Education Law Commons^™

First Amendment Protection Of Teachers' Instructional Speech: Extending Rust V. Sullivan To Ensure That Teachers Do Not Distort The Government Message, Emily White Kirsch

Cleveland State Law Review

The emergence of political activism in the 2008 presidential election extended throughout the country and even to where partisan politics have no place: the public school classroom. In 2004, the New York City Board of Education enacted a regulation that prohibited teachers from wearing any material supporting political candidates or organizations. During the 2008 election, teachers who wanted to wear partisan political buttons in the classroom while teaching claimed that the regulation violated their First Amendment rights. Although the Southern District of New York ultimately held that the teachers had no First Amendment claim, the court's decision, which involved sorting …

Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This article examines the Supreme Court’s student speech framework and argues that, in focusing exclusively on the types of student speech that can be restricted, the framework fails to build in any differentiation as to how such speech can be restricted. This is true even though there are two very distinct types of speech restrictions in schools: suppression of the speech itself; and after-the-fact punishment of the student speaker. As the student speech landscape itself gets more complex – given schools’ experimentation with new disciplinary regimes along with the tremendous rise in student cyber-speech – the blurring of that distinction …

Supporting Inclusiveness At Seattle U. And In The Law, Mark Niles

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Teaching International Law: Lessons From Clinical Education: Introductory Remarks, Richard J. Wilson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Drug Testing Students In California – Does It Violate The State Constitution?, Floralynn Einesman

Faculty Scholarship

The Department of Education has granted federal funds to California school districts for the purpose of initiating and maintaining drug-testing programs for students and volunteers involved in athletics and extracurricular activities, yet no California court has fully examined these programs to determine their validity under the California Constitution. Before any additional California schools adopt drug-testing programs, the legality of these programs should be examined under the California Constitution. This Article seeks to accomplish that task. Part II summarizes the United States Supreme Court decisions on student drug testing. Part III examines state law on student drug testing. Part IV focuses …

Table Of Contents

The Journal of Law and Education

No abstract provided.

Supreme Court Decisions

The Journal of Law and Education

No abstract provided.

Primary & Secondary Education

The Journal of Law and Education

No abstract provided.

Coaches Corner

The Journal of Law and Education

No abstract provided.

Commentary

The Journal of Law and Education

No abstract provided.

Kentucky And Education Reform: The Issue Of Pay-For-Performance, Gayla Cissell

The Journal of Law and Education

No abstract provided.

Book Review

The Journal of Law and Education

No abstract provided.

Education Law Association, Zorka Karanxha

Educational Leadership and Policy Studies Faculty Publications

No abstract provided.

Hunt V. Mcnair, Zorka Karanxha

Educational Leadership and Policy Studies Faculty Publications

No abstract provided.

Sex Education And Rape, Michelle J. Anderson

Michigan Journal of Gender & Law

In the law of rape, consent has been and remains a gendered concept. Consent presumes female acquiescence to male sexual initiation. It presumes a man desires to penetrate a woman sexually. It presumes the woman willingly yields to the man's desires. It does not presume, and of course does not require, female sexual desire. Consent is what the law calls it when he advances and she does not put up a fight. I have argued elsewhere that the kind of thin consent that the law focuses on is not enough ethically and it should not be enough legally to justify …

Sliding Towards Educational Outcomes: A New Remedy For High-Stakes Education Lawsuits In A Post-Nclb World, Christopher A. Suarez

Michigan Journal of Race and Law

Sheff v. O'Neill ushered in a new wave of education reform litigation that may challenge the constitutionality of de facto segregation under state education clauses, but its remedy has been inadequate. This Note proposes a new desegregation remedy-the sliding scale remedy-to address socioeconomic isolation in this unique constitutional context. The remedy employs varying degrees of equity power depending on students' academic outcomes. It balances concerns over local control and separation of powers with the court's need to effectuate right, establishes a clear remedial principle, and ensures that states and school districts focus on students as they implement remedies.

Judicial Humility: The Enduring Legacy Of Rose V. Council For Better Education, William E. Thro

Kentucky Law Journal

No abstract provided.

Foreword: Rights, Remedies, And Rose, Scott R. Bauries

Law Faculty Scholarly Articles

In this Foreword to the University of Kentucky’s “Rose at 20” Special Feature, I seek to introduce the three featured articles, as well as to identify two major paradigm shifts in school finance litigation that grew out of the Kentucky Supreme Court’s decision in Rose v. Council for Better Education. The Rose decision is commonly thought of as a bridge between prior education litigation strategies founded primarily on theories of equity or equality and subsequent litigation strategies founded primarily on theories of adequacy. Although the distinction between these two strategies is well-worn, it obscures two important changes to …

No Child Left Behind: Disincentives To Focus Instruction On Students Above The Passing Threshold, Christina Payne Tsoupros

Journal Articles

As a result of the No Child Left Behind Act (NCLB), schools place a great emphasis on standardized testing. Students at risk of failure are identified for additional instruction. This is aligned with the adequacy (versus equity) framework of school finance litigation, which seeks to bring the bottom up to a certain minimum level. Under the adequacy ideology, the focus is on achieving a minimum threshold of proficiency. In low performing schools where a high percentage of students are at risk of failing the test, a focus on the minimum creates disincentives to work with students performing at or above …

The Negro National Anthem Controversy, Wendy Tolson Ross

Faculty Works

Recently, the Negro National Anthem has been the source of much controversy. For some Americans, it is a source of celebration of the rich black heritage and legacy. For others, it is a source of shame-an ugly remnant of our dark past that is no longer relevant today. The reading and singing of the Negro National Anthem has been a topic of discussion in the news, the black community, and in the legal and political professions. This article will look at the raging controversy. Specifically, this paper will look at the controversy surrounding the Negro National Anthem at the Texas …

College Bullies - Precursors To Campus Violence: What Should Universities And College Administrators Know About The Law, Susan H. Duncan

Villanova Law Review (1956 - )

No abstract provided.

Expectation Damages The Objective Theory Of Contracts And The Hairy Hand Case A Proposed Modification To The Effect Of Two Classical Contract Law Axioms In Cases Involving Contractual, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

The Politics Of Supplementing Failure Under No Child Left Behind: How Both Left And Right Are Forcing Low-Income Children To Choose Between A Deficient Education And Working Overtime, Monica Teixeira De Sousa

Nevada Law Journal

This Article analyzes NCLB's Supplemental Educational Services provision and exposes its shortcomings. Part I introduces the voluntary overtime work approach of SES and highlights its flaws and limitations. Research reveals that the voluntary overtime work model is designed for the exceptional student and does not provide meaningful opportunities to the majority of students in under-performing schools. Part II presents the legal and political context in which policymakers created SES and shows how they failed to assess realistically the many challenges facing students today. In particular, the legislative history reveals that ideology--a blend of free-market and “pull yourself up by your …

Standard Of Care For Students With Disabilities: The Intersection Of Liability Under The Idea And Tort Theories, Ralph D. Mawdsley

Law Faculty Articles and Essays

This article explores issues of legal liability for school personnel where students with disabilities are injured in school settings or cause injuries to employees and other students in schools. While questions related to legal liability are varied, they tend to fall within two broad areas: standard of care relating to injuries to or by students; and, standard of care for employees working with students with or training others to work with students with disabilities. In both areas, the legal issue revolves around the concept of heightened standard of care, especially where framed by the language of students' IEPs (Individualized Education …

High Hopes Hamstrung: How The “Trial De Novo” For Termination Of Tenured Teachers’ Contracts Undermines School Reform In Oklahoma, N. Georgeann Roye

Oklahoma Law Review

No abstract provided.

University Endowments: A (Surprisingly) Elusive Concept, Frances R. Hill

Articles

Even as certain policy makers press for mandatory payouts from endowments, the concept of an endowment remains surprisingly elusive. In the absence of either operational concepts of endowments or well-established metrics for identifying and measuring endowments, public policy discussions proceed with an implicit model of an endowment as "money in waiting" that is not currently in use for exempt educational purposes. This Article suggests that endowments, however conceptualized or measured, are better understood as "money in use" even though it is not being distributed. It argues that most endowment money is currently in use for at least two purposes. The …

Vouchers For Students With Disabilities: The Future Of Special Education?, Wendy F. Hensel

Faculty Publications By Year

Many voices over the last decade have called for reform in special education in American public schools. As the number of those receiving services under the Individuals with Disabilities Education Act (“IDEA”) has grown, scholars and pundits have increasingly argued that the system not only is failing to meet the needs of many children with disabilities, but in some cases is actively causing harm to those it is intended to serve.

Over the last several years, an increasing number of state legislatures have proposed or have passed laws that give children with disabilities public money to attend a private school. …

Human Capital And Transfer Taxation, Kerry A. Ryan

All Faculty Scholarship

This article addresses the question of whether education and healthcare transfers should be included in the federal gift tax base. It initially frames the issue in two ways: (1) through the lens of a proposal by the American Law Institute to exempt all “transfers for consumption” from gift taxation, and (2) within the context of a debate among economists about whether such expenditures should be included in the definition of “intergenerational transfers” for purposes of determining the total share of such transfers in U.S. accumulated wealth. Finding the first lens unsatisfactory on its own doctrinal terms and the second lens …

Enhancing Enforcement Of Economic, Social, And Cultural Rights Using Indicators: A Focus On The Right To Education In The Icescr, Sital Kalantry, Jocelyn E. Getgen, Steven A. Koh

Cornell Law Faculty Publications

Nearly fifteen years ago, Audrey Chapman emphasized the importance of ascertaining violations of the International Covenant on Economic, Social and Cultural Rights (ICESCR) as a means to enhance its enforcement. Today, this violations approach is even more salient given the recent adoption of the Optional Protocol to the ICESCR. This article focuses on the right to education in the ICESCR to illustrate how indicators can be employed to ascertain treaty compliance and violations. Indicators are important to enforcing economic, social, and cultural rights because they assist in measuring progressive realization. The methodology that we propose calls for: 1) analyzing the …

Is There An Elephant In The Room?: Judicial Review Of Educational Adequacy And The Separation Of Powers In State Constitutions, Scott R. Bauries

Law Faculty Scholarly Articles

Scholarship of education finance adequacy litigation has nearly universally acknowledged the thorny separation of powers problem that this form of litigation presents for state courts. This scholarship tacitly assumes a uniform approach to separation of powers among the states – one that defaults to the federal approach. Proposals for adjudicatory reforms purport either to respect separation of powers principles as we know them from federal case law or to reject the notion that such principles should have real operation in any state courts. However, this scholarship has not addressed, or even acknowledged, what would seem to be a very large …