Education Law Commons^™

Pathways To Liberty: What Colonial, Antebellum, And Postbellum Education Can Teach Us About Today, Danielle Wingfield

William & Mary Bill of Rights Journal

Education is a critical part of nation-building. More specifically, it can also be a powerful pathway to liberty and a tool for disseminating knowledge. However, historically it has been used to subjugate and censor vulnerable groups like women, socio-economically disadvantaged persons, as well as men of color. Therefore, to avoid subordinating members of such minoritized groups and suppressing uncomfortable historical facts, advocates must continually evaluate the purpose and method of education. Such persistent monitoring can provide a basis for constructive reform of public education in the United States. Such reform must also consider changing social conditions.

Presently, for example, public …

The Illusion Of Due Process In School Discipline, Diana Newmark

William & Mary Bill of Rights Journal

Long-term suspensions and expulsions can be enormously consequential for students and their families. Not only do exclusionary disciplinary measures directly result in lost learning opportunities for children, but school discipline decisions can also result in significant collateral consequences. These consequences range from lower rates of graduation and higher rates of contact with the criminal justice system to disruptions in foster care placements, violations of juvenile probation, and even possible immigration consequences for undocumented students.

The Supreme Court has recognized the significance of suspensions and expulsions, requiring due process for such exclusionary discipline measures. But the Supreme Court has never explained …

Applying Militant Democracy To Defend Against Social Media Harms, Neil Netanel

Cardozo Law Review

Social media inflict multiple harms on liberal democracy. Online platforms thrive on propagating emotionally inflammatory content that maximizes user engagement. Too often that entails amplifying disinformation, hate speech, online extremism, and deep-seated partisan animosity. Tellingly, as documented in testimony before the House Select Committee to Investigate the January 6th Attack, in the weeks following the 2020 presidential election, Facebook, Twitter, YouTube, and Reddit knowingly enabled a firestorm of vitriolic far-right election denial on their platforms. In so doing, a Select Committee staff report concludes, the platforms “helped to facilitate the attack on January 6th.”

In Satan We Trust: The Satanic Temple’S Ongoing Crusade To Protect Abortion Rights, Bradley Koberg

Cardozo Law Review

In the summer of 2022, the Supreme Court overruled the nearly fifty-year-old precedent of Roe v. Wade, eliminating the constitutional right to an abortion. This was one of several decisions in which the newly minted conservative supermajority undermined what could be seen as progressive precedents. At the same time, the Court has been elevating religious liberty claims and strengthening legal protections for religious individuals and organizations (predominantly Christian). For anybody who cares about the “so-called separation of . . . church and state,” this conservative Christian reformation taking place in the nation’s highest court is a cause for concern.

However, …

States’ Duty Under The Federal Elections Clause And A Federal Right To Education, Evan Caminker

Articles

Fifty years ago, in San Antonio Independent School District v. Rodriguez, the Supreme Court failed to address one of the preeminent civil rights issues of our generation—substandard and inequitable public education—by holding that the federal Constitution does not protect a general right to education. The Court didn’t completely close the door on a narrower argument that the Constitution guarantees “an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.” Both litigants and scholars have been trying ever since to push that door open, pressing …

Episode 5: Fair's Fair, Sara Gras

Season 01

One of the most commonly expressed objections to the inclusion of trans athletes is that it is fundamentally unfair, particularly to cis women and girls, to compete against trans women and girls. While this cultural belief may be ubiquitous, the science behind it is far from black and white. Without any substantive, multi-sport studies that include trans youth, much of the "evidence" of unfair advantage is merely inferred from other studies of biological difference. But with so much on the line for an already-marginalized community, we should be wary when anyone tries to justify exclusion solely on loose correlations between …

Reflecting On Academic Freedom Through Fiction: A Theatrical Exploration Of The Blurry Contours Of The Freedom To Teach, Julie Paquin, Maude Choko

The Qualitative Report

This article aims at exploring the contribution that creative forms of research can make to the study of a little-known aspect of academic freedom in the Canadian context – academic freedom in curriculum development. It seeks to address the methodological challenge posed by research on academic freedom, that is, the fact that any academic writing on this topic necessarily draws initially, though not exclusively, from the researchers’ own experiences and perspectives. The article brings to life a fictional faculty meeting, during which questions about academic freedom in teaching are discussed. Although this meeting is the product of our imagination, its …

Episode 4: Title Ix, Sara Gras

Season 01

This episode picks up where the last left off – about 50 years ago – when Title IX's enactment changed education and athletics for women and girls in some big ways. But this 50 year old statute and implementing regulations were not created with trans and non-binary students in mind. Messaging on how schools must create and adapt policies with these students in mind, including rules about athletic participation, has been inconsistent and confusing. To help address this, amendments to the regulations have been proposed. If these changes are finalized, there will certainly be improvements for trans kids in school, …

Taming The Wild West: The Time Is Near For Congress To Intervene In Name, Image, And Likeness Deals For Collegiate Athletes, Bradley Kilborn Kilborn

Belmont Law Review

This note proposes a multifaceted approach for congressional intervention in the NIL market. While there are many areas needing NIL regulation in the collegiate athletic market, the most critical area of need for NIL regulation involves the collectives and directives. These entities have formed and operated without any meaningful guardrails since the NCAA permitted student-athletes to be compensated for their NIL. Additionally, they have been able to influence recruiting both at the high school recruit level and in the collegiate athlete transfer portal.

Breaking The Fourth's Wall: The Implications Of Remote Education For Students' Fourth Amendment Rights, Sallie Hatfield

Vanderbilt Journal of Entertainment & Technology Law

As the COVID-19 pandemic forced both public K-12 and higher education institutions to transition to exclusively provide remote education, students’ homes and personal lives were exposed to the government like never before. Zoom classes and remote proctoring were suddenly the norm. Students and their families scrambled to create appropriate offices and classroom spaces in their homes, and many awkward and invasive scenarios soon followed. While many may have been harmlessly captured on camera, like classes that witness a student’s family eating lunch in the background or a dog on the couch, even these harmless instances have insidious implications for the …

Brief Of Amicus Curiae California Catholic Conference In Support Of Plaintiffs-Appellants, John A. Meiser, Meredith Holland Kessler

Court Briefs

No. 23-55714
Chaya Loffman v. California Department of Education

Appeal from the United States District Court for the Central District of California Honorable Josephine L. Staton (No. 2:23-cv-01832-JLS-MRW)

From the Argument

California’s exclusion of “sectarian” schools reflects a long history of efforts to suppress and demean disfavored religious groups in the United States.

How Discriminatory Censorship Laws Imperil Public Education, Jonathan Feingold, Joshua Weishart

Faculty Scholarship

“Discriminatory censorship laws” regulate classroom conversations about racism, gender identity, and other topics targeted in the backlash against efforts toward inclusive classrooms and curricula. This policy brief examines the proliferation of these laws and their impact on K-12 schools, including the creation of hostile learning environments that expose students and educators to a heightened threat of race- and sex-based harassment and to formal sanctions and social ostracization. The laws also foster a climate of fear and anxiety among educators, effectively coercing them to shun critical inquiry and thought on targeted topics and more generally. The result is a curriculum that …

Roberts's Revisions: A Narratological Reading Of The Affirmative Action Cases, Angela Onwuachi-Willig

Faculty Scholarship

In a seminal article published nearly twenty years ago in the Yale Journal of Law and the Humanities, Professor Peter Brooks posed a critical yet underexplored question: "Does the [flaw [n]eed a [n]arratology?"⁵ In essence, he asked whether law as a field should have a framework for deconstructing and understanding how and why a legal opinion, including the events that the opinion is centered on, has been crafted and presented in a particular way.⁶ After highlighting that "how a story is told can make a difference in legal outcomes," Brooks encouraged legal actors to "talk narrative talk" …

Inconsistencies In State Court Decisions Regarding Public School Financing Are Violating The Constitutional Rights Of Citizens: Why The Nevada Court In Shea V. State Should Have Intervened, Corinne Milnamow

University of Miami Law Review

In 1973, the Supreme Court decided the landmark case, San Antonio Independent School District v. Rodriguez, which held there was no fundamental right to education under the United States Constitution. In the years that have followed Rodriguez, state courts across the country have been left to decide issues related to public school financing. Many plaintiffs in these cases will argue that education is a fundamental right under their state’s constitution and that their respective state’s public school financing structure—one that heavily relies on local property taxes—is unconstitutional because of the discrepancies in the quality of education one will receive in …

Episode 3: Tarnished Gold, Sara Gras

Season 01

To better understand how and why sports are a part of education, this episode goes back to where they started. Although the culture of youth sports has certainly evolved, the purpose of interscholastic athletics really has not. Today, just like 100 years ago, educators value the role of sport in preparing kids for success in life. But the structures governing competition have always limited who can participate and how they are recognized. Many thanks to all the guests who contributed their thoughts.

This episode features clips from conversations with:

Kim Yuracko (Faculty Profile)
Judd and Mary Morris Leighton …

Congress's Empty Promises: The Individuals With Disabilities Education Act In The Midst Of Education Crisis, Sarah Jana

University of Cincinnati Law Review

No abstract provided.

Education, The First Amendment, And The Constitution, Erwin Chemerinsky

University of Cincinnati Law Review

No abstract provided.

Episode 2: State Of The Union, Sara Gras

Season 01

Episode 2 looks at the recent legislative push to ban transgender kids from scholastic sports across the country in the context of the anti-trans bathroom bans that preceded it. I also dive into the Soule v. Connecticut case that is so frequently referenced as an example of trans athlete exceptionalism despite the actual facts. There will be more later in the season on the organizations encouraging the passage of sports bans and supporting their defense in court, but my guests in this episode start to shed some light on who they are and what motivates their actions. I extend my …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Forgotten: Nyc And School Segregation, Deja Graham

Buffalo Human Rights Law Review

School segregation is an issue of the past and present. Generations of Black and Brown Americans have attended schools that were inadequate and unequal to their white counterparts. This inequity in access to quality education has caused issues with diversity in professional fields, like the medical and legal fields. The lack of diversity in these fields are the results of decades of school segregation due to the government’s failure to eradicate the dual system of education. Since the landmark case of Brown v. Board of Education, little progress has been made in providing Black and Brown children in metropolitan cities …

A Review Of The 2022/23 International Moots Season, Siyuan Chen

Research Collection Yong Pung How School Of Law

This is the ninth annual review of Singapore’s performance in international moot court competitions. The preceding season (2021/22) had set a high bar, considering that Singapore law schools took the top two spots in the NICA Law School Rankings. The NICA rankings are based on how law schools throughout the world perform in various international moots, with points weighted according to the scale of the competition. With six championships (including two Grand Slams) as well as a third championship final appearance in the Jessup, SMU took top spot in the NICA rankings for the second time in its history.

Revisiting The “Tradition Of Local Control” In Public Education, Carter Brace

Michigan Law Review

In Milliken v. Bradley, the Supreme Court declared “local control” the single most important tradition of public education. Milliken and other related cases developed this notion of a tradition, which has frustrated attempts to achieve equitable school funding and desegregation through federal courts. However, despite its significant impact on American education, most scholars have treated the “tradition of local control” as doctrinally insignificant. These scholars depict the tradition either as a policy preference with no formal legal meaning or as one principle among many that courts may use to determine equitable remedies. This Note argues that the Supreme Court …

Context At The Periphery: The Rise Of The Critical-Contextual Legal Education Reform Movement, Cara R. Shaffer

Cardozo Journal of Equal Rights & Social Justice

The article argues that legal education must reform by integrating critical-contextual approaches to address declining critical thinking skills and better prepare students for contemporary legal practice. It emphasizes the need to move beyond the traditional Langdell case method, which separates doctrinal learning from practical and contextual understanding, and highlights the importance of interdisciplinary perspectives in legal training.

Episode 1: More Than A Game, Sara Gras

Season 01

In Episode 1, I start to introduce you to some of the legal scholars and advocates I interviewed in my research. Their remarks all come from recorded interviews that are available in full via provided links. I excerpted these specific portions to frame my approach to discussing the significance of excluding transgender youth from playing sports with their peers. In addition to causing direct harm to individuals, participation bans create broader social harms that we should find extremely concerning. If we value the provision of a well-rounded and robust primary educational experience to all children, then it strikes me as …

Defendant St. Isidore Of Seville Catholic Virtual School's Motion To Dismiss, Michael H. Mcginley, Steven A. Engel, M. Scott Proctor, John A. Meiser, Michael R. Perri, Socorro Adams Dooley

Court Briefs

No. CV-2023-1857
OKPLAC, Inc. v. Statewide Virtual Charter School Board

From the Introduction

In 1999, the Oklahoma legislature enacted the Oklahoma Charter Schools Act, inviting both public and private organizations to establish charter schools to "promote a diversity of educational choices" for Oklahoma families. 70 O.S. § 3-134(1)(3). Through the charter school program, Oklahoma partners with these organizations to "[i]ncrease learning opportunities for students"; "[e]ncourage the use of different and innovative teaching methods"; and "[p]rovide additional academic choices for parents and schools." 70 O.S. § 3-13 l(A). So that educators have the necessary freedom to accomplish these goals, the Act …

Season 1 Prologue, Sara Gras

Season 01

This brief prologue explains a bit about who I am as host and creator of Season 1 of Hearsay from the Sidelines. You can learn more about me as a professional via my Seton Hall Law faculty profile. My interest in creating a podcast focused on the issue of transgender youth inclusion in scholastic sports grew out of a forthcoming article I wrote on podcasting as a medium for legal scholarship (draft available on SSRN). As I explain, I am not a civil rights, gender, or sports law scholar and I have not previously written about …

Title Seven Ate Nine? Extending Bostock's Meaning Of "Sex" From Title Vii To Title Ix, Julia L. Shea

St. John's Law Review

(Excerpt)

When JayCee Cooper walked out onto the platform at a women’s powerlifting competition for the first time, “everything else fell away: her years-long internal struggle over her gender identity, her decision to leave men’s sports when she began transitioning, her doubts that she would ever feel safe if she returned to competitions.” Powerlifting was JayCee’s way of feeling empowered in her own life, but after signing up for more competitions, she was told she could no longer compete because of a discriminatory policy that barred transgender women. Transgender athletes play sports for the same reasons as anyone else, including …

Education And Democracy From Brown To Plyler, Nicholas Espíritu

St. John's Law Review

(Excerpt)

Judicial review has often been cast in terms of democratic legitimacy. Democratic legitimacy is often linked to whether it institutes the will of the people through majoritarian rule and whether it creates processes for reevaluation of these prior decisions by newly constituted majorities. Judicial review of majoritarian decisions has often been criticized as a overriding or circumventing of these democratic processes. Beginning with Brown v. Board of Education, the Warren Court adopted a resolution of the “counter-majoritarian difficulty” of judicial review by tacitly accepting Justice Stone’s formulation from footnote four of United States v. Carolene Products and engaging …

Opening Remarks, Shoba Sivaprasad Wadhia

St. John's Law Review

(Excerpt)

Thank you. I am honored to be here. And there is no more fitting way to honor Michael than around the 40th anniversary of Plyler v. Doe.

This case centered on Texas statute § 21.031, which on its face, permitted the local school districts to exclude noncitizen children who entered the United States without immigration status or to charge admission for the same. The questions before the Court were: (1) whether a noncitizen under the statute who is present in the state without legal status is a “person” and therefore in the jurisdiction of the state within the meaning …

Introduction, Rosemary Salomone

St. John's Law Review

(Excerpt)

This issue of the St. John’s Law Review includes several Articles that were initially presented at the Law Review’s Fall 2022 virtual symposium. The symposium commemorated the 40th anniversary of the Supreme Court’s landmark decision in Plyler v. Doe as a starting point for discussing current immigration law in the United States. It was dedicated in memory of Professor Michael A. Olivas, who held the William B. Bates Distinguished Chair in Law (Emeritus) and was the Director of the Institute for Higher Education Law and Governance at the University of Houston Law Center. Professor Olivas, a passionate advocate of …