charles Taylor Kerchner

ExpressO

The rapid increase in charter schools has been fueled by the view that traditional public schools have failed because of their monopoly on public education. Charter schools, freed from the bureaucratic regulation that dominates traditional public schools, are viewed as agents of change that will shock traditional public schools out of their complacency. Among the features of the failed status quo are teacher tenure, uniform salary grids and strict work rules, matters that teacher unions hold dear. Yet unions have begun organizing teacher in charter schools. This development prompts the question whether unionization and charter schools are compatible.

In contrast …

A Response To Goodwin Liu, Robin West

Georgetown Law Faculty Publications and Other Works

Professor Liu's article convincingly shows that the Fourteenth Amendment can be read, and has been read in the past, to confer a positive right on all citizens to a high-quality public education and to place a correlative duty on the legislative branches of both state and federal government to provide for that education. Specifically, the United States Congress has an obligation under the Fourteenth Amendment's Citizenship Clause, Liu argues, to ensure that the public education provided by states meets minimal standards so that citizens possess the competencies requisite to meaningful participation in civic life. Liu's argument is not simply that …

Strengthening America’S Foundation: Why Securing The Right To An Education At Home Is Fundamental To The United States’ Efforts To Spread Democracy Abroad, Eric Lerum, Sheila Moreira, Rena Scheinkman

Human Rights Brief

No abstract provided.

Single-Sex Classes In Public Secondary Schools: Maximizing The Value Of A Public Education For The Nation's Students, Ashley E. Johnson

Vanderbilt Law Review

Throughout the United States, school districts are struggling to educate their students in the face of drug problems, violence, and deteriorated home situations that permeate the lives of large numbers of today's teenagers. Many parents likewise face a daunting battle in helping their children attain an education that will enable those children to move beyond what their parents achieved financially. Additionally, recent economic downturns mean states have even less money to spend on education, forcing the quality of education in some already inadequate schools to fall further. Meanwhile, studies show that American children have fallen behind many of their foreign …

Constitutional Common School, Molly O'Brien, Amanda Woodrum

Cleveland State Law Review

In this paper we turn to historical evidence as a beginning point for understanding the constitutional vision and values of the "thorough and efficient system of common schools" mandated by Article VI, Section 2 of the Ohio Constitution. In Part II, we consider the early development of public schooling in America and the complex relationship between public education and religion. The inclusion of the educational provisions in the Constitution of 1851 represented a victory for the advocates of a non-sectarian, state operated system of schools that would encourage civic participation and avoid religious indoctrination In Part II, we address efforts …

Brown At 50: Reconstructing Brown'S Promise, Taunya Lovell Banks

Faculty Scholarship

Today the measure of equal education for black children often is the racial composition of the school population rather than the quality of education received. Increasingly educational achievement for children of all races is tied to socioeconomic status. Since whites as a group are more affluent than non-whites, race and class tend to get conflated leaving uninformed people to conclude that racial integration alone is the measure of equal educational opportunities for black and other non-white children. Legal scholars writing about equal educational opportunities tend to focus either on ways to achieve racial integration or funding equality. Few scholars explore …

The Most Rational Branch: Guinn V. Legislature And The Judiciary's Role As Helpful Arbiter Of Conflict, Jeffrey W. Stempel

Scholarly Works

When the Nevada Supreme Court decided Guinn v. Legislature, one would have thought from reading the popular press accounts that the court had forcibly displaced the State legislature by means of a violent coup d'etat. Newspaper accounts of the decision referred to it as a usurpation of power in violation of clear constitutional language, belittling the court in language sometimes more appropriate to the baseball bleachers than to serious editorial commentary. Following suit, politicized elements of the citizenry began a recall effort (seemingly unsuccessful as of this writing) directed at the court as well as joining the chorus of criticisms. …

Brown V. Board Of Education: Reexamination Of The Desegregation Of Public Education From The Perspective Of The Post-Desegregation Era, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

Teaching About Religion In Public Schools, Kent Greenawalt

Faculty Scholarship

Two of the twentieth century's most controversial Supreme Court decisions held that public schools could not sponsor devotional prayer and Bible reading as part of their educational program. Yet, whether to begin school with a few minutes of devotional practice matters far less than what schools teach about religion, one of the most nettlesome issues of church-state relations in a liberal democracy. This question has received comparatively little attention from constitutional lawyers, because the Supreme Court has declared that teaching about religion is acceptable and has not addressed challenges to programs educators have labeled in this way. Many citizens, of …

Alternative Education: The Criminalization Of Student Behavior, Augustina H. Reyes

Fordham Urban Law Journal

Public education was intended to give students a broad perspective to prepare them for living in a complex, diverse society. This article will examine a relatively recent development in public education: alternative education programs (AEPs). Using Texas public schools as a case study, this article argues that AEPs defeat public education’s goal of exposing students to a diverse student body. This is because AEPs segregate at-risk students-- usually Latinos, African Americans, Native Americans, and poor Whites--from the rest of the student population. This article deals with disciplinary AEPS, also known as DAEPs. Part I of the article will explore the …