Education Law Commons^™

Persistent Inequalities, The Pandemic, And The Opportunity To Compete, Rachel F. Moran

Faculty Scholarship

Even before the recent coronavirus pandemic, race, ethnicity, and socioeconomic status played a powerful role in allocating opportunity—in the public schools and elsewhere. The pandemic laid bare the dimensions of this inequality with a new and alarming clarity. In this essay, I first focus on the landscape of educational inequity that existed before the coronavirus forced public schools to shut down. In particular, I explore patterns of racial and ethnic segregation in America’s schools and evaluate how those patterns relate to additional challenges based on socioeconomic isolation. In addition, I consider the role of language and immigration status in shaping …

Special Solicitude: Religious Freedom At America’S Public Universities, William E. Thro

Office of Legal Counsel Academic Publications

Rejecting the Obama Administration’s argument that the First Amendment requires identical treatment for religious organizations and secular organizations, the Supreme Court held such a “result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.” (Hosanna-Tabor, 565 U.S. at 189). This “special solicitude” guarantees religious freedom from the government in all aspects of society, but particularly on public university campuses. At a minimum, religious expression and religious organizations must have equal rights with secular expression and secular organizations. In some instances, religious expression and religious expression …

The Legal Boundaries For Impartiality Of Idea Hearing Officers: An Update, Perry A. Zirkel

Pepperdine Dispute Resolution Law Journal

Special education has become a significant area of litigation in the K-12 school context. The impartial hearing officer (“IHO”) is the fulcrum of the adjudicative process under the Individuals with Disabilities Act (“IDEA”). However, the IDEA only provides for two standards for impartiality while the framework of remaining standards are left—via the IDEA’s structure of “cooperative federalism”—to state laws. Ultimately, the courts serve as the chief cartographer for the legal boundaries of IDEA IHO impartiality in their interpretation, gap-filling, and application of the federal and state framework. The previous research relating at least in part to IDEA IHO impartiality is …

A Case Study Of Private School Choice And Education Litigation In South Carolina: Safe Grants And Adams V. Mcmaster (S.C. 2020), Lyndsey Katherine Ebener

Senior Theses

The ideology behind private school choice endures in South Carolina. Arguments for parental choice have resurfaced periodically throughout the state’s history, particularly in moments of “crisis.” The current “crisis” moment is the COVID-19 pandemic, which created a perfect storm for the private school choice movement to gain momentum. When Governor McMaster received South Carolina’s emergency education relief funds, he capitalized on this movement with his proposed SAFE Grants program. His intention was for the SAFE Grants program to provide support through one-time tuition grants to low-income families who have children in private schools. Governor McMaster’s announcement incited an overwhelming media …

Unrules, Gabriel Scheffler, Cary Coglianese, Daniel E. Walters

Articles

At the center of contemporary debates over public law lies administrative agencies' discretion to impose rules. Yet for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation through, for instance, waivers, exemptions, or exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory …

How The Supreme Court Can Improve Educational Opportunities For African American And Hispanic Students By Ruling Against Harvard College’S Use Of Race Data, Genevieve Kelly

University of Michigan Journal of Law Reform Caveat

Students for Fair Admissions v. Harvard has not only exposed ways in which Harvard College’s admissions office unfairly assesses Asian American applicants, but it has also revealed that Harvard’s fixation on race per se can disadvantage the very African American and Hispanic students best positioned to bring instructive and underrepresented perspectives to the college. The facts show that Harvard’s “tips” and “one-pager” system values African American and Hispanic students for their ability to boost Harvard’s racial profile more than for their actual experiences confronting racial discrimination. This Comment explains how, by ruling against Harvard (and without overruling Grutter or Fisher …

Teaching Written Advocacy In A Law Clinic Setting, Tamar Ezer

Articles

Written advocacy is a critical lawyering skill and vital component of student work in many clinics. This is certainly true in appellate advocacy and policy-based clinics, such as my own focused on human rights advocacy. Teaching written advocacy requires a deliberate and thoughtful pedagogy, just as with other aspects of clinical teaching. There is a rich literature on teaching legal writing, but only sparse discussion of its applicability in the fast-paced law clinic setting, where written products have real world consequences and need to be of high quality. This article delves into this literature and argues that written advocacy consists …

No Teacher Left Behind: Reforming The Educators Expense Deduction, Mary Morris

Indiana Law Journal

American educators are notoriously overworked and underpaid. With high performance demands and near-stagnant pay, teachers tend to burn out quickly, which in turn negatively affects the quality of education that their students receive. This effect is most evident in Title I schools, public schools with low funding allocation and high concentrations of low-income students.

One of the benefits that teachers do receive is the Educators Expense Deduction, a federal income tax deduction permitting teachers to write off up to $250 of unreimbursed supplies purchased for the classroom. This deduction was codified in 2002 and has not been amended since, in …

"Pistol Shots Ring Out In The Barroom Night": Bob Dylan's "Hurricane" As An Exam (Or Course) In Criminal Procedure, Michael L. Perlin

Articles & Chapters

Bob Dylan wrote the song Hurricane to draw the public’s attention to the conviction of the boxer, Rubin “Hurricane” Carter, for a crime (multiple murders) which Carter did not commit. Dylan’s song – and its performance as a part of Dylan’s fabled Rolling Thunder Tour – brought significant public attention to this case (and the miscarriage of justice it reflected), and eventually led to the granting of federal habeas corpus (a decision affirmed by the Third Circuit) and the freeing of Carter from state prison in New Jersey. The song takes the listener from the facts of the crime, through …

Here Stood My Dreaming Tree: A Proposal To Reform Non-Lpr Cancellation Of Removal To Bring Undocumented Immigrants Out Of The Shadows, Andrea Barrientos

Cardozo Journal of Equal Rights & Social Justice

The note advocates for expanding nonLPR (non-Lawful Permanent Resident) cancellation of removal as a pathway to lawful status for undocumented immigrants. It critiques the current system’s restrictive eligibility criteria, annual caps, and high hardship standards, arguing that these limitations exclude many deserving applicants. The proposed reforms aim to eliminate the 4,000-person cap, convert the relief into an affirmative process, and lower the hardship standard to align immigration policy with U.S. values of fairness and inclusion. By doing so, the reforms would stabilize families, reduce marginalization, and bring undocumented immigrants out of the shadows.

The Corridor Of Shame: An Immersed Analysis Of South Carolina Schools, Darren R. Burton

Senior Theses

This research project discusses school funding instruments of rural and urban schools in South Carolina and uncovers its effect on student academic achievement. Educational achievement is assessed based on report card datasets between 2018 and 2019, containing South Carolina Assessment of State Standards (SCPASS) score data and South Carolina College and Career Ready Assessment (SCREADY) score data. This research project uses a comparative analysis to evaluate each group’s performance in the subjects of English Language Arts and science. The statistical analysis tools that this research project uses include analysis of variance (ANOVA), linear regression analysis, and Microsoft Power BI. The …

School Finance Reform And Professor Stephen D. Sugarman’S Lasting Legacy, Rachel F. Moran

Faculty Scholarship

Once, over lunch, I recall a law professor reflecting on scholarly work’s ephemeral nature. Legal academics, he thought, should consider themselves lucky if their articles sparked a discussion that lasted for even a few years. By that standard, Professor Stephen Sugarman’s seminal work on school finance reform, done in collaboration with John Coons and William Clune, must count as a Methuselah of academic concepts. Decades later, this research continues to prompt scholarly debate, legal advocacy, and legislative reform. In this essay, I first describe the origins of the theory of school finance reform. I then turn to the ongoing influence …

Title, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

Time’S Up: Schools Need To Teach Students About Sexual Harassment, Alyssa Nielsen

BYU Law Review

No abstract provided.

State Laws For Due Process Hearings Under The Individuals With Disabilities Education Act Iii: The Pre-Hearing Stage, Andrew M.I. Lee, Perry A. Zirkel

Journal of the National Association of Administrative Law Judiciary

This article is the third in a triad of analyses of state law additions to the basic requirements of the Individuals with Disabilities Education Act (IDEA) for due process hearings (DPHs). The first two articles of this series covered the hearing and post-hearing stages of IDEA DPHs. The purpose of this follow-up analysis is to supplement the earlier articles by canvassing state law provisions specific to the pre-hearing stage. After an introduction and overview of the literature, this article covers IDEA foundational requirements for DPHs, and then summarizes and codes the state law provisions that supplement the federal template. As …

After Bostock: 11th Circuit Extends Landmark Case And Strikes Down School’S Transgender Bathroom Policy Under Title Ix And The Equal Protection Clause, Ben T. Tuten

Mercer Law Review

When Drew Adams walked into Nease High School one fall day and was told that he could no longer use the boy’s restroom at school, he could never have known that years down the road his case would be so important to so many others. In the past decade, there has been a heated debate over transgender rights broadly, and specifically whether it was permissible to ban transgender persons from using the bathroom corresponding to their gender identity.

The landscape changed in June 2020 with the U.S. Supreme Court’s decision in Bostock v. Clayton County. In Bostock, the Court expanded …

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 …

(Un)Due Process: Adversarial Cross-Examination In Title Ix Adjudications, Suzannah C. Dowling

Maine Law Review

Campus sexual assault grievance procedures, governed by Title IX, have become a hotspot for recent debates about the contours of due process on college campuses. The Obama administration substantially revised Title IX grievance procedures to encourage reporting and adjudication of campus sexual assaults. Less than a decade later, the Trump administration rolled out its own Title IX guidance to undo many of those requirements, in the name of enhancing due process protections for accused students. One particularly controversial new requirement in the 2020 Title IX regulations is for adversarial cross-examination. This Comment argues that adversarial cross-examination in campus sexual assault …

Electronic Voting For The General Elections: An Analytical Study In Light Of The Jordanian Law, Khalid Al Zubaidy

UAEU Law Journal

A number of states, mostly developed countries, have introduced electronic voting systems that are utilized in general elections, including parliamentary, presidential, and municipal elections. The use of electronic voting systems has ever since given rise to a legal controversy; views have diverged in favor and against these systems. Questions arise regarding the pros and cons of electronic voting and its technical requirements and legal guarantees. This article addresses these questions in three sections discussing: the nature of electronic voting, the requirements for its implementation, and relevant guarantees. This article concludes that the utilizing electronic voting systems will make no difference …

Online Onboarding Corporate Governance Training In The Covid-19, Seth C. Oranburg, Benjamin P. Kahn

Law Faculty Scholarship

[Excerpt] "Director onboarding is the process by which an organization facilitates a new director stepping into the role. It is a means by which an incoming director becomes familiar with their new surroundings, the organization, their fellow board members, and other organization leaders. As such, it is an inherently personal experience that has always necessitated face-to-face interaction, whether it takes place in the boardroom and adjacent offices, company retreats, or happy hours. Until 2020, tried-and-true onboarding methods functioned effectively, and there was no reason to reimagine the onboarding process as a potentially virtual procedure. Unfortunately, the novel coronavirus brought about …

“Trumping” Affirmative Action, Vinay Harpalani

Faculty Scholarship

This Essay examines the Trump administration’s actions to eliminate affirmative action, along with the broader ramifications of these actions. While former-President Trump’s judicial appointments have garnered much attention, the Essay focuses on the actions of his Department of Justice, Civil Rights Division. It lays out the Department of Justice’s investigations of Harvard and Yale, highlighting how they have augmented recent lawsuits challenging race-conscious admissions policies by Students for Fair Admissions. It considers the timing of the DOJ’s actions, particularly with respect to Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. It examines the strategies used by …

Executive Order 13950: Insufficient Grounds For Curbing Academic Freedom, Arianna Chen

Online Blog

No abstract provided.

Because I Said So: The (Re)Production Of White, Ableist Narratives Through Legal Discourse In Endrew F. V. Douglas County Re-1, Stephen F. Fusco

Electronic Theses and Dissertations

As families and advocates of students of color labeled with dis/abilities face mounting inequities they turn to the courts seeking protection. Unfortunately, even after courts issue written decisions ostensibly designed to protect students labeled dis/abled, these students continue to experience systematic oppression in school. This is due, in part, to the discourse used by the courts when addressing issues affecting students labeled dis/abled and the elitism of the judicial system. The purpose of this study was to examine the legal discourse used in the most recent Supreme Court case concerning the education of students labeled dis/abled, Endrew F. v. Douglas …

Researching Education Law, Keith Lacy

Law Librarian Scholarship

Education law in the United States is heavily informed by principles of federalism. However, the importance of education nationally has increasingly led to the federal government’s involvement—particularly in respect to funding education and enforcing civil rights. The following is a brief description of the structure of education law in the United States, highlighting resources that may be helpful when researching legal issues involving teachers, students, and schools.

Promises Made, Promises Broken: The Anatomy Of Idaho's School Funding Litigation, John E. Rumel

Articles

This Article discusses the protracted Idaho Schools for Equal Educational Opportunity ("ISEEO") K-12 school funding litigation in Idaho - litigation initiated by plaintiffs under Idaho's state constitutional education clause in the early 1990s, which resulted in six reported decisions by the Idaho Supreme Court and two additional decisions in follow-on federal and state court cases and which, although leading to the state Supreme Court's affirming the trial court's determination that the Idaho legislature had failed to adequately fund public education under the thoroughness provision of the education clause, resulted in the state high court's dismissing the case without addressing the …

The Role Of Lawyers In Bridging The Gap Between The Robust Federal Rights To Education And Relatively Low Education Outcomes In Guatemala, Maryam Ahranjani

Faculty Scholarship

Relative to other countries in the world and in Central America, the Guatemalan Constitution and the federal education law include a robust and detailed right to education. However, literacy rates and secondary educational attainment, particularly for Indigenous people and young women living in rural communities, remain low. The COVID-19 pandemic has only exacerbated disparities. Once children return to schools after the pandemic, the gaps will be even larger. Lawyers can play a critical role in making the strong Constitutional right to education more meaningful.

Promoting Patent Practitioner Diversity: Expanding Non-Jd Pathways And Removing Barriers, Christopher M. Turoski

Vanderbilt Journal of Entertainment & Technology Law

The patent field suffers from a reciprocal problem: the cost of becoming a Registered Patent Attorney is high, and the diversity of the patent bar is low. The high cost of law school tuition (over $50,000 per year at some schools) prices out individuals from less privileged backgrounds, thereby decreasing the number of diverse candidates who could become Registered Patent Attorneys. The relatively low number of students with science, technology, or engineering (STE) degrees also restricts the number of diverse candidates who could become Registered Patent Attorneys. These factors contribute to a lack of diversity in the patent bar, reflecting …

Preserving The Fruits Of Labor: Impediments To University Inventor Mobility, Brenda M. Simon

Faculty Scholarship

Academic inventors must overcome numerous obstacles when they seek to leave their parent universities. The results of their work are often intertwined in what I call "innovation-essential components," which are important aspects of the. innovative process that create strong ties to the parent university, such as data, patents, trade secrets, grants, contracts, materials, and other agreements and restrictions. Innovation-essential components effectively bind university inventors to their parent institutions, making departure unworkable without the university's approval. Universities sometimes further complicate inventor mobility by entering into unlawful agreements with other academic institutions in their efforts to prevent inventor movement or by engaging …

Insights Into Due Process Reform: A Nationwide Survey Of Special Education Attorneys, Jane R. Wettach, Bailey K. Sanders

Faculty Scholarship

The federal law that guarantees an appropriate and inclusive education for children with disabilities relies on private enforcement; parents concerned about the inadequacy of their children’s education can take advantage of an administrative hearing to seek resolution of disputes with the child’s school district. While conceived in the Individuals with Disabilities Education Act (IDEA) as a prompt and informal tool, evidence suggests that special education due process hearings have become overly complex, prohibitively expensive, and excessively lengthy, thus limiting their accessibility and usefulness as an enforcement mechanism.

Despite numerous studies highlighting the flaws of special education due process, few have …

State Government’S Impact On Campus Services For Unaccompanied Homeless Students, Tori Nuccio

West Chester University Doctoral Projects

College campuses have been creating targeted support programs in the last decade to assist students coming from at-risk backgrounds including those who are homeless. Although research has begun to look at the impact these programs are having on the students they serve, little research has been done on how outside support has influenced the development and construct of these programs. My research addresses this gap in prior works via an exploratory study of how the existence of statewide supports, including the formation of networks, within three different cases impact colleges’ ability to build support programs. As part of a case …