Thursday, June 6, 2013

Recent scholarship

The Schempps at the Supreme Court
Douglas Laycock (Virginia) tells the story of the plaintiffs in the landmark Supreme Court school prayer case, Abington School District v. Schempp, in Edward Schempp and his family,  38 J. Sup. Ct. Hist. 63-79 (2013). Professor Laycock explains the historical context of the Pennsylvania statute that was the subject of the Supreme Court case (that required that ten verses be read from the Holy Bible, “without comment,” every day in every school) and discusses the family dynamics that pushed the Schempps to challenge the law. Professor Laycock relates an amusing story of a high school principal's futile attempt to punish the lead plaintiff in the case: "The principal wrote negative letters of recommendation for all the college applications of Ellery Schempp and contacted the admissions officer at Tufts University to urge that Ellery be rejected." Tufts admitted Schempp anyway. Wiley Library has a full-text version of Professor Laycock's article online here.

 In keeping with Professor Laycock's look back at plaintiffs in landmark education law cases, we also note the recent passing of Alton T. Lemon, civil rights activist and lead plaintiff in Lemon v. Kurtzman, on May 26. Read the New York Times' obituary here.

Regretting Roth? Why and How the Supreme Court Could Deprive Tenured Public Teachers of Due Process Rights in Employment, 44 Loy. U. Chi. L.J. 591 (2013), discusses the Supreme Court's discomfiture with the Roth/Perry test (that determines if a public employee has a right to employment protected under due process) and theorizes that the Court may substitute an alternative framework for determining the presence of a protected interest-- the “atypical and significant hardship framework." If the Court chooses the latter test, author Karl D. Camillucci (Holland & Knight LLP, Chicago) argues, tenured teachers’ claims under due process will  be substantially restricted.

More than a straightforward book review, Gregory Duhl (William Mitchell) details his personal experience with Borderline Personality Disorder in his article, Over The Borderline--A Review of Margaret Price’s Mad at School: Rhetorics of Mental Disability and Academic Life, 44 Loy. U. Chi. L.J. 771 (2013). Here's an excerpt from the abstract: "This Article is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability and Academic Life, Professor Margaret Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this Article, I place Price’s work in a legal context, discussing why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique."

Teachers’ online conduct has been a popular topic for legal scholarship this year, and two articles this week discuss the perils for teachers with technology. In Streaming While Teaching: The Legality of Using Personal Streaming Video Accounts for the Classroom, 23 Alb. L.J. Sci. & Tech. 221(2013), Jonathan I. Ezor (Touro) examines the applicability of the fair use defense and the Copyright Act § 110(1) when teachers use personal accounts on services such as Amazon, Hulu, and Netflix to stream copyrighted content in the classroom.

In Facebook Off Limits? Protecting Teachers' Private Speech on Social Networking Sites, 47 Val. U. L. Rev. 119 (Fall 2012), Valparaiso student Lumturije Akiti argues that the Supreme Court’s Pickering-Connick balancing test leaves teachers largely unprotected from being disciplined for their private social networking. Akiti reasons that Pickering places too much weight on teachers’ duties rather over their being members of the general public, because much of teachers’ speech on social networking sites do not implicate the government's interest as an employer. Teachers' lawsuits challenging terminations based on social media communication are also unlikely survive summary judgment because such private speech will rarely meet Connick's threshold "matters of public concern” requirement. Akiti notes that courts' interpretation of Pickering-Connick has led to inconsistent results, as some courts have rejected FIrst Amendment political speech claims simply because the forum in which the speech was posted mostly discussed private matters.


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