Education Law Commons^™

The Fathers Have Eaten Sour Grapes: History Is The Wrong Test For Establishment Clause Questions In Public Schools, Abigail Riddle

Arkansas Law Review

The old quip goes, “As long as there are math tests, students will pray in the schools.” There is, however, a distinction between private and public prayers; the former allows religious students to find peace and comfort in a moment of anxiety, and the latter openly divides the religious majority from the religious and nonreligious minority, ostracizing the minority and exacerbating their nerves. This Note examines the constitutionality of religious exercises initiated by public school faculty and staff at public education’s founding, arguing that the special considerations present when considering prayer in these contexts are too important to be limited …

The First Amendment In Education: May Faculty At Public Schools Be Disciplined For Political Hate Speech?, Ken M. Levy

William & Mary Bill of Rights Journal

At a House hearing on December 5, 2023, the presidents of three universities— Harvard, MIT, and the University of Pennsylvania—refused to state that certain kinds of hate speech, specifically calls for genocide of Jews, are prohibited on their campuses. The backlash against two of them, Harvard’s Claudine Gay and Penn’s Liz Magill, was swift and devastating; both were successfully pressured to resign. Still, while Professors Gay’s and Magill’s responses were widely criticized as tone-deaf, they were legally correct. At many private, and all public, colleges and universities, even the worst hate speech is generally protected unless it is accompanied by …

Tax Benefits And Fairness In K–12 Education, Linda Sugin

Faculty Scholarship

This Article examines the tax law’s subsidies for inequality and segregation in primary and secondary education, analyzing the federal charitable deduction and education savings plans, and state tax credits for education. It argues that the tax system diverts funds from traditional public education into private education, fostering economic, racial, religious, and political separation. The tax law also operates to increase resource inequality within public education by subsidizing schools that affluent children attend. In a novel analysis, the Article contends that the jurisprudence around the charitable deduction for education—though longstanding—is legally incoherent, and argues that no deduction should ever be allowed …

Masks, Mayhem & The Future Of Disability Rights In Schools, Claire Raj, Crystal Grant

Faculty Scholarship

Disability rights took center stage in the recent battles over universal mask mandates in public schools. Pro-mask advocates argued that universal mask policies were necessary to ensure equal access to education under two different federal disability statutes, Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act. Opponents argued universal masking was an infringement on personal liberty and uncalled for by either law. Courts responded with a great deal of confusion that resulted in disparate legal outcomes for cases with essentially the same facts. This confusion, however, is not new—it is rooted in decades of doctrinally …

The Effects Of “No Pro Homo” Policies On Lgbtq+ Perceptions In The American South, Isabella L. Brocato

Honors Theses

Five states in the American South currently have “no pro homo” policies in place, while an increasing number of bills targeting discussions about sexuality and gender identity in public schools are being introduced to House floors around the country. Although there is extensive research on the ways in which these policies put the physical and mental well-being of LGBTQ+ students at risk, there is little to no research about how they shape public perceptions of the LGBTQ+ community collectively. With inspiration from Kenneth and Mamie Clark’s social science study cited in Brown v. Board of Education (1954), this study works …

House Bill 3: An Iou Texas Public Schools And Communities Of Color Cannot Afford, Candace L. Castillo

The Scholar: St. Mary's Law Review on Race and Social Justice

A history of school finance litigation and legislation shows there are inherent and structural problems in Texas’s education finance system. Like many government and social structures, the Texas school finance system is built to benefit school districts that have greater access to wealth to begin with and creates inequalities between rich and poor populations as well as between people of color and Caucasians. House Bill 3 went into effect in 2019 and promises improvements to “recapture” calculations, increases in certain allotments, as well as salary increases for some Texas teachers. Some changes to education finance were sorely needed such as …

The Lost Promise Of Disability Rights, Claire Raj

Michigan Law Review

Children with disabilities are among the most vulnerable students in public schools. They are the most likely to be bullied, harassed, restrained, or segregated. For these and other reasons, they also have the poorest academic outcomes. Overcoming these challenges requires full use of the laws enacted to protect these students’ affirmative right to equal access and an environment free from discrimination. Yet, courts routinely deny their access to two such laws—the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973 (section 504).

Courts too often overlook the affirmative obligations contained in these two disability rights …

Catalytic Courts And Enforcement Of Constitutional Education Funding Provisions, Hugh D. Spitzer, Andy Omara

Articles

It is well-recognized that it is easier for judges to enforce constitutional “negative rights” provisions than positive social and economic rights. This article focuses on the challenges of enforcing one specific positive right: the constitutional right of children to attend adequately funded schools. Our article tests on-the-ground judicial implementation of education funding provisions against the general theoretical framework of judicial interaction with the political branches developed by Katharine Young. We analyze how, in multi-year, multi-decision litigation, constitutional court judges in the three jurisdictions we studied actively experimented with the challenging task of forcing, or enticing, reluctant legislative and executive branches …

Mccleary V. State And The Washington State Supreme Court's Retention Of Jurisdiction—A Success Story For Washington Public Schools?, Jessica R. Burns

Seattle University Law Review Online

No abstract provided.

Valuing All Identities Beyond The Schoolhouse Gate: The Case For Inclusivity As A Civic Virtue In K-12, Sacha M. Coupet

Michigan Journal of Gender & Law

Increasing social and political polarization in our society continues to exact a heavy toll marked by, among other social ills, a rise in uncivility, an increase in reported hate crimes, and a more pronounced overall climate of intolerance—for viewpoints, causes, and identities alike. Intolerance, either a cause or a consequence of our fraying networks of social engagement, is rampant, hindering our ability to live up to our de facto national motto, “E Pluribus Unum,” or “Out of Many, One” and prompting calls for how best to build a cohesive civil society. Within the public school—an institution conceived primarily …

Private Schools' Role And Rights In Setting Vaccination Policy: A Constitutional And Statutory Puzzle, Hillel Y. Levin

Scholarly Works

Measles and other vaccine-preventable childhood diseases are making a comeback, as a growing number of parents are electing not to vaccinate their children. May private schools refuse admission to these students? This deceptively simple question raises complex issues of First Amendment law and statutory interpretation, and it also has implications for other current hot-button issues in constitutional law, including whether private schools may discriminate against LGBTQ students. This Article is the first to address the issue of private schools’ rights to exclude unvaccinated children. It finds that the answer is “it depends.” It also offers a model law that states …

Making A Reasonable Calculation: A Strategic Amendment To The Idea, Hetali M. Lodaya

University of Michigan Journal of Law Reform

The Individuals with Disabilities Education Act (IDEA) lays out a powerful set of protections and procedural safeguards for students with disabilities in public schools. Nevertheless, there is a persistent debate as to how far schools must go to fulfill their mandate under the IDEA. The Supreme Court recently addressed this question with its decision in Endrew F. v. Douglas Cty. School District Re-1, holding that an educational program for a student with a disability must be “reasonably calculated” to enable a child’s progress in light of their circumstances. Currently, the Act’s statutory language mandates Individual Education Program (IEP) teams …

The Right To Be And Become: Black Home-Educators As Child Privacy Protectors, Najarian R. Peters

Michigan Journal of Race and Law

The right to privacy is one of the most fundamental rights in American jurisprudence. In 1890, Samuel D. Warren and Louis D. Brandeis conceptualized the right to privacy as the right to be let alone and inspired privacy jurisprudence that tracked their initial description. Warren and Brandeis conceptualized further that this right was not exclusively meant to protect one’s body or physical property. Privacy rights were protective of “the products and the processes of the mind” and the “inviolate personality.” Privacy was further understood to protect the ability to “live one’s life as one chooses, free from assault, intrusion or …

Mental Health Care In America: Addressing The Mental Health Crisis In Public Schools, Connor Breza

Health Law Outlook

No abstract provided.

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.

Post-Accountability Accountability, Nicole Stelle Garnett

University of Michigan Journal of Law Reform

Over the past few decades, parental choice has exploded in the United States. Yet, despite early proponents’ hopes that parental choice would eliminate the need to regulate school quality—since parents’ choices would serve an accountability function—demands to use the law to hold chosen schools accountable for their academic performance are central features of education-reform debates today. This is an opportune time to consider the issue of academic accountability and parental choice. Parental choice has gained a firm foothold in the American educational landscape. As it continues to expand, debates about accountability for chosen schools will only intensify. The questions of …

Power And Powerlessness In The Shale Valley Schools: Fracking For Funding, Jacqueline Yahn

West Virginia Law Review

No abstract provided.

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Articles

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …

Educational Equality For Children With Disabilities: The 2016 Term Cases, Samuel R. Bagenstos

Book Chapters

One of the most longstanding debates in educational policy pits the goal of equality against the goal of adequacy: Should we aim to guarantee that all children receive an equal education? Or simply that they all receive an adequate education? The debate is vexing in part because there are many ways to specify “equality” and “adequacy.” Are we talking about equality of inputs (which inputs?), equality of opportunity (to achieve what?), or equality of results (which results?)? Douglas Rae and his colleagues famously argued that there are no fewer than 108 structurally distinct conceptions of equality. And how do we …

The Failure Of Education Federalism, Kristi L. Bowman

University of Michigan Journal of Law Reform

Since the Great Recession of 2007–09, states have devoted even less money to public education and state courts have become even more hostile to structural reform litigation that has sought to challenge education funding and quality. Yet the current model of education federalism (dual federalism) leaves these matters largely to the states. As a result, state-level legislative inaction, executive acquiescence, and judicial abdication can combine to create a situation in which the quality of traditional public schools declines sharply. This is the case in Michigan, which is an unusually important state not only because the dynamics that are emerging in …

Restraints, Seclusion, And The Disabled Student: The Blurred Lines Between Safety And Physical Punishment, Lanette Suarez

University of Miami Law Review

No abstract provided.

Cyberbullying, K-12 Public Schools, And The 1st Amendment, Jennifer A. Mezzina

Seton Hall University Dissertations and Theses (ETDs)

The first amendment protected students’ first amendment rights in K-12 public schools; however, state antibullying legislation required school officials to discipline students for bullying and, in most states, cyberbullying as well. An increasing number of students had access to mobile devices at home and during the school day. School officials had the responsibility to protect students from instances of bullying and cyberbullying; however, school officials did not fully understand the extent of their authority to discipline students for acts of bullying that occurred online, off school grounds. Despite the existence of state antibullying laws in all fifty states, contradictory appellate …

Triggering Tinker: Student Speech In The Age Of Cyberharassment, Ari Ezra Waldman

University of Miami Law Review

This essay challenges the common assumption that public schools have limited authority to regulate cyberbullying that originates and takes place off campus. That argument presumes a level of myopia, clarity, and literalism in the law that simply does not exist. First, even assuming it existed, a geographic requirement is an outdated creature of a pre-Internet age. Cyberbullying poses unique challenges to young people, educators, and schools not contemplated when the Court decided its student speech cases. Second, I argue that a campus presence requirement for regulating any kind of off-campus cyberspeech never really existed, so any suggestion to the contrary …

Counting Zeros: The Every Student Succeeds Act And The Testing Opt-Out Movement, Paul A. Hoversten

Michigan Law Review Online

The story begins with threatening letters. In October 2014, the U.S. Department of Education reminded Colorado’s chief state school officer that the department “ha[d], in fact, withheld Title I, Part A administrative funds . . . from a number of States for failure to comply with the assessment requirements” under the Elementary and Secondary Education Act. Given the occasion, the department implied, it wouldn’t hesitate to be ruthless.

Colorado could be forgiven for assuming it was authorized to craft its own policies in this arena; according to the Wall Street Journal, the Every Student Succeeds Act (ESSA) represented “the …

Civil Rights And The Charter School Choice: How Stricter Standards For Charter Schools Can Aid Educational Equity, Rachel E. Rubinstein

Law Student Publications

This paper analyzes the way variations in charter-enabling legislation may exacerbate segregation and how federal and state reforms could better utilize the charter system to further integration. Part I discusses the history of school choice and the social science underlying its potential as a vehicle for integration as well as further segregation. Part II reviews research on charter school demographics and the effectiveness of relevant civil rights statutes. Part III analyzes themes in local charter legislation that can influence charter school segregation by limiting accessibility for low income families and students with disabilities. Finally, Part IV offers recommendations for policy …

Squeezing Public Schools’ Lemons: Theorizing An Adequacy Challenge To Teacher Tenure, Peter M. Szeremeta

Washington and Lee Law Review

No abstract provided.

Sexualization, Sex Discrimination, And Public School Dress Codes, Meredith J. Harbach

Law Faculty Publications

This essay joins the conversation about sexualization, sex discrimination, and public school dress codes to situate current debates within in the broader cultural and legal landscapes in which they exist. My aim is not to answer definitively the questions I pose above. Rather, I ground the controversy in these broader contexts in order to better understand the stakes and to glean insights into how schools, students, and communities might better navigate dress code debates.

Expanding The Schoolhouse Gate: Public Schools (K-12) And The Regulation Of Cyberbullying, Philip Lee

Faculty Publications

(Excerpt)

In a tragic case that received international attention, 15-year-old Phoebe Prince killed herself after being bullied—both physically and online—by some of her classmates. Phoebe had moved to Massachusetts from a small town in Ireland, enrolling as a freshman at South Hadley High School. After a brief relationship with a popular boy in the senior class, the taunting by her classmates began. Some students called her an “Irish slut” and a “whore,” knocked things out of her hands, and sent her threatening texts. Some of the students used Facebook and Twitter to speak badly about her. Phoebe suffered this treatment …

Mainstreaming Equality In Federal Budgeting: Addressing Educational Inequities With Regard To The States, Elizabeth K. Hinson

Michigan Journal of Race and Law

Great Society reformers targeted poverty as the defining characteristic for a novel federal education policy in the United States in 1965. Title I of the Elementary and Secondary Education Act (ESEA), reincarnated within the No Child Left Behind Act of 2001, distributes financial aid to disadvantaged students within public schools solely based upon students’ socioeconomic status. This Article does not dispute that financial resources improve student outcomes, but this Article argues that Title I’s funding formula is ineffective, and a new funding scheme – specifically, a mainstreaming equality funding scheme – must replace it. The implementation of this funding scheme …

Harassing Speech In The Public Schools: The Validity Of Schools' Regulation Of Fighting Words And The Consequences If They Do Not, Adam A. Milani

Akron Law Review

What can - and should - schools do about the harassment which their students are suffering? While the issues of hateful and harassing speech and political correctness on college campuses have received a great deal of attention in both the mass media and legal journals, the very real problem of student-to-student harassment in grammar and high schools has only recently been given attention in either forum. More specifically, there has been little attention paid to the questions of whether (1) the First Amendment permits grammar and high schools to control harassing speech by students, (2) schools violate civil rights statutes …